The Real Trouble with Taking Down Mike Flynn
(Titanic Passengers Cheering…the Iceberg?)
I get it. General Mike Flynn was kind of a far-right wingnut. He tweeted a stupid “fake news” story about Hillary Clinton sex slaves. He lied to Vice President Pence when he said he’d never spoken to the Russians about sanctions. He deserved to be fired. No argument with any of those points.
HOWEVER…there’s a bad, bad problem with the way Flynn was taken down.
Here’s what happened in a nutshell: after the election, former National Security Advisor Flynn spoke to the Russian ambassador about the sanctions President Obama had imposed on Russia for its reported interference in our election. Flynn denied ever speaking about the sanctions. Then anonymous sources in the intelligence community revealed to the Washington Post that Flynn’s phone conversations with the ambassador had been recorded, and Flynn did indeed talk about the sanctions. No transcripts of the conversations were released, just the accusation that sanctions had been discussed. These discussions may have violated the Logan Act, which prohibits private citizens from negotiating on behalf of the government. When questioned, Flynn changed his answer and said he had discussed the sanctions. He was fired, not because the Trump administration said he had done anything illegal, but because he had lied to his superiors about it. His dismissal led to much cheering in the democratic party and elsewhere.
From my position as a retired intelligence soldier, I see four major issues with Flynn’s dismissal. First, leaking classified information is a crime. Second, whoever recorded General Flynn probably broke the law. Third, the possible Logan Act violation is way overblown. But the fourth issue is biggest, and I’ll address it shortly.
This should go without saying, but any intel we collect by intercepting electronic communication is classified. An intercepted and recorded telephone call would be Secret or Top Secret. Intentionally leaking Secret or Top Secret intelligence is a crime. Period.
A common justification for recording Flynn’s phone conversation is, “They were spying on the Russian ambassador, not Flynn.” My answer as a former intel guy is, “Who cares?”
A little-known fact about the intel community is that we are specifically prohibited from collecting on “US Persons,” which are American citizens, corporations and organizations, plus legal resident aliens, unless we receive specific permission and follow very strict legal procedures. Intelligence Oversight laws governing intelligence collection apply whether I meant to collect on an American citizen or not; if, for example, I was collecting intel on a Taliban leader in Afghanistan and discovered he was actually an American, I’d have to stop and report it up the chain. Intel agencies way higher than I ever was would evaluate the intelligence I had already collected, ask for authorization to collect on the American, and follow strict guidelines and procedures to ensure they weren’t violating the American’s civil rights.
“Such procedures shall protect constitutional and other legal rights and limit use of such information to lawful governmental purposes;” Intel oversight laws are designed to prevent the intel community from violating the rights of American citizens, and there’s a damn good reason those laws exist.
So spying on General Flynn was a crime if it was done intentionally and without specific legal permission. It could also have been a crime if it was unintentionally collected, but not subsequently put through the proper procedures to ensure it could still be used. And without question, releasing intelligence collected on an American citizen to the press in order to cause political damage is not a “lawful governmental purpose.”
But, many will say, the REAL problem is that Flynn violated THE LOGAN ACT by negotiating with a foreign government as a private citizen, and that justifies breaking the law to expose him. The Logan Act was passed because a private citizen really pissed off the federal government by negotiating with France…in 1798. The law was passed in 1799. In the intervening 218 years, not a single person has been prosecuted for violating this law.
If Flynn did actually negotiate with the Russian ambassador about sanctions, he violated the Logan Act. That would be a felony. But we don’t even know if he really negotiated anything; transcripts of the conversations between Flynn and the ambassador haven’t been released, and it’s possible that Flynn discussed the sanctions without “negotiating.” The fact that just enough information was released to raise the specter of a Logan Act violation, without enough evidence to actually show a violation, leads me to believe the leak was just a trick to create inflammatory, Yellow Journalism headlines.
So unnamed sources in the intel community may have been committed a crime by spying on General Flynn, and definitely committed a crime by leaking classified information, in order to expose an act that doesn’t appear to have been a crime at all.
BUT MOST IMPORTANTLY…
As incredible as this might sound, government intelligence agencies have historically used their power to collect intelligence on their own citizens. We’re all aware of Nazi Germany’s routine spying on the German public, and the Soviet Union’s vast network of informants who would report forbidden speech or opinions to the communist government. We know North Korea spies so much on its people that they live in a state of perpetual terror. But many Americans don’t know that American intelligence agencies have also abused their power for political purposes. Or, I should say, many Americans are probably aware but don’t care as long as it’s only their opponents being targeted.
In the mid-70s, the CIA and FBI were embroiled in multiple scandals when the extent of their spying on Americans for political purposes was revealed. The COINTEL (Counter Intelligence) Program, also known as COINTELPRO, targeted communists, Vietnam War protesters, civil rights organizations and Native American protest groups, and involved repeated violations of citizens’ freedom of speech and association. Far worse violations appear to have been committed, including intentionally false accusations by the FBI which led to illegal police raids which killed leaders of the Black Panthers (whatever you think about the original Black Panthers, they definitely had one hell of a legitimate grievance to protest).
The FBI also targeted “agitators” like Martin Luther King Jr. In addition to being a civil rights icon, MLK Jr. apparently had a pretty wild sex life which the FBI used to blackmail him. Some of his activities were recorded with hidden microphones in hotel rooms, and the FBI then sent MLK Jr. an anonymous letter with the recordings. The letter urged King to commit suicide, and gave him a time frame in which to do it.
Investigations into the FBI and CIA revealed that every president from FDR to Nixon used the intel community to spy on political opponents. Those abuses are why Intelligence Oversight law was created.
Whichever side of the political aisle you’re on, you really shouldn’t want the government spying on Americans and releasing damaging information to the public. We don’t want the vast spying capability of the US government turned toward Americans whose only “threat” is a difference of political opinion. And I can’t understand for a second why anyone would rail against the Patriot Act or NSA collection of metadata while laughing about the way Flynn was brought down.
The cheering about leaked intelligence, which may have been illegally collected in the first place, to take down a political opponent, is shortsighted at best and incredibly stupid at worst. The balance of power always shifts in America; Flynn and the Trump administration are the targets right now. But eventually we’ll have a democrat administration, with disgruntled conservatives holding key positions in the intelligence community, and those conservatives will have the power to abuse their positions to attack people they don’t like. Those celebrating Flynn’s takedown won’t like seeing their people brought down by classified leaks of what amounts to rumor and innuendo.
So you don’t like President Trump? Me neither. You want his administration taken down? Either find actual evidence of wrongdoing, or vote him out. But don’t dance in the streets because your government used its power to disgrace an American citizen you don’t like. Celebrating your government for abusing its power to spy on us is like cheering for the iceberg from the deck of the Titanic because you don’t like the First Mate. Someday that abuse will be turned around on you, and when it does you probably won’t find much to cheer about.
(Note: Everything discussed above is open source information, most of it dug up on the internet during a break in stage routines at Nancy’s Squat’n’Gobble.)
Breach-Bang & CLEAR!
Emergency: Activate firefly, deploy green (or brown) star cluster, get your wank sock out of your ruck and stand by ’til we come get you.
Chris Hernandez (Mad Duo Chris), seen here on patrol in Afghanistan, may just be the crustiest member of the eeeee-LITE writin’ team here at Breach-Bang-Clear. He is a veteran of both the Marine Corps and the Army National Guard who served in Iraq and Afghanistan. He is also a veteran police officer of two decades who spent a long (and eye-opening) deployment as part of a UN police mission in Kosovo. He is the author of White Flags & Dropped Rifles – the Real Truth About Working With the French Army and The Military Within the Military as well as the modern military fiction novels Line in the Valley, Proof of Our Resolve and Safe From the War. When he isn’t groaning about a change in the weather and snacking on Osteo Bi-Flex he writes on his own blog. You can find his author page here on Tactical 16.