What is ‘unmasking?’ Flynn disclosures put spotlight on practice
Top Obama administration officials purportedly requested to “unmask” the identity of former national security adviser Michael Flynn during the presidential transition period.
A list of names of Obama officials — including former vice president Joe Biden– who sought to “unmask” Flynn was released Wednesday, amid accusations from President Trump and his allies that President Obama and his top deputies targeted the incoming Trump administration.
It was revealed last week that Obama was aware of the details of then-incoming national security adviser Michael Flynn’s intercepted December 2016 phone calls with then-Russian Ambassador Sergey Kislyak.
The law that allows the federal intelligence community to spy on foreign actors, the Foreign Intelligence Surveillance Act, has safeguards in place that are designed to protect Americans who are “incidentally” recorded. One protection is that they must be “masked.”
What is unmasking?
When a U.S. Intelligence Agency, such as the National Security Agency, conducts surveillance of a foreigner inside the U.S., sometimes that surveillance picks up the name of an American that the foreigner is speaking to or about. When this happens, intelligence analysts are obliged to hide or “mask” the name of the American if their participation is incidental and no wrongdoing is suspected.
The report or transcript of the surveillance usually lists the masked American’s name as “Person 1.”
“If, for instance, an intelligence piece were about Russian intelligence assets engaged in an operation to influence political figures, the identity of the political figure would be necessary,” said Todd Hinnen, head of the Justice Department’s National Security Division during the Obama administration and a National Security Council staff member under George W. Bush. “Unless you know the answer to that question, you can’t appreciate the meaning and importance of the intelligence.”
Why would an American be unmasked?
If a member of the intelligence community decides they need more information on the intelligence reports they are receiving about a foreign actor, they can request to unmask Person 1.
In Flynn’s case, the National Security Agency was surveilling Russian ambassador Sergey Kislyak.
It had been reported that Flynn had discussed sanctions with Kislyak, an action viewed as undermining the Obama administration. When they heard Kislyak discussing sanctions with Person One, US intelligence officials wanted to confirm this was Flynn.
Is it illegal to unmask an American’s name?
It is not illegal to unmask the identity of an American incidentally swept up in foreign surveillance, but Fox News Senior Judicial Analyst Andrew Napolitano said the unmasking must have a national security rationale.
Unmasking the name or names of Americans for political purposes would be highly improper. Leaking those names to the media would be a crime, according to legal experts. Flynn’s resignation amid reports he was caught discussing sanctions with Kislyak on surveillance indicates someone did.
Who can unmask an American’s name?
Members of U.S. intelligence agencies, but it varies by agency as to who has the clearance. In the Flynn unmasking, it appears to be mostly senior Obama officials, members of the Treasury Department, ambassadors and NATO representatives.