WASHINGTON (Reuters) – Former U.S. intelligence officials questioned the Justice Department’s naming of a prosecutor to probe the “unmasking” of names in spy-agency eavesdropping reports by Obama administration officials, saying such requests had not previously been treated as criminal matters.
Attorney General William Barr this week assigned a U.S. attorney in Texas, John Bash, to look into unmasking requests that revealed intercepted conversations between Michael Flynn, a former adviser to Republican President Donald Trump, and Russia’s ambassador had been detailed in National Security Agency reports.
Flynn pleaded guilty to lying to the FBI about those conversations, though the Justice Department this month moved to drop the charge against him, in what critics call a pattern of providing special treatment to Trump allies.
Key Trump supporters in the Senate, including Lindsey Graham, have seized on unmasking disclosures to demand investigations into requests by aides to former President Barack Obama, months before Trump is expected to face Obama’s vice president, Joe Biden, the presumptive Democratic nominee, in the November election.
“No one has ever been criminally prosecuted for unmasking. That would be tantamount to pursuing criminal charges against an intelligence analyst for merely doing his job,” said Ned Price, a former CIA analyst who worked for Obama’s National Security Council. “It’s clearly an attempt to cast a patina of criminality around a routine practice,” said Price, who is now a fellow at the New America Foundation and a lecturer at George Washington University.
Unmasking refers to the naming of a U.S. citizen whose identify was blacked out in an NSA report that captured their communications with a foreign national.
The Trump administration has requested far more unmaskings than Obama’s did, according to statistics released last month by the Office of the Director of National Intelligence. Between September 2015 and August 2016, the figures show 9,217 total requested unmaskings by Obama administration members, compared with 16,721 in calendar year 2018 and 10,012 last year.
The report did not show how many unmaskings were requested in 2017, Trump’s first year in office.
Recently declassified records made available to senators showed that Biden, former Director of National Intelligence James Clapper and former CIA Director John Brennan, among others, requested limited unmaskings of reports that turned out to mention Flynn, who advised Trump’s campaign and later served briefly as his national security adviser. The substance of such messages was not made public.
Justice Department spokeswoman Kerri Kupec said in an email that Bash had been tapped to conduct “a thorough review that takes into account any relevant context” surrounding the unmasking requests.
Senator Mark Warner, the Democratic vice chair of the intelligence committee, said the probe showed the DOJ was “wielding the power to criminally investigate political enemies of the president in a way that is exceedingly dangerous.”
Stewart Baker, a former NSA general counsel who also served in Republican President George W. Bush’s administration, said unmasking requests could be illegal if they had a clear political motivation.
“If the intelligence was properly gathered but read by someone with two motives, one legit and one not, I don’t expect a prosecution,” said Baker, who is currently of counsel to law firm Steptoe. “But I am not prepared to say that the DOJ inquiry is presumptively improper.”
However, Robert Litt, who served in the Obama administration as chief lawyer to the director of National Intelligence and is now of counsel to Morrison Foerster, said: “I can’t think of what the possible criminal violation might be, unless they are going to gin up some sort of conspiracy to defraud the United States.”
Reporting by Mark Hosenball; additional reporting by Sarah N. Lynch; editing by Scott Malone and Leslie Adler