Leaking Flynn's name to the press was illegal, but utterly justified
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Lost in the fallout from Michael Flynn’s phone calls to Russian ambassador Sergei Kislyak is an uncomfortable question: Were the former National Security Advisor’s civil rights violated when his identity and the subject of those phone calls were leaked to the press?

It’s been lost because of the magnitude of Flynn’s actions.

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Flynn was attempting to conduct official diplomacy while a private citizen, which may be illegal under the Logan Act. He was conducting that diplomacy without authorization and was doing so with a foreign government that is trying to undermine Washington’s interests around the world. And it also raises critical questions about how much the rest of the administration knew.

 

It’s further uncomfortable because as serious as Flynn’s actions were, we might not be aware of them if one or more insiders hadn’t broken the law by leaking the intelligence to the press.

The legality of monitoring Flynn’s conversations with Kislyak is not in question, because Flynn was not the target. While the NSA is not supposed to eavesdrop on American citizens, collecting intelligence on foreign citizens and diplomats operating in the United States is standard practice.

The U.S. Foreign Intelligence Surveillance Act (FISA) was passed in 1978 as a compromise between those who wanted to maximize judicial oversight of wiretapping, and the legitimate national security need for a nimble, quick and practical tool to collect foreign intelligence. Thus, FISA protects U.S. citizens from unconstitutional surveillance while allowing America’s spy services to listen to the communications of foreigners.

However, it is inevitable that some Americans will get caught up in foreign surveillance when they’re on the other end of the phone line or email. In those situations, “minimization” procedures are in place to protect the identity of the American — “unless such person’s identity is necessary to understand foreign intelligence information or assess its importance.”

There is no question Flynn’s identity was necessary for intelligence officers who were analyzing the phone calls with Kislyak to understand their significance.

But while identifying Flynn internally was legal (and there is no evidence that minimization procedures weren’t followed), leaking his name to the media was not. The Espionage Act prohibits the disclosure of information “concerning the communication intelligence activities of the United States or any foreign government.”

Leaking national security intelligence should never be taken lightly. It could have unforeseen circumstances that put future operations, or even American lives, in danger. But in these extraordinary circumstances, it was justified.

That’s because America’s Russia policy is critical, and not just when it comes to defining the scope and content of relations between Washington and Moscow. It is also critical to setting the goals and means of U.S. policy on the Islamic State, Syria, Ukraine, arms control, Iran, China, and the European Union (just to name a few places where Washington’s and Moscow’s preferences might clash).

And with Flynn’s outsized role in Trump’s security and foreign policy team — given a diminished National Security Council and a lack of key appointments, such as deputy secretaries of State and Defense — if he was compromised, it would raise serious concerns about Russia’s ability to influence American policy in its favour.

Those concerns outweigh Flynn’s Fourth Amendment privacy rights and are symptomatic of the general state of foreign policy making at the White House, which appears to be adrift.

Flynn was not a low-level intelligence officer in a vulnerable position. As a member of the incoming administration, his actions had far-reaching consequences — and as a former director of the Defense Intelligence Agency, he should have known any communications with Kislyak could be monitored.

He has the same rights as any other American citizen, but this shouldn’t set a precedent for how ordinary American citizens’ communications are handled if they get caught up in a FISA dragnet.

Instead, this was a case where illegal leaks may have compromised one American’s rights (and likely marks an ignominious end to what was once a brilliant career), but the greater American interest made it a reasonable and necessary sacrifice.

Stephanie MacLellan is a research associate with the Centre for International Governance Innovation, specializing in Internet governance and cybersecurity. Simon Palamar manages the Constructive Powers Initiative at the Centre for International Governance Innovation.


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