After weeks of back-and-forth on Capitol Hill, and over the protests of the Justice Department and FBI, the White House is now poised to “release the memo” – a controversial document crafted by the Republican House Intelligence Committee chairman Devin Nunes and purported to reveal abuses by top law enforcement officials as they sought clearance to spy on a former Trump campaign adviser.
Beyond the choreographed chaos, though, lies a more historically remarkable development. By making public the controversial memo, Republicans will position themselves in open opposition to a law enforcement establishment and intelligence community they have for so long held up, in many cases, as beyond reproach.
The new pose is both jarring and, in legislative terms, incongruous. As recently as last week, Republicans and Democrats in the House and Senate voted to reauthorize a controversial expansion of a law – the Foreign Intelligence Surveillance Act – they’re now effectively tearing down.
The nut of the accusation, as cobbled together by Nunes, is this:
1) The FBI and DOJ misled a Foreign Intelligence Surveillance Court when obtaining a warrant to wiretap Carter Page, the former Trump associate, ostensibly as part of the Russia investigation.
2) Republicans contend that those officials acted in bad faith as part of a plot to see Hillary Clinton elected, which explains their presentation of disputed details outlined in a now famous dossier compiled by former British spy Christopher Steele.
3) Because the work that yielded the dossier was funded – indirectly and in part – by Democrats, the FBI and DOJ were doing the party’s bidding and, in so doing, taking part in a sprawling conspiracy to derail Trump’s presidential bid.
4) It also alleges, according to a New York Times report, that Deputy Attorney General Rod Rosenstein approved an extension to Page’s surveillance early last year.
And that’s about where it wraps. The blame, at least as far as the GOP talking points in the memo go, ends with the conspirators. But if their allegations are judged true and considered in good faith, the integrity of the underlying FISA law would also be thrown into doubt.
If you’re still confused, chin up, that’s part of the allure here for some Republicans who seem bent on using the memo as a way to delegitimize the special counsel investigation into Russian election meddling. The foggier the narrative, the more difficult it is to discern fact from fiction and solid evidence from hearsay. In the meantime, though, let’s just consider the very last part – FISA.
The law is complicated but, for our purposes here, has two relevant parts. The first dates back to 1978, when the process that allowed the FBI and DOJ to pursue a warrant to spy on Page was initially put into place. It came about as part of a broad post-Watergate era effort to check the powers of domestic intelligence agencies. By presenting a FISA court with probable cause that Page was acting as an agent of a foreign power, investigators were – as they typically are – secretly granted legal permission to monitor his communications.
Now, let’s consider a newer, controversial part of the law, called Section 702, which allows for warrantless surveillance of non-US persons outside the country. It was added in 2008, about three years after The New York Times revealed that the George W. Bush administration had “secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without … court-approved warrants.”
In a dramatic coincidence, it was former FBI Director James Comey who, during his time as deputy attorney general in 2004, faced down Bush White House officials in a hospital room as they attempted to convince the bedridden Attorney General John Ashcroft to reauthorize a program his own DOJ had deemed unlawful. (Who did Comey, according to his 2007 testimony, notify as he headed toward the confrontation? None other than the FBI director at the time, Robert Mueller.)
President Barack Obama signed off on an extension of the program in 2012 and, only a few weeks ago, the Congress and President Donald Trump – with the backing of Nunes and the GOP-led House Intelligence Committee – did the same. It will come up for reauthorization again in six years.
Section 702 is controversial for a number of reasons, but the most prevalent complaint is that it doesn’t provide enough safeguards for American citizens whose communications might be incidentally swept by investigators targeting foreigners.
That’s why, on January 11, about a week before Section 702 was set to expire, an unusual alliance of Republicans like Michigan Rep. Justin Amash, Sens. Rand Paul and Mike Lee, liberal Democrats and groups including the ACLU joined together to push a bipartisan amendment, introduced months earlier, to partially reform the program.
At the core of the newly proposed safeguards was a requirement that law enforcement officials be required to obtain a court warrant before digging into anything that might involve Americans’ communications. Their effort faced immediate pushback from, among others, Nunes and his colleagues on the intelligence committee, who even published a listicle spelling out the “dangers” of the amendment, which was called The USA RIGHTS Act.
Ultimately, the new restrictions were rejected and Section 702 was passed again, with minor tweaks. (The Senate and Trump would follow suit soon thereafter.) Nunes applauded his chamber’s vote, saying in a statement, “The House of Representatives has taken a big step to ensure the continuation of one of the Intelligence Community’s most vital tools for tracking foreign terrorists.”
Which brings us back to the memo.
Given what’s being alleged by Nunes, it seems – in the most charitable reading – deeply curious that he and his colleagues would vote to preserve and extend expansions to a law they are claiming was susceptible to such high-level abuse.
Indeed, without “traditional FISA,” there there would have been no FISA court and no clear process for legally securing a wiretap of Page – and, by a logic implicit in the memo, no pathway for the FBI and DOJ (and Democrats, etc.) to further their anti-Trump conspiracy.
The bottom line then is clear enough for any reasonable person to see: Nunes’ vocal support for Section 702 belies his stated concerns over the behavior of the FBI and DOJ. And his memo amounts to little more than a petty political document, drawn up for purely political purposes, destined to further stoke partisan divisions and make a full and fair accounting of Mueller’s probe that much more difficult.