Michael Flynn’s unmasking: What you need to know

Most of the time, few Americans give much thought to "unmasking," a practice whereby senior officials can request the identities of Americans who show up in U.S. intelligence reports and intercepts.

But Republicans have begun using it as a weapon against Democratic presidential nominee Joe Biden.

On May 13, two Republican senators, Ron Johnson of Wisconsin and Chuck Grassley of Iowa, released a document that includes a list of all the Obama administration officials who requested the unmasking that produced Flynn’s name between Nov. 8, 2016, and Jan. 31, 2017. It was prepared for acting Director of National Intelligence Rick Grenell.

The document’s release comes as the Justice Department seeks to end the prosecution of former Trump administration National Security Adviser Michael Flynn.

Flynn resigned from his position in Trump’s administration in 2017 over contacts he’d had with senior Russian officials that may have addressed lifting sanctions on Russia that had been imposed by Trump’s predecessor, Barack Obama. Flynn had denied that he talked with the Russians even though he had.

Eventually, Flynn pled guilty to lying to the FBI and became a cooperating witness in Special Counsel Robert Mueller’s investigation, which probed Russian election interference and possible coordination between the Trump campaign and Moscow.

But Flynn later hired new lawyers who took an aggressive posture, seeking internal FBI memos and, eventually, a dismissal of charges. After Attorney General William Barr asked Jeff Jensen, the U.S. attorney in St. Louis, to review the case, Jensen concluded that a dismissal of the case was warranted, and Barr agreed.

The Justice Department now argues that the FBI had no basis to continue investigating Flynn after failing to find illegal acts. Flynn’s answers during the FBI interview were equivocal, not false, and weren’t relevant to the investigation, the department said. 

The most notable name on the newly released list of officials who requested an unmasking is Democratic presidential candidate Joe Biden, who was then the vice president. And the political parties have sharply different takes on what the list means.

Biden spokesman Andrew Bates said that that "these documents simply indicate the breadth and depth of concern across the American government" and that the declassified documents "confirm that all normal procedures were followed."

However, many Republicans, including the senators that released the documents, say the list of names forms the core of an Obama administration conspiracy to target Flynn and undercut the incoming national security adviser. Grassley said the document’s release means the "focus on these issues is even more important now."

We wanted to explain what unmasking is and fact-check some of the claims about it from both sides.

Senior government officials can request the identity of an American citizen who has appeared unnamed in intelligence reports. The idea is that national security officials, at least in some cases, need to know the identity in order to fully understand the intelligence being presented to them. That process is called "unmasking."

Usually, American identities are protected in reports on the communications, such as intercepted telephone calls, involving people under investigation or surveillance. This is called "minimization," and it’s partly why data collection from Section 215 of the Patriot Act is considered legal and not unduly intrusive. Americans’ communication is not monitored unless they are under investigation, but it’s possible to be caught up unintentionally if they communicate with someone who is under investigation or a foreign individual under surveillance.

The new document lists unmasking requests that produced Flynn’s name from intelligence collected by the National Security Agency, though surveillance from other agencies can be subject to unmasking as well.

It’s also important to note that the document released by the senators did not find any wrongdoing in the requests for unmasking. The document says, "Each individual (on the list) was an authorized recipient of the original report and the unmasking was approved through NSA’s standard process, which includes a review of the justification for the request."

Biden and others were offered access to Flynn’s name through the unmasking process, according to the document released May 13.

Sen. Rand Paul, R-Ky., was essentially accurate when he said that "Biden and more than a dozen Obama administration officials requested and received the power to unmask Flynn.’"

In addition to Biden, the newly unclassified document includes almost two dozen other officials in senior Obama administration positions and a few more that have had their names redacted. 

Several of the officials on this list were well-known figures within the administration, including Director of National Intelligence James Clapper, CIA Director John Brennan, Treasury Secretary Jacob Lew, FBI Director James Comey, White House Chief of Staff Denis McDonough, and Ambassador to the United Nations Samantha Power. Others were more obscure.

The only potential inaccuracy we could find in Paul’s remark is that some of these requests may have been made in the officials’ names by aides, according to the New York Times. 

Michael Morell, who served as CIA director earlier in Obama’s presidency, told the Times that in some cases, requests logged as coming from a senior official may instead have been requested by an officer tasked with briefing that senior official.

The pro-Trump social media personalities Diamond and Silk drew this conclusion in a Facebook post that featured images of the list of Obama administration officials:

"Obama knew. Clinton knew. Biden knew. Comey knew. Brennan knew. McCabe knew. Strzok knew. Clapper knew. Rosenstein knew. FBI knew. DOJ knew. CIA knew. State knew. They all knew it was a lie, a witch-hunt, a scandal, a plot, a conspiracy, a hoax. #ObamaGate #SubpoenaObama."

This assertion is inaccurate in several ways.

First, four of the officials on the Diamond and Silk list aren’t actually included in the unmasking list. One is Hillary Clinton, who was a losing presidential candidate by then and had no position in the U.S. government. Also not on the list are former Deputy FBI Director Andrew McCabe, former FBI agent Peter Strzok, and Rod Rosenstein, who was at the time U.S. Attorney for Maryland and later became deputy attorney general.

Second, Diamond and Silk ignore a key sentence of the unmasking document — that "while the principals are identified below, we cannot confirm they saw the unmasked information." 

Third, there is no guarantee that Flynn would have been directly targeted by these requests. Some of the requests may have involved inquiries about foreign officials who were talking about Flynn, the Times reported.

Finally, requesting an unmasking does not prove that any of these officials "knew" that concerns about Flynn were a "lie." All it meant is that they were able to see the raw intelligence with a name attached so they could better assess it.

Experts say that there’s a strong argument that the unmasking inquiries were justified.

"Given what we know thus far, I just don’t see how the unmasking requests in this context are anything out of the ordinary," said Stephen Vladeck, a law professor at the University of Texas who specializes in national security law. "It hardly seems unreasonable, given what was in the intelligence reports, that senior government officials would’ve wanted to know the identity of the unnamed U.S. person in order to understand the significance of the intercepts."

Former Obama National Security spokesman Tommy Vietor tweeted, "The people who ‘unmasked’ Flynn are top national security aides. It's literally their job to understand intel to help make informed decisions. If the DNI is suggesting unmasking is wrong, why did the Trump admin unmask identities 17,000 times in 2018?"

The numbers Vietor cites are basically accurate, according to data released annually by the Director of National Intelligence. 

As those reports show, there were 9,217 unmasking requests made of the National Security Agency between September 2015 and August 2016, and 9,529 in calendar year 2017.

The number rose to 16,721 in calendar year 2018 and 10,012 in calendar year 2019.

This data suggests two points. 

First, unmasking is not an unusual practice; on average, more than two dozen requests are made every day somewhere in the government.

Second, the number of unmasking requests actually rose under the Trump administration, substantially over the late-Obama-era baseline in 2018 and more modestly over that baseline in 2019.