I see that Andrew McCarthy is flogging the bejesus out of the same dead horse that he wrote about last week in National Review. This week’s McCarthy column ( …https://www-nationalreview-com.cdn.ampproject.org/c/s/www.nationalreview.com/2020/05/michael-flynn-was-not-masked-because-fbi-framed-him-as-a-clandestine-agent-of-russia/amp/) /1

claiming vindication in the Washington Post’s reporting that Michael Flynn was never masked in the first place is like the Chicago Tribune claiming accuracy for reporting that a presidential election had occurred in defense of its “Dewey Defeats Truman” headline. /2

Even a broken clock is right twice a day.

I’m as opposed as anyone to the leaking of classified information but, as I wrote last year, no statute actually makes “leaking” a crime. ( https://www.fpri.org/article/2019/05/the-new-assange-indictment-persecuting-the-press-or-the-overdue-protection-of-national-security-secrets/). Feigning outrage over a Flynn-related “leak” affords no basis for /3

McCarthy’s consistent misrepresentations regarding the handling of Michael Flynn’s identity in intelligence reporting in late-2016 and early-2017.

First, McCarthy needs to try and grasp the distinction between classification and minimization. /4

Information collected under FISA usually is classified, but that decision is predicated on the actual substance of the information and/or the sources and methods used in acquisition - not simply because it is collected under the authority of FISA. /5

The point of such classification is to protect against disclosing information where disclosure would harm the national security - and that decision rarely is predicated solely on the identity of any individual who is mentioned in the collection. /6

The question of disclosing identities or, more specifically, US Person identities in intelligence product is a minimization issue - not one of classification. And, if McCarthy wants to speak knowledgeably about minimization, he ought to consult actual minimization rules - /7

not some general pamphlet issued by ODNI.

Most minimization rules used in connection with FISA are classified in conjunction with the FISA applications to which they apply. However, Section 702 of FISA requires that DNI conduct a classification review and release a redacted /8

version of the minimization procedures used in connection with 702 collection. Thus, there are real minimization procedures available to McCarthy if he really wants to read them.

Had McCarthy looked at, say, NSA’s Section 702 Minimization Procedures /9

(NSA being the agency principally responsible for 702 collection),he would see that dissemination of US Person identities has nothing to do with classification. He would also see that a basic principle of minimization is that US Person identities can be released, /10

or “unmasked” in the trending vernacular, where the identity is necessary to understand the intelligence or assess its importance.

Now, as I Tweeted last week after McCarthy’s first misleading article on this topic, only certain senior government officials have the right to /11

request such “unmasking,” each request must meet the standards of those NSA Minimization Procedures, and each must be approved by a limited group of senior NSA officials. Among the stated bases for such “unmasking” is that, for example, /12

“the information indicates that the United States person may be the target of intelligence activities of a foreign power.” Just saying.

It certainly strikes me that senior US policymakers in late-2016 would want to know who was speaking to Kislyak about US sanctions imposed /13

after the unprecedented Russian interference in the US presidential election and requesting that the Russians mute their response to those sanctions. After all, the conclusions of the US IC contained in the “Intelligence Community Assessment”released just a week later /14

confirmed that (a) “Russia’s goals were to undermine public faith in the US democratic process, denigrate Secretary Clinton, and harm her electability and potential presidency,” and /15

(b) that “the Russian Government aspired to help President-elect Trump’s election chances when possible by discrediting Secretary Clinton and publicly contrasting her unfavorably to him.” So, it seems to me, the need to fully understand and assess the information that a US /16

Person was speaking to a senior Russian official about those US sanctions and suggesting that the incoming government might view the world differently would seem to clear the bar for disseminating the identity of that US Person even without knowing the specifics of /17

the governing FBI minimization procedures.

McCarthy may hate the Logan Act, but the least that a US Person should expect if they’re communicating with a foreign official of the country that just interfered with a US presidential election and whose communications with that /18

foreign official are incidentally collected as part of a perfectly legal FISA surveillance is that his or her identity is likely to be properly released under governing minimization rules.

I know that McCarthy has an agenda in beating this dead horse /19

but I can’t abide his misuse of ‘intelligence-speak” to further that agenda when he either misunderstands or is deliberately obfuscating the intelligence collection and dissemination issues associated with the intel reporting on Michael Flynn. /20