Friday, the House Permanent Select Committee on Intelligence (HPSCI) released the now-infamous “Nunes Memo” to the public. The memo—written primarily by Republican Rep. Devin Nunes with no input by Democrats—details the Committee’s concerns about the FBI’s ongoing investigation into connections between the Trump campaign and Russian foreign intelligence. It focuses on the circumstances of the Foreign Intelligence Surveillance Act (FISA) warrant that allowed surveillance of Trump campaign foreign policy adviser Carter Page, who was suspected by the FBI of being a Russian agent.
“Our findings…raise concerns with the legitimacy and legality of certain DOJ and FBI interactions with the Foreign Intelligence Surveillance Court and represent a troubling breakdown of legal processes established to protect the American people from abuses related to the FISA process,” the Memo said. The formerly classified memo has been used as a political football for the greater part of the last two weeks, with conservative news media and Republican politicians saying that the memo confirms that Robert Mueller’s investigation into Trump has been tainted from the start.
But let’s consider what the memo actually is. It is, supposedly, a summary of the evidence that was used by the FBI in its application to obtain a wiretapping warrant from the secretive Foreign Intelligence Surveillance Court.
But there is a document that outlines exactly what was in this application. It’s … the warrant application itself. Or, failing that, there is the court order itself, which approved the warrant application (and was written by an impartial judge and not a partisan politician).
Trusting the memo without seeing the application is like listening to a book report about A Christmas Carol. Depending on who wrote the report, it’s either about a greedy old man or a kind-hearted capitalist supporting the troubled family of lazy Bob Cratchit (and who is harassed by ghosts as a reward!) Without the warrant, the memo is worthless.
Out of context, it’s impossible to know how big an impact any one piece of evidence played in obtaining the warrant, and a three-page memo put together by a member of Trump's political party is unlikely to get us any closer to the answer.
Obtaining access to underlying evidence used as a basis for FISC-approved surveillance has been one of the great quests of this decade. A FISC court order was published by The Guardian in 2013 as part of the Edward Snowden documents; portions of a National Security Letter were released in 2015 by Calyx, a nonprofit ISP after an 11-year court battle. The American Civil Liberties Union is currently engaged in an ongoing court battle to obtain more of the primary source documents used for the FISC order released by The Guardian.
MERE WEEKS AGO, a man challenging his own surveillance under FISA was astonished to learn at his trial that appeals court judges were called into a secret meeting by government attorneys to discuss his case and that he nor his attorney would be allowed to attend.
The point here is that privacy and civil liberties-minded people have wanted more insight into the FISC process for years. And the same Republicans that have repeatedly voted to expand the surveillance powers of America’s spying apparatus—who have held many of the most important surveillance debates related to FISA and FISC in closed sessions—are suddenly outraged at FISC overreach and champion themselves as fighters for transparency. Meanwhile, they just voted to expand FISA surveillance, and have never seriously inquired why judges almost never reject a surveillance warrant application once it’s before the FISA court. As of 2013, the FISC had only rejected 11 of the more than 30,000 cases put before them.
There is no reason whatsoever to believe that a three-page memo written by someone who was supposed to recuse himself from this Russia stuff because he couldn’t be trusted to be impartial comes anywhere close to accurately distilling the basis for the warrant.
But the HPSCI would have us believe that this time the FBI and DOJ overreached and fucked up. It’s disingenuous for Trump, the GOP, and the Committee to expect the American public to believe that NOW it’s concerned over “abuses related to the FISA process.”
This is the world Republicans (and many Democrats) voted for: one where surveillance decisions are decided in total secrecy and with little oversight. One that uses murky justifications and obscure rules to operate in the shadows in the name of protecting national security.
Releasing the Nunes Memo looks like transparency, but it’s not. Transparency would be releasing the entire application so the public can judge for itself. Transparency would be dismantling the whole system and making past records public. The GOP needs to learn that it can’t support a massive surveillance dragnet and then cry foul when one of its own is caught. This whole thing is so, so stupid.