General Flynn and Colonel Mustard: Let's Piece Together Clues About the Leak

The most recent big scandal is LTG Michael Flynn’s resignation from the position of national security advisor — and just as an aside, I’ve heard at least three media people claim he’d resigned as director of the NSA, and no, being NSA isn’t the same as being DIRNSA. The Trump administration promptly complained about the leaks, to the mass amusement of the usual suspects.

But — is that amusement justified? Or is this more interesting than the usual suspects believe? Let’s give it a look.

There’s a phrase that comes up over and over when talking about classification of intelligence information: “sources and methods.” In fact, it comes up so often that it’s become one of those buzzword cliches that runs past — sourzeznmethdz — without people really hearing or thinking about it. So, just for once, let’s think about it.

Obviously, it breaks down into sources and methods: sources are where the information comes from, and methods are how we illicitly obtained the information. (Strictly it isn’t always illicit, since we derive useful intelligence from newspapers, but it’s also not interesting to know the CIA reads Russian newspapers.)

Now, we have a big scandal that is based on leaked reports of phone calls between LTG Flynn and the Russian ambassador, which apparently came from intercepts of the phone calls. But let’s look at this through the “sources and methods” lens for a minute: we have an overt leak that our intelligence services have intercepted communications of the Russian ambassador (a source) by “wire tapping” or something similar their phone calls (a method). What’s more, the other party to the call was LTG Michael Flynn. Technically, Flynn in this case is a United States Person (“U.S. Person”) under 50 USC 1801. Here’s the definition:

(i)“United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101(a)(20) of title 8), … .

Here’s a link to all of 50 US Code Subchapter I, which contains the whole section on FISA courts. I won’t go through the whole thing, but the gist is that there must be a FISA Court order to allow an intercept of a U.S. Person’s communications; if a U.S. Person’s communications are intercepted by accident, by law the U.S. Person’s communications must be “minimized” in such a way that information identifying the U.S. Person isn’t stored or disseminated except under some special conditions.

It looks like that rule was, shall we say, applied less than diligently here with these leaks.

But let’s go back to “sources and methods” — what we have here is “communications intelligence,” COMINT. This isn’t super sensitive — as a friend pointed out, it’s not like it’s a big secret the U.S. is listening to the Russians — but it still meets the qualifications to be something like CONFIDENTIAL and special compartmented intelligence: CONFIDENTIAL//SI. (You can read more details, if you’re interested, in my pieces on Hillary’s Air Gap Problem, on how It’s Not Classified because It’s Marked; It’s Marked because It’s Classified, and on L’Affaire Snowden and Computer Security.)

But the point for now is simply that this stuff must be classified at least CONFIDENTIAL//SI, which puts it under the Espionage Act; revealing it without authorization is a violation of 18 USC 793 (and some other sections. Again, the link is to the containing chapter). This is the same chapter that would have been used to indict Hillary Clinton if she hadn’t had friends in high places.

Finally, let’s ask the question that should be on every critical thinker’s mind at all times: Cui bono? Who benefits? Add to that: who could have been involved?

Probably not the Trump people (plus they wouldn’t have known to have access to it). Not the Russians. Decisions involving this kind of material are made in the executive branch (CIA, FBI, NSA are all in the executive branch). What’s more, very few people are going to have need to know on this stuff, even if it’s only CONFIDENTIAL: we don’t want to let the Russians know exactly what conversations we’ve actually intercepted.

The final piece of the puzzle here is that we know these calls were intercepted before the inauguration. Which means they were authorized during the Obama administration.

So now, like Colonel Mustard with a lead pipe in the library, pieces have come together: this has to have been authorized under the Obama administration, by someone pretty high up (or else they wouldn’t have access to the compartmented information), and leaked by someone pretty high up, also, almost certainly, either a civil service permanent employee held over from the Obama administration or a political appointee very high in the intelligence community. One who was pretty confident they also have friends in high places.

Why? It seems it must have been to make trouble for the incoming Trump administration.

This is going to get a lot more interesting.