Exploiting a loophole within Executive Order 12333 and the CIA guidance derived from it, the Central Intelligence Agency (CIA) could have conducted physical surveillance (to include concealed monitoring such as a covert listening bug) against the National Security Advisor Mike Flynn or with anyone else associated with President Donald J. Trump who had ever worked for or contracted with (or have worked for a contracting company associated with) the CIA. This is because the broad definition of a CIA employee within the guidance derived from Executive Order 12333 could extend to anyone who was procured a clearance through the CIA’s Office of Security.
Although it does not appear Mike Flynn worked explicitly for the CIA, in 2011, he worked for the Office of Director of National Intelligence (ODNI). Security clearances for ODNI are procured through the CIA’s Office of Security.
The same loophole in EO 12333 guidance that may have been used against General Flynn to circumvent FISA requirements may also have been exploited against anyone else who holds a CIA clearance, to include members of Congress who were granted security clearances by CIA or ODNI such as Congressman Dennis Kucinich, who have proof they were wiretapped while in congressional offices.
This loophole, which is detailed in full below, may also have been used against Trump transition staff, such as General Flynn or presidential advisor Jared Kushner, after they were read in to top secret access programs and granted security clearances through ODNI/CIA.
The CIA could also have acquired electronic surveillance on any of these subjects (which the CIA is normally explicitly disallowed from collecting within the United States), provided that the information came from a “foreign government’s files”. Nowhere in the CIA’s new EO 12333 guidance is the term “files” defined, and so “audio files” could be a proper interpretation of the language used.
The amended CIA guidance on EO 12333, which allows these loopholes, was signed by CIA Director John Brennan and Attorney General Loretta Lynch on January 17th, just 3 days before President Donald J. Trump took office. It was previously held as a classified document (according to this source), until it was approved for release (although heavily redacted) in April 29, 2015 (according to this source). An extremely important line exists within the released document prior to its amendment by John Brennan and Loretta Lynch:
This loophole allows the CIA to collect on or perform surveillance on any person holding or having held a CIA or ODNI security clearance. This surveillance does not require a high-ranking CIA official or anyone with a mission specifically targeted on the collection effort to approve it.
Another important loophole within Executive Order 12333 existing from 1981 until today (and also echoed within the CIA guidelines) is the line:
[The guidance on Collection Procedures] shall not authorize:
(c) The physical surveillance of a United States person in the United States by elements of the Intelligence Community other than the FBI, except for … present or former employees, present or former intelligence element contractors or their present or former employees, or applicants for any such employment or contracting.
Under a strict interpretation of this reading, the CIA reserves the right to perform surveillance of anyone, present or former who is an employee of someone formerly working on behalf of the CIA. That’s right, once you have your clearance held by the CIA, EO 12333 states that any employees you have are subject to physical surveillance by nature of your previous relationship with the Agency.
As an example, after leaving the NSA, I became a contractor at ODNI where the CIA held my clearance. Because of the unconstitutional EO 12333 loophole, my current employees at PLEENQ LLC, a tech start-up, who have no connection to the intelligence community, can be lawfully physically surveilled by the CIA, or by proxy, the FBI with no direct evidence or warrants normally required to do so.
It’s clear that this loophole violates more than one constitutional principle.
The ambiguities allowing this loophole can be fixed by either President Trump amending Executive Order 12333 or by the CIA to changing its January 2017 guidance to:
- Remove any ambiguities of the following terms within the CIA guidance:
- Remove the ambiguity of Section 4.4.1’s mention of “other than in the circumstances below” with regard to special collection techniques, which doesn’t explicitly state what the exceptions are.
- Ensure that the approving authority of any collection on U.S. persons is conducting the collection within their lane of responsibility.
- Create a monthly/quarterly/yearly report explicitly stating all collections on U.S. persons that have been allowed by the guidance, direct the report to the Inspector General (IG), and penalize any employee collecting on U.S. persons not listed within the report in accordance with Executive Order 12333.
- Make the report subject to congressional intelligence oversight.
- Explicitly disallow “present or former intelligence element contractors or their present or former employees” from applying to those who have no connection to the intelligence community.
On January 10th and January 17th of 2017, just days before President Donald J. Trump took office, CIA Director John Brennan and Attorney General Loretta Lynch signed and implemented an amended guidance on Intelligence Activities Procedures for the CIA (as Executive Order 12333 stipulates must be created for each intelligence agency). This guidance is a set of rules and procedures with regards to collection activities, and especially related to the collecting on “United States Persons” (U.S. persons). For almost all instances of lawful collection on U.S. persons, there must either be consent by the person or a FISA warrant justifying collection on them. Within the guidance, though, there exists an important exception:
The CIA may request that the FBI conduct physical surveillance of a U.S. person in the United States … The CIA may directly engage in physical surveillance of a U.S. person within the United States only if the U.S. person is a present or former employee, a present or former contractor of the CIA, a present or former employee of a CIA contractor, or an applicant for any such employment or contracting.
General Mike Flynn
On November 18, 2016, General Mike Flynn was chosen as the National Security Advisor by President Donald J. Trump. Soon thereafter, multiple news agencies began issuing reports on surveillance conducted on Mike Flynn, in most cases citing anonymous sources. On February 13th, The Washington Post claimed that Acting Attorney General Sally Yates initially brought Mike Flynn’s conversation with the Russian Ambassador to the ear of the White House.
Reports also surfaced that the conversation between Mike Flynn and Russian Ambassador Sergey Kislyak ostensibly occurred while Flynn was making outreach calls from the White House Transition Team’s Trump Tower headquarters.
Irrespective of any anonymous reporting, we know that the following events occurred which led to Mike Flynn’s abrupt departure:
1. Mike Flynn had a phone call with Russian Ambassador Sergey Kislyak (acknowledged as being legally within the purview of his duties as an incoming National Security Advisor).
2. Mike Flynn was not fully honest or upfront with Vice President Mike Pence regarding the contents of this phone call.
3. The Vice President went on national news and relayed incorrect information regarding Mike Flynn’s phone call, according to the conversation he had had with Mike Flynn.
4. Mike Flynn was removed from the position of National Security Advisor.
According to The New York Times on February 9, federal officials read the transcript of Mike Flynn’s phone call. A week later, The New York Times based an entire article around a much more ominous claim — that the FBI was, in fact, conducting an investigation that led them to listen to the recording of Mike Flynn with the Russian ambassador and grill Flynn on its existence.
From the NY Times article:
Just days into his new position as President Trump’s national security adviser, Mike T. Flynn found himself in a meeting that any White House official would dread. Face to face with F.B.I. agents, he was grilled about a phone call he had had with Russia’s ambassador.
What exactly Mr. Flynn said has not been disclosed, but current and former government officials said on Tuesday that investigators had come away believing that he was not entirely forthcoming. Soon after, the acting attorney general decided to notify the White House, setting in motion a chain of events that cost Mr. Flynn his job and thrust Mr. Trump’s fledgling administration into a fresh crisis.
Mike Flynn fully fits Executive Order 12333’s definition of a U.S. person, and in accordance with that, there are only 4 possibilities:
1. The collection on Mike Flynn was done illegally.
2. The collection on Mike Flynn was done in accordance with an FBI investigation and an approved warrant for wiretapping.
3. The collection on Mike Flynn was done with an approved FISA warrant.
4. The collection on Mike Flynn was done legally, but without requiring a FISA warrant by designating Mike Flynn as a former agency employee.
How Collection on Mike Flynn May Have Been Performed Legally Without FBI or FISA
Mike Flynn was never directly employed within the CIA. He was, however promoted to Lieutenant General and assigned to the Office of the Director of National Intelligence (ODNI) in September 2011 prior to becoming the head of the Defense Intelligence Agency. Before being tapped to spearhead the DIA, General Flynn’s security clearance was transferred to the ODNI, and thereby, to the CIA’s Security Office. A full explanation of this process can be found on the official ODNI website:
As an intelligence official with a clearance held by the CIA, Flynn can legally be considered a former employee of the CIA, as described in detail in the definitions section of this article below. This would allow any form of standard collection, also defined below, to be conducted on him.
Per CIA guidance, standard collection entails:
A CIA employee may use standard collection techniques to conduct communications security investigations, physical security investigations, or personnel security investigations without approvals under these Procedures, except that the use of concealed monitoring techniques require General Counsel concurrence. Internal CIA regulations may require additional approvals.
In all other cases, use of standard collection techniques direct at a U.S. person shall be approved by:
(a) A Chief of station, Chief of Installation, or Chief of Base
(b) The Deputy Director of the CIA for Operations (DDO), the Associated Deputy Director of CIA for Operations (ADDO) the Chief or Deputy Chiefs of Operations in a CIA Mission Center, or a first, second, or third in command of a DO Division or DO center
(c) Supervisory personnel who are designated by these officials
An approving official must document that use of standard collection techniques directed at a U.S. person complies with the requirements of this section.
As you can see, there is no mention that the approving official must have purview in regard to the related standard collection request (that the collection on that person must fall within “their lane”), meaning any one of the (very large) list of people above could approve the use of standard collection on a U.S. person.
Concealed monitoring (such as an electronic bug) could even be conducted on the subject as long as the General Counsel of the CIA approves of it. In theory, this loophole could allow a Chief of Station in Afghanistan to approve of the collection of a U.S. person within the United States without a FISA warrant, provided that the subject in question was a former or current employee of the CIA or somehow associated with the CIA.
According to the Congressional Research Office, security clearances are not mandated for the president, vice president, members of Congress, Supreme Court justices, or other constitutional officers. However, they would have to be issued clearances to be read into special access programs, as House Permanent Select Committee on Intelligence (HPSCI) and Senate Select Committee on Intelligence (SSCI) often are.
Similarly, congressional staffers and members of the incoming administration would have to fill out SF-86 questionnaires and have top secret clearances processed and procured by the ODNI/CIA.
Members of the Presidential administration who have had their clearances processed by the CIA qualify as “an applicant for any such employment” under subsection 188.8.131.52 of the CIA guidance.
CIA guidance states that electronic surveillance (such as directly recording the phone conversation of Mike Flynn and Russian Ambassador Kislyak) is explicitly disallowed if conducted within the United States.
The CIA can, however, request that the FBI or another federal agency conduct electronic surveillance.
While this mostly rules out the possibility of electronic surveillance on Mike Flynn, there is a major exception that would allow this. Under section 4.3.1 subsection (b), standard collection can involve “inquiries of intelligence or security services of foreign governments for information that exists in their files”. The term “Files” is never defined within the guidance, so a logical interpretation could be computer files, or more specifically: audio files. So if a foreign government recorded Mike Flynn’s conversation, the CIA could request that information, and be provided that while avoiding being determined as “special collection” (which electronic surveillance falls under).
One of the reasons given for the collection on Mike Flynn existing was that Russian Ambassador Kislyak was being legally “wiretapped”, and that Mike Flynn’s presence on the collection was incidental. Since Mike Flynn is a US person, and regardless of the rightful collection on the side of Ambassador Kislyak, that collected information should not have been retained once it had been evaluated that a US person was being collected on. The only thing that would have allowed this collection to continue (and be retained) is either:
1. An FBI warrant approved by the Department of Justice
2. A FISA warrant
3. A designation of Mike Flynn as being a prior “employee” of an intelligence agency, such as the CIA
According the CIA’s own guidance, if Mike Flynn was designated a current or prior “employee”, then they could have obtained the wiretapped information without a FISA warrant by:
1. Requesting that the FBI conduct electronic surveillance on Mike Flynn
2. Receiving “files” (audio files) from a foreign government conducting electronic surveillance on either Mike Flynn or Ambassador Kislyak
3. Placing a covert surveillance mechanism (such as a bug) where either Mike Flynn was making the phone call or where Ambassador Kislyak was making the phone call
Surveillance on Mike Flynn and any other administration subjects most likely began after President Donald J. Trump was elected on November 8th, 2016, as that is when the bulk of intelligence leaks about Mike Flynn cite as a timeframe. During this timeframe, as ODNI/CIA would have been the agency to process any incoming administration clearances, and under these guidelines, would then have the legal ability to conduct standard collection on such persons. If collection occurred before November 8th, it was likely conducted against any individual who had a clearance processed by the CIA (such as Mike Flynn), and therefore bypassed any FISA requirement.
About the Author
Justin Mealey was a former Arabic linguist, intelligence analyst, and mission manager at the National Security Agency (NSA) and tech analyst contractor at ODNI. Justin is the CEO of PLEENQ.
Employee (of the CIA): As explicitly defined in section 12.10 of the CIA guidance:
For purposes of these Procedures, employee means a person employed by or acting on behalf of the CIA, including any contractors or assets.
It is also implicitly expanded in definition in section 2.3 subsection (e) by defining what the CIA may lawfully collect, retain, and disseminate on US persons as:
…information concerning present or former employees, present or former intelligence element contractors or their present or former employees, or applicants for any such employment or contracting.
This is derived from Executive Order 12333 Section 2.4 subsection (c)(1) stating:
Physical surveillance of present or former employees, present or former intelligence element contractors or their present or former employees, or applicants for any such employment or contracting
Executive order 12333: Signed by Ronald Reagan in 1981 establishes the guidelines for collection within U.S. intelligence agencies, and their responsibilities to minimize collections on United States persons.
Standard Collection: From section 4.3.1 on page 15 of the CIA guidance:
Any information collection technique directed at a U.S. person that is not basic collection or a special collection technique under these Procedures shall be considered a standard collection technique. Standard collection techniques primarily include methods used to collect information from the existing records or knowledge of third parties (such as human sources, other federal agencies, or foreign governments).
Examples of Standard collection techniques include, but are not limited to:
(a) Examining federal, state, local, and tribal records
(b) Inquiries of intelligence or security services of foreign governments for information that exists in their files
(c) Inquiries of assets or other individuals with whom CIA has a relationship for information they posses, or tasking those individuals to collect the information sought via standard collection techniques
(d) Requesting intelligence or security services of the U.S. or foreign governments to use their assets to collect the information sought via standard collection techniques
(e) Interviewing individuals who posses the information sought or who may be in a position to supply the information sought
(f) Examining records to verify education, employment, residence, credit, financial reputation, or other information in a manner consistent with applicable federal law
(g) Physical surveillance, including via concealed monitoring with the limitations delineated in Subsection 4.3.2
United States Persons: Within Executive Order 12333, the definition of United States persons is set forth as:
• United States citizen
• An alien known by the intelligence agency concerned to be a permanent resident alien (LPR or Legal Permanent Resident)
• An unincorporated association substantially composed of United States citizens or permanent resident aliens
• A corporation incorporated in the United States, except for a corporation directed and controlled by a foreign government or governments