The Nunes Memo and the Law of Unintended Consequences

The memo is out, and it is already stale. The Nunes memo makes one central allegation: that the FBI and Department of Justice did not live up to the duty of candor expected of them by the in camera ex parte nature of proceedings before the Foreign Intelligence Surveillance Court (FISC). My early take has been that the memo’s apparent omissions on what was actually reported to the FISC tends to indicate that more was revealed to the court than the memo admits. Early indicators are that the FISA process and the officials involved will come out okay. By Saturday, the Washington Post reported that the DOJ and FBI did, in fact, communicate relevant information about Steele to the court. By Monday, Politico reported that, in fact, contrary to the central assertion of the memo, the application did, in fact, contain information about Steele’s political backing.[1]

As the details continue to emerge of exactly what transpired to obtain the FISA authorizations targeting Carter Page—and those details will emerge, as the House Intelligence Committee voted Monday to send the minority’s rebuttal memo to the White House for review—it is worth pausing to reflect on what unintended consequences may result from the process that was abandoned in declassifying the information in the memo. Experienced national security practitioners and policymakers know that a significant aspect of crafting amendments to laws, policies and practices in this space is avoiding unintended consequences. With the memo’s release just days behind us, we can already start to preview the potential backlash.

Trust in Congressional Oversight

Intelligence oversight involving different branches of government is only effective if the institutional players have at least a baseline degree of trust. The congressional intelligence oversight committees were created in the late 1970s, around the same time as FISA, in order to provide an outside check on intelligence community activities. The committees were intentionally set up to conduct their business in closed sessions, following appropriate security measures, so that they could receive sensitive executive branch national security information in a way that facilitated their oversight role, but also respected the classified nature of the information and executive branch prerogatives. The National Security Act of 1947, as amended, requires, among other things, that the executive branch keep these committees informed about significant intelligence activities, including significant intelligence failures. (See e.g., 50 U.S.C. 413a.) The committees generally receive information through a combination of written notifications provided pursuant to the National Security Act, formal and informal briefings for members and staff, and reports provided according to statutory requirements. For example, FISA requires the Attorney General to submit reports to Congress, including one on a semi-annual basis that “fully informs” the oversight committees about how FISA is being used. (See e.g., 50 U.S.C. 1808.)

The executive branch provides information to Congress about intelligence activities because these laws require it. But the efficiency of this process, and the extent to which the intelligence community cooperates in a timely and meaningful way, depends in some part on the community’s trust that the members of these select committees will handle the information properly. Although the quality of the work done by the committees and the effectiveness with which the leadership of the committees has worked together has ebbed and flowed over time, the committees are generally thought to be among the less partisan committees in Congress, with most members understanding the importance and heightened responsibilities of their role.

I do not mean to paint too rosy a picture of congressional intelligence oversight. There are members of the national security community for whom the Senate Intelligence Committee’s report on detention and interrogation, for example, is still not far enough in the rear view mirror to not arouse emotion. Nor do I mean to suggest that lawmakers agree on amendments to national security related laws, how policies are implemented, or the merits of specific intelligence activities they learn about. They disagree, and some are persistently vocal about it. But most of the time, even the staunchest opponents of some intelligence activities follow the appropriate process in coordinating with the executive branch when they want to discuss an issue publicly, because they respect the equities involved.

What we have seen in the past week is a significant and damaging departure. It is beyond the usual politics that can invade, from time to time, national security policy and practice. The process that the Chairman of the House Intelligence Committee used to draft, facilitate White House approval, and release publicly, will likely cause lasting damage to the credibility to congressional intelligence oversight generally; the intelligence committee specifically; and the intelligence community’s willingness to provide it with information necessary for it to fulfill its proper role.

FISA Applications Classification

America and the world now knows, for certain, that an American citizen, Carter Page, was the target of FISC-authorized surveillance for approximately one year, from the fall of 2016 to the approximately the early fall of 2017. This fact, as well as additional information included in those applications, has been selectively declassified. All individuals or entities who were in communication with Page during the period of court-authorized surveillance now know that their communications were likely intercepted. Hostile foreign intelligence services know a few things, too: at the very least, they know that Page was targeted, they know when Page was targeted, and they know who approved the surveillances.

The hurried declassification of this information will likely have unintended effects on both civil and criminal matters by setting a precedent for the public release of more information related to FISA. Just this week, in a civil FOIA litigation, D.C. federal court Judge Amit Mehta of the U.S. District Court for the District of Columbia ordered the government to explain whether it will continue to argue the so-called “Glomar” response in a FOIA case where the government is trying to protect FISA-related materials from public disclosure. The fact of the declassifications in the Nunes memo will likely be raised in other civil litigations involving the protection of classified information. Meanwhile, the New York Times has filed a motion with the FISC to unseal the Page applications, as well as a related FOIA request. The government will now have to come up with arguments for why it was appropriate for the White House and the House Intelligence Committee majority to release certain information about the Page surveillances publicly, but not the entire documents. This is just the beginning.

Dealing with the allegations of misconduct or bad faith made in the memo will be more serious, and possibly more consequential, particularly if they are not corrected. On the question of whether the minority memo should be published, I am leaning toward the view that it should. On one hand, I don’t like the process that the majority followed, and am loath to encourage other members of Congress to continue to bypass the normal order of seeking agency review and coordinating with the Director of National Intelligence and Justice Department. However, the minority seems to be making an effort to coordinate its review process with relevant agencies. And, given the misleading document that was released by the majority, there is a gap in the public’s understanding.

Moreover, if the current majority memo remains the only public description of what transpired before the Court on the Page FISAs, criminal defense attorneys representing defendants in cases where the government seeks to use FISA information will immediately have a new opportunity to argue that the FISA process is unfair. They will have fresh basis on which to argue that the FISA process is overly secretive and make the case that a judge should allow the relevant FISA application to be turned over to defense counsel for review. This could include terrorism cases, in addition to cases involving violations of the espionage statutes, or other complex criminal cases where FISA information might be introduced as evidence. Some may argue that this progression could be a net positive for transparency: that FISA applications should routinely be turned over to the defense, and that there is far too much secrecy in FISA matters anyway. I’m not here to argue that case today; I write simply to point out that the process abandoned this week may have significant consequences, which I highly doubt the political characters in this episode thought about carefully in advance.

Transparency

The intelligence community has done a tremendous amount of work in recent years to rebuild public confidence after the Snowden disclosures and other damaging leaks of classified intelligence programs. A big part of that initiative has involved a new approach in evaluating what type of information the community can make public, along with better public communication of the laws and rules the community operates under. Some of those efforts involve declassifying information of historical interest (such as this recent release). But in my view, the most important type of transparency the community can engage in is that which is timely, accurate and meaningful in the context of current public policy issues. That means that the information should be a best effort at not releasing false information that must later be corrected. It means that information should be considered for release if it will impact the public’s understanding of a public policy issue of immediate interest. It means that the release should be done with care, thought, and consideration of how it will be used.

The Nunes memo does none of these things. With its substantial omissions, it clouds the public’s understanding, not enhances it. It is selective declassification at its worst, and politicization of intelligence at its core. The effect of its release—particularly in the notable absence of vocal support for the FBI from other leaders in the intelligence community—will decrease public confidence in the FBI and Justice Department. It damages the House Intelligence Committee as an institution from the perspective of those in the intelligence community, who can no longer trust that the committee will comport itself according to the regular processes of intelligence oversight. And it damages transparency efforts, because it uses “transparency” as cover for a political act. The memo’s release, with the shoddy process that it followed, is transparency at its worst.

[1] Politico reports that the relevant information was contained in a footnote. If the worst internal repercussion to emerge within the Justice Department from the Nunes memo is an updated policy discouraging the use of footnotes in FISA applications, that would not be so bad.