Why Was the FBI Investigating General Flynn?

Andrew C. McCarthy:

National Security Adviser Michael Flynn was dismissed amid a torrent of mainstream-media reporting and disgraceful government leaks (but I repeat myself). Among the most intriguing was a New York Times report the morning after Flynn’s resignation, explaining that the former three-star Army general and head of the Defense Intelligence Agency was “grilled” by FBI agents “about a phone call he had had with Russia’s ambassador.”

No fewer than seven veteran Times reporters contributed to the story, the Gray Lady having dedicated more resources to undermining the Trump administration than the Republican Congress has to advancing Trump’s agenda. Remarkably, none of the able journalists appears to have asked a screamingly obvious question — a question that would have been driving press coverage had an Obama administration operative been in the Bureau’s hot seat.
On what basis was the FBI investigating General Flynn?
To predicate an investigation under FBI guidelines, there must be good-faith suspicion that (a) a federal crime has been or is being committed, (b) there is a threat to American national security, or (c) there is an opportunity to collect foreign intelligence relevant to a priority established by the executive branch. These categories frequently overlap — e.g., a terrorist will typically commit several crimes in a plot that threatens national security, and when captured he will be a source of foreign intelligence.

Categories (a) and (b) are self-explanatory. It is category (c), intelligence collection, that is most pertinent to our consideration of Flynn.

At first blush, this category seems limitless: unmooring government investigators from the constraints that normally confine their intrusions on our liberty (e.g., snooping, search warrants, interrogations) to situations in which there is real reason to suspect unlawful or dangerous activity. Intelligence collection, after all, is just the gathering of information that can be refined into a reliable basis for decisions by policymakers.

As we shall see, it is not limitless. But we should understand why it needs to be broad.

Most people think of the FBI as a federal police department that does gumshoe detective work, albeit at a high level and with peerless forensic capabilities. That, indeed, is how I thought of the FBI for my first eight years as a federal prosecutor, before I began investigating terrorism cases and became acquainted with the FBI’s night job. Turns out the FBI’s house has a whole other wing, separate and apart from its criminal-investigation division. Back in pre-9/11 days, this side of the house was called the foreign counter-intelligence division. Now, it is the national-security branch. Whatever the name, it is our domestic security service, protecting the nation against hostile foreign activity — espionage, other hostile intelligence ops, terrorism, acquisition of technology and components of weapons of mass destruction, and so on.

Most of the national-security branch’s work is done in secret, never intended to see the light of day in courtroom prosecutions. In some countries, including Britain, domestic security is handled by an agency (MI5) independent of domestic law enforcement (MI6). In our country, it is handled by a single agency, the FBI, based on the assumption (a sound one in my opinion) that the two missions are interrelated and that one can leverage the other more easily under one roof.

The FBI also has the foreign-intelligence gig because the Bureau is fully constrained by the Constitution and other federal law. Our other intelligence agencies — the best example is the CIA — are prohibited from “spying” inside the United States, largely because their foreign operations are outside the jurisdiction and fetters of American law. We understand that our security requires that our domestic security service have wide intelligence-gathering latitude; but we do not permit it to be limitless — it must respect our constitutional rights.

So how do we make sure the FBI does that if we’re giving it license to investigate people even when it does not suspect a crime or a threat? We do it by dividing the subjects of its intelligence investigations into three classifications and giving the FBI commonsense authority to deal with each.
1. Aliens acting as overt foreign agents
The first classification, and the easiest to grasp, consists of aliens who overtly work as foreign agents. Such a person — for example, Sergey Kislyak, the Russian ambassador with whom General Flynn communicated — is a non-American (i.e., one who does not have the full-blown constitutional rights of an American citizen) and is openly acting on behalf of a foreign regime — in the case of Russia, a regime notoriously hostile to U.S. interests. Clearly, there is no problem with his being targeted by the FBI for intelligence-gathering purposes.

Note that, because the FBI is constrained by federal law, even overt foreign operatives have significant protections. It is still necessary, for example, for the FBI to get a judicial warrant to search a foreign agent’s home or intercept his phone and e-mail communications — and more on those warrants momentarily. Within the wide parameters of federal law, though, the FBI is free to monitor an overt foreign operative’s activities very aggressively, even when there is no suspicion of criminal wrongdoing or national-security threats. The presumption that our government is entitled to observe what foreign governments are up to on our soil is sufficient — and, of course, American officials operating overseas are routinely monitored by host governments (most of which are not so fastidious about civil liberties).
2. Americans acting as foreign agents — overt and covert
The second classification is more complicated: American citizens who act as agents of foreign powers. Contrary to the legal illiteracy dismayingly peddled by Fox News from time to time, one can be an American citizen and nonetheless be an agent of a foreign power, and therefore subject to investigation under the FBI’s foreign-intelligence-gathering authority, even if there is no suspicion of criminal wrongdoing.

The easy example in this second classification is an American who openly and formally declares himself to be a foreign agent. Many Americans do work for and advocate on behalf of foreign regimes. Our law mandates that they register with the Justice Department. They must make periodic disclosures detailing their relationship with the relevant foreign country, their activities on its behalf, the financial arrangements, and so on. The FBI is free to investigate such American foreign agents just as it investigates alien foreign agents; in fact, the point of the disclosure requirements is to make the foreign-intelligence something our government can passively collect rather than expend investigative resources to gather.

The more complex example is Americans who act as covert foreign agents. The detection of these Americans is obviously tougher but of greater urgency. After all, if their activities on behalf of foreign powers were benign, they would not be acting covertly — and here it is worth pointing out that, under federal law, “foreign powers” are not just other countries; they include international terrorist organizations. Some of the terrorists I prosecuted in the 1990s, for example, were American citizens (some born as such, some naturalized) who were operatives of foreign jihadist cells.

Whether they are Americans or aliens, covert foreign agents merit heightened scrutiny, such as eavesdropping on phone calls and e-mails, or “sneak and peek” searches (when agents covertly look around a home or office, maybe take pictures and plant bugs, but don’t leave evidence that they’ve been there). To get that kind of authority, as presaged above, the FBI and Justice Department must seek warrants from the secret court established by the Foreign Intelligence Surveillance Act of 1978 (the FISA Court).

This requires a showing of probable cause. Significantly, this does not mean probable cause that a crime has been or is being committed — the traditional law-enforcement standard. Under FISA, the government must show probable cause that the target of its surveillance is acting as an agent of a foreign power. Libertarians complain that this is a lower standard, a sinister pretext to make it easier to hassle Americans in the absence of evidence that they’ve broken the law. But it is not a lower standard; it is the same standard (probable cause) for making a different showing (that one is a foreign agent). If you are a covert foreign agent, it should be easier for the FBI to investigate you, especially when it is doing so under judicial oversight.
3. Americans who are not foreign agents but may possess foreign intelligence
Covering overt and covert foreign agents does not complete the FBI’s intelligence mosaic. There are many Americans who do not act on behalf of foreign regimes but who are possessed of information that would be of great value to the FBI in understanding what foreign powers are up to — owing, for example, to their travels, business dealings, or academic concentrations. Plainly, we want to FBI to be able to seek this information. Yet we don’t want these Americans to be investigated — they should be thanked, not hassled. So how should our fellow citizens in this wholly innocent classification be handled? The FBI’s guidelines for domestic operations strike the right balance: “The FBI should . . . operate openly and consensually with U.S. persons to the extent practicable when collecting foreign intelligence that does not concern criminal activities or threats to the national security.”

Openly and consensually. That means FBI agents should tell Americans in this “non-foreign agent” classification that they are not under investigation or suspicion, and that their voluntary cooperation is requested to help the FBI protect the country against potentially harmful foreign activities. They should not be “grilled” as if they were suspects.

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