The Clamor over the Nunes ‘FISA Abuse’ Memo

There is a great deal of commentary, some of it hysterical, about a short memo authored by Republican staffers on the House Intelligence Committee under the direction of Chairman Devin Nunes (R., Calif.). The memo is said to be about Obama-era abuses of the executive branch’s surveillance authorities under federal law — specifically, the Foreign Intelligence Surveillance Act (FISA). The contents of the memo are not yet known to the public, so the commentary is the familiar game of shaping reaction to it.

The Republican script is that this was “Watergate on steroids.” The Democratic counter is that the memo is a one-sided partisan summary that takes investigative actions out of context in order to make mountains out of molehills. Unless and until we can read the document, we cannot make a judgment about which of these assessments is true, or at least closer to the truth. We can, however, make some observations about the controversy.

The Claim That the Memo Is One-Sided

The most common complaint is that the memo represents the Republican slant on a dispute that should be above politics. (Yeah, yeah, I know . . . but stop snickering.) Now, maybe the memo will read like sheer propaganda, but this seems highly doubtful. There are extremely good reasons for Nunes and his staff to create a summary, and very easy ways for Democrats to remedy anything that is arguably misleading, so the “one-sidedness” objection appears overblown.

First, the main questions that we need answered are:

Were associates of President Trump, members of his campaign, or even Trump himself, subjected to foreign-intelligence surveillance (i.e., do the FISA applications name them as either targets or persons whose communications and activities would likely be monitored)?

Was information from the Steele dossier used in FISA applications?

If Steele-dossier information was so used, was it so central that FISA warrants would not have been granted without it?

If Steele-dossier information was so used, was it corroborated by independent FBI investigation?

If the dossier’s information was so used, was the source accurately conveyed to the court so that credibility and potential bias could be weighed (i.e., was the court told that the information came from an opposition-research project sponsored by the Clinton presidential campaign)?

The FBI has said that significant efforts were made to corroborate Steele’s sensational claims, yet former director James Comey has acknowledged (in June 2017 Senate testimony) that the dossier was “unverified.” If the dossier was used in FISA applications in 2016, has the Justice Department — consistent with its continuing duty of candor in dealings with the tribunal — alerted the court that it did not succeed in verifying Steele’s hearsay reporting based on anonymous sources?

These are not questions that call for nuanced explanation. These things either happened or didn’t. To provide simple answers to these straightforward questions would not be a one-sided partisan exercise, even if the person providing the answers happened to be a partisan.

FISA proceedings are classified, and applications for surveillance warrants from the FISA court typically include information from classified sources — informants who spy at great risk to themselves, intelligence techniques (e.g., covert surveillance), etc. Disclosing such applications and/or the underlying intelligence reporting on which they are based could thus jeopardize lives, national security, and other important American interests.

Thus, the problem: How do we convey important information without imperiling the sources and methods through which it was obtained?

Fortunately, this is far from a unique problem: It comes up all the time in court cases that involve intelligence matters, and Congress has prescribed a process for dealing with it in the Classified Information Procedures Act (CIPA). There are various remedies: Sometimes the classified information can be declassified and disclosed without causing danger; sometimes the classified information can be redacted without either jeopardizing sources or compromising our ability to grasp the significance of what is disclosed. When neither of those solutions is practical, the preferred disclosure method is to prepare a declassified summary that answers the relevant questions without risking exposure of critical intelligence secrets and sources. (See CIPA section 4 — Title 18, U.S. Code, Appendix.)

So, far from being unconventional, the preparation of a summary is a routine and sensible way of handling the complicated tension between the need for information and accountability, on the one hand, and the imperative of protecting intelligence, on the other.

As with any summary, there is always a danger of its being misleading. This, too, is a recurring problem in judicial proceedings, where the need to boil voluminous information down to its essence is obvious. The problem is solved by the so-called rule of completeness: If a party contends that his adversary is taking information out of context or otherwise omitting essential details necessary to an accurate understanding of a document, the party may propose that the necessary context or details be included. An example: Smith tells the police, “I was in the bank but I didn’t rob it.” At the trial, the prosecutor disingenuously suggests to the jury that Smith was implicitly admitting guilt when he told the police “I was in the bank” the day it was robbed. Smith would then be entitled to introduce his complete statement — the “but I didn’t rob it” portion is necessary to the jury’s understanding that, far from implicitly admitting guilt, Smith explicitly denied guilt.

Conforming to House rules, Chairman Nunes has taken pains to make his memo available to all members of Congress before proceeding with the steps necessary to seek its disclosure. Thus, lawmakers have an opportunity to propose the inclusion of details that may be necessary to correct any misimpressions; or Democrats could prepare their own summary in an effort to demonstrate Nunes’s partisan spin. Congressman Nunes is a smart guy, and he clearly knows he will look very foolish if he plays fast and loose with the facts. It is in his interest not to do that, and the careful way he has gone about complying with the rules — rather than leaking classified information, as Trump’s opponents have been wont to do — suggests that his memo will prove to be a fair representation of the underlying information.

On that last point, it would be hard to imagine a more one-sided partisan screed than the Steele dossier. Democrats seem to have had no hesitation about using it as a summary of purported Trump collusion with Russia.

The Failure to Share the Memo with the FBI

The Justice Department and the FBI are reportedly angry that, after they complied with the Intelligence Committee’s demand that they make classified and investigative materials available for inspection, Nunes will not permit the FBI to inspect his memo summarizing that information before moving to disclose it. The irony here is rich.

These executive-branch agencies did not cooperatively comply with congressional investigators; they stonewalled for five months. To this day they are stonewalling: Just this weekend, they belatedly fessed up that the FBI had failed to preserve five months’ worth of text messages — something they had to have known for months. An American who impeded a federal investigation the way federal investigators are impeding congressional investigations would swiftly find himself in legal jeopardy.

Moreover, it is not like the Justice Department and FBI did Nunes a favor and are thus in a position to impose conditions; Congress is entitled to the information it has sought in its oversight capacity. There is no Justice Department or FBI in the Constitution; while these agencies are part of the executive branch, they are creatures of statute. Congress created them, they are dependent on Congress for funding, and Congress has a constitutional obligation to perform oversight to ensure that the mission they are carrying out — with taxpayer support and under statutory restrictions — is being carried out appropriately.

Republicans tend to be favorably disposed toward law enforcement’s preferences. They would surely have preferred to have non-confrontational interactions with vital executive agencies led by Republican appointees of a Republican president. Indeed, most Republicans are puzzled by the lack of cooperation — by the failure of the White House to direct the president’s subordinates to comply with congressional requests for information about potential abuses of power carried out under the prior, Democratic administration.

This is a reciprocal business. If the Justice Department and FBI want accommodations, they have to exhibit cooperation — do the little things, like maybe remember that congressional subpoenas are lawful demands, not suggestions or pleas. On the record thus far, the committee has every reason to believe that submitting the Nunes memo for review by the Justice Department and FBI will result in more delay and foot-dragging. Clearly, there is a strategy to slow-walk compliance in hopes that events — such as, say, a midterm-election victory that returns the House to Democratic control — will abort congressional investigations of the investigators.

Nunes is wise not to play into that strategy. As he knows, if the House ultimately moves to declassify and publicize information, the chamber’s rules require giving the president five days’ notice. (See Congressional Research Service, “The Protection of Classified Information: The Legal Framework” page 3 and note 23.) Thus, the Justice Department and FBI will have an opportunity to both review the memo and try to persuade the president to oppose disclosure. There’s no reason to hold up the works at this point.

The Claim That the Memo Discredits or Distracts from the Mueller Investigation

Finally, committee Democrats and other critics contend that Chairman Nunes is engaged in a stunt designed to discredit Special Counsel Robert Mueller’s investigation, or at least distract attention from its subject matter — Russia’s interference in the 2016 election. These transparently political claims are ill-conceived.

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