As far back as the passage of the Patriot Act after 9/11, civil libertarians worried about the surveillance state, the Panopticon, the erosion of privacy rights and due process in the name of national security.
Paranoid fantasies were floated that President George W. Bush was monitoring the library cards of political dissidents. Civil libertarians hailed NSA contractor Edward Snowden as a hero, or at least accepted him as a necessary evil, for exposing the extent of Internet surveillance under President Barack Obama.
Will civil libertarians now speak up for former National Security Adviser Michael Flynn, whose career has been destroyed with a barrage of leaked wiretaps? Does anyone care if those leaks were accurate or legal?
Over the weekend, a few honest observers of the Flynn imbroglio noted that none of the strategically leaked intercepts of his conversations with Russian Ambassador Sergey Kislyak proved he actually did anything wrong.
The media fielded accusations that Flynn discussed lifting the Obama administration’s sanctions on Russia – a transgression that would have been a serious violation of pre-inauguration protocol at best, and a prosecutable offense at worst. Flynn ostensibly sealed his fate by falsely assuring Vice President Mike Pence he had no such discussions with Kislyak, prompting Pence to issue a robust defense of Flynn that severely embarrassed Pence in retrospect.
On Tuesday, Eli Lake of Bloomberg News joined the chorus of skeptics who said the hive of anonymous leakers infesting the Trump administration never leaked anything that proved Flynn lied to Pence:
He says in his resignation letter that he did not deliberately leave out elements of his conversations with Ambassador Sergey Kislyak when he recounted them to Vice President Mike Pence. The New York Times and Washington Post reported that the transcript of the phone call reviewed over the weekend by the White House could be read different ways. One White House official with knowledge of the conversations told me that the Russian ambassador raised the sanctions to Flynn and that Flynn responded that the Trump team would be taking office in a few weeks and would review Russia policy and sanctions. That’s neither illegal nor improper.
Lake also noted that leaks of sensitive national security information, such as the transcripts of Flynn’s phone calls to Kislyak, are extremely rare. In their rush to collect a scalp from the Trump administration, the media forgot to tell its readers how unusual and alarming the Flynn-quisition was:
It’s very rare that reporters are ever told about government-monitored communications of U.S. citizens, let alone senior U.S. officials. The last story like this to hit Washington was in 2009 when Jeff Stein, then of CQ, reported on intercepted phone calls between a senior Aipac lobbyist and Jane Harman, who at the time was a Democratic member of Congress.
Normally intercepts of U.S. officials and citizens are some of the most tightly held government secrets. This is for good reason. Selectively disclosing details of private conversations monitored by the FBI or NSA gives the permanent state the power to destroy reputations from the cloak of anonymity. This is what police states do.
In the past it was considered scandalous for senior U.S. officials to even request the identities of U.S. officials incidentally monitored by the government (normally they are redacted from intelligence reports). John Bolton’s nomination to be U.S. ambassador to the United Nations was derailed in 2006 after the NSA confirmed he had made 10 such requests when he was Undersecretary of State for Arms Control in George W. Bush’s first term. The fact that the intercepts of Flynn’s conversations with Kislyak appear to have been widely distributed inside the government is a red flag.
While President Trump contemplated Flynn’s fate on Monday evening, the Wall Street Journal suggested: “How about asking if the spooks listening to Mr. Flynn obeyed the law?” Among the questions the WSJ posed was whether intelligence agents secured proper FISA court orders for the surveillance of Flynn.
That s the sort of question that convulsed the entire political spectrum, from liberals to libertarians, after the Snowden revelations. Not long ago, both Democrats and Republicans were deeply concerned about accountability and procedural integrity for the sprawling surveillance apparatus developed by our law enforcement and intelligence agencies. Those are among the most serious concerns of the Information Age, and they should not be cast aside in a mad dash to draw some partisan blood.
There are several theories as to exactly who brought Flynn down and why. Was it an internal White House power struggle, the work of Obama administration holdovers, or the alligators of the “Deep State” lunging to take a bite from the president who promised to “drain the swamp?”
The Washington Free Beacon has sources who say Flynn’s resignation is “the culmination of a secret, months-long campaign by former Obama administration confidantes to handicap President Donald Trump’s national security apparatus and preserve the nuclear deal with Iran.”
Flynn has prominently opposed that deal. According to the Free Beacon, this “small task force of Obama loyalists” are ready to waylay anyone in the Trump administration who threatens the Iran deal, their efforts coordinated by the sleazy Obama adviser who boasted of his ability to manipulate the press by feeding them lies, Ben Rhodes.
Some observers are chucking at the folly of Michael Flynn daring to take on the intelligence community, and paying the price for his reckless impudence. That is not funny – it is terrifying. In fact, it is the nightmare of the rogue NSA come to life, the horror story that kept privacy advocates tossing in their sheets for years.
Michael Flynn was appointed by the duly elected President of the United States. He certainly should not have been insulated from criticism, but if he was brought down by entrenched, unelected agency officials, it is nearly a coup – especially if, as Eli Lake worried on Twitter, Flynn’s resignation inspires further attacks with even higher-ranking targets:
— Eli Lake (@EliLake) February 14, 2017
Lake’s article caught the eye of President Trump, who endorsed his point that intelligence and law enforcement agencies should not interfere in U.S. politics:
Thank you to Eli Lake of The Bloomberg View – "The NSA & FBI…should not interfere in our politics…and is" Very serious situation for USA
— Donald J. Trump (@realDonaldTrump) February 15, 2017
On the other hand, Bill Kristol of the Weekly Standard openly endorsed the Deep State overthrowing the American electorate and overturning the results of the 2016 election:
Obviously strongly prefer normal democratic and constitutional politics. But if it comes to it, prefer the deep state to the Trump state.
— Bill Kristol (@BillKristol) February 14, 2017
Among the many things hideously wrong with this sentiment is that the American people know absolutely nothing about the leakers who brought Flynn down, and might be lining up their next White House targets at this very moment. We have no way to evaluate their motives or credibility. We didn’t vote for them, and we will have no opportunity to vote them out of office if we dissent from their agenda. As mentioned above, we do not know if the material they are leaking is accurate.
Byron York of the Washington Examiner addressed the latter point by calling for full disclosure:
Important that entire transcript of Flynn-Kislyak conversation be released. Leakers have already cherrypicked. Public needs to see it all.
— Byron York (@ByronYork) February 14, 2017
That is no less important with Flynn’s resignation in hand. We still need to know the full story of his downfall. The American people deserve to know who is assaulting the government they voted for in 2016. They deserve protection from the next attempt to manipulate our government with cherry picked leaks.
They also deserve some intellectual consistency from those who have long and loudly worried about the emergence of a surveillance state, and from conservatives who claim to value the rule of law. Unknown persons with a mysterious agenda just made strategic use of partial information from a surveillance program of uncertain legality to take out a presidential adviser.
Whether it’s an Obama shadow government staging a Beltway insurrection, or Deep State officials protecting their turf, this is the nightmare scenario of the post-Snowden era… or are we not having that nightmare anymore, if we take partisan pleasure in the outcome?