Nunes Memo Could Weaken FISA, Congressional Panels

Officials worry about compromising sources, chilling intelligence officials

House Intelligence Chairman Devin Nunes, R-Calif., has pushed releasing a committee-drafted memo despite reservations from the FBI and Justice Department. (Bill Clark/CQ Roll Call)
House Intelligence Chairman Devin Nunes, R-Calif., has pushed releasing a committee-drafted memo despite reservations from the FBI and Justice Department. (Bill Clark/CQ Roll Call)
Posted February 2, 2018 at 11:06am

Releasing a four-page memo authored by aides to House Intelligence Chairman Devin Nunes, R-Calif., alleging abuse of surveillance power by the FBI could ultimately weaken the process by which U.S. intelligence agencies seek secret court orders to conduct surveillance on foreigners, lawmakers and former intelligence professionals say.

Moreover, releasing the memo could erode the trust between the intelligence community and the congressional intelligence panels, these officials say.

President Donald Trump and his top White House aides are said to favor releasing the memo as early as Friday, without any changes, despite strong objections by the Justice Department and the FBI. Republicans in Congress, breaking with past practice, have said they would not allow a dissenting memo from the House Intelligence panel’s Democrats to be made public alongside the Nunes memo.

The combined effect of releasing a partisan memo accusing FBI officials of bad faith while not allowing dissenting views to be aired could ultimately weaken the powers of congressional intelligence committees, said Rep. Adam B. Schiff, D-Calif., the top Democrat on the House intelligence panel, who has waged a months-long battle against Nunes over the conduct of an investigation into Russian meddling in the 2016 election.

Releasing the memo constitutes “a violation of the bargain that was made by Congress in establishing the intelligence committees in the first place,” Schiff said Thursday at an event hosted by the University of Pennsylvania. “The bargain was, ‘You share with us, you in the intelligence community, the greatest secrets you have, and we’ll be responsible stewards, we’ll protect your sources and methods and we won’t politicize what you do.’”

That bargain will be broken by release of the Nunes memo, and that means “the intelligence community will not share with us what they used to because they’ll feel, rightfully so, that they can’t trust the committee with what they’ll do with it,” he said.

Secret sources who provide U.S. intelligence agencies with information also may decide that their identities may not be protected, Schiff said.

Congress first established the Senate Select Committee on Intelligence to oversee U.S. intelligence agencies in 1976 after a series of abuses involving the CIA, the FBI, and the National Security Agency, came to light in the years preceding the decision. A panel led by then-Sen. Frank Church, D-Idaho, recommended such congressional oversight. The House Permanent Select Committee on Intelligence was established a year later.

The Nunes memo is said to accuse top FBI officials of improperly obtaining a secret surveillance warrant under the Foreign Intelligence Surveillance Act to collect information on Carter Page, a Trump campaign official who had repeated contacts with Russian officials and traveled to Moscow during the 2016 campaign. The New York Times reported on Thursday that the White House is not seeking any redactions from the memo and will tell Congress that it had no objections, leaving the decision to Republicans on the House Intelligence committee on whether to release it.

Some House Republicans allege that the FBI’s decision to monitor Page’s communications was driven entirely by a dossier prepared by Christopher Steele, a former U.K. intelligence official who was contracted by both Republicans and Democrats to probe then-candidate Trump’s ties to Russia. Democrats and former FBI officials have countered that the decision to obtain a surveillance warrant on Page was driven by more than just that one dossier.

House Speaker Paul D. Ryan, R-Wis., has backed Nunes and on Thursday said that “if American civil liberties were abused then that needs to come to light.” Ryan said the memo “is not an indictment of the FBI, of the Department of the Justice” and “does not impugn the attorney general or the [Special Counsel Robert] Mueller investigation.”

The only pushback so far has come from Sen. John Thune, R-S.D., the third-most senior Republican in the Senate, who on Thursday said that House Republicans should slow down and allow the Nunes memo to be reviewed by Sen. Richard Burr, R-N.C., chairman of the Senate Intelligence Committee. Thune said House Republicans also should heed the FBI’s warning that the agency had “grave concerns” about the release of the memo.

The House committee voted on a party-line basis to release the memo, with all Democrats voting no. Later, Democrats questioned whether the version of the memo that was voted out of committee was the one that was sent to the White House National Security Council for review. Schiff has said the memo was substantially altered without any of the committee members seeing it, while a spokesman for Nunes has said the changes were mostly cosmetic.

Schiff also said that only he and Rep. Trey Gowdy, R-S.C., another member of the Intelligence Committee, have read all of the underlying Justice Department documents that justified the surveillance on Page and that it is not possible to have a full understanding of how the department obtained a surveillance warrant without reading all the material.

Typically, FISA warrants approved by the secret court “are thick documents, 50-60 pages” long, John McLaughlin, a former deputy director of the CIA who also served as the agency’s acting director for three months in 2004, said in a Twitter post. The four-page memo drafted by aides to Nunes is more likely a “carefully picked bowl of cherries” from the more extensive FISA warrant, McLaughlin said.

Politicizing a process used by intelligence agencies to obtain secret warrants under the FISA law also could weaken the surveillance apparatus that is already under attack from both sides of the political spectrum.

“A decision to cover a certain target is traditionally made by the Foreign Intelligence Surveillance Court based on a request prepared by career professionals governed by the rule of law, because we want to separate the necessary business of spying from the influence of politics,” retired Gen. Michael Hayden, former director of the CIA and the National Security Agency, wrote in the Cipher Brief newsletter.

“By injecting the partisan divide into espionage, I fear that this current round will be destructive of the FISA process, congressional oversight, the effectiveness of law enforcement agencies, and frankly, to the Office of the President itself,” Hayden wrote.

The Nunes memo and the constant drumbeat of a “deep state” working to undermine the Trump presidency also is likely to erode Americans’ trust in the FBI and other law enforcement agencies, Schiff said.

“So when the FBI fans out across the country, investigating terrorism cases, are Americans going to think, what’s your agenda? Are you part of the secret society? Where are you coming from? How much can I have confidence in what I tell you will not be abused?” Schiff said. “There’s so much hyperbole out there that it’s going to cause Americans to question many patriotic FBI officials.”