National Security & Defense

Positioning over the Nunes FISA Memo Continues Ahead of Its Release

Devin Nunes speaks to reporters on Capitol Hill, October 2017. (Carlos Barria/Reuters)
The FBI and Democrats don’t have good reasons for wanting to prevent its disclosure to the public.

It appears very likely that President Trump is going to allow the disclosure, in some form, of the memo on alleged FISA abuse authored by majority staff of the House Intelligence Committee under the direction of Chairman Devin Nunes (R., Calif.). It could happen as early as today. As one would expect, both sides of the dispute over the memo are intensifying their pre-publication efforts to influence public reaction — as discussed here in last week’s column considering objections to the memo.

Since before the Republican-led committee voted (along partisan lines) to seek the memo’s declassification and publication, the FBI has been complaining that it was not permitted to review the memo. As I explained last week, this was a very unpersuasive complaint. Having stonewalled the committee’s information requests for several months, the Bureau and Justice Department are hardly well positioned to complain about being denied access; the committee, by contrast, has every reason to believe they would have slow-walked any review in order to delay matters further.

All that aside, the FBI was guaranteed access to the memo before its publication because of the rules of the process. Once the committee voted to disclose, that gave the president five days to object. During that five days, Trump’s own appointees at the FBI and DOJ would have the chance to pore over the memo and make their objections and policy arguments to their principal, the president, and to the rest of the Trump national-security team. This tells us the real objection was not that they were barred from reviewing the memo; it is that they were barred from reviewing it on a schedule that would make it more difficult to derail publication.

Fox News reports that FBI director Christopher Wray reviewed the memo on Capitol Hill on Sunday — before the committee even voted to release it. Subsequently, two senior FBI officials — one each from the Bureau’s counterintelligence and legal divisions — reviewed the memo and “could not point to any factual inaccuracies” in it, according to an unnamed source who spoke to Fox.

There has followed the usual gamesmanship that intensifies public cynicism about “the Swamp.” Based on their review of the memo, the FBI and committee Democrats sought some changes. Though committee Republicans did not agree that these edits were necessary, they nevertheless agreed to make them. Democrats promptly used this accommodation — which they and the FBI had requested — to argue that publication should now be withheld because the memo has been “materially” and “substantively” altered since the committee votes. Nunes counters that the edits are minor and include mere grammatical fixes. Given that the people who are complaining about the changes are the ones who insisted on them, the chairman rejects what he calls an “increasingly strange attempt to thwart publication of the memo.”

Apparently unable to cite inaccuracies, the Bureau has shifted to the objection we anticipated last week — namely, that the memo takes things out of context. The purported omission of material information, it is said, has the effect of making the memo misleading. The FBI put out a statement Wednesday asserting that it had “grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.”

The committee and such other informed critics as Senator Lindsey Graham have been suggesting that the FBI and Justice Department used allegations from the Steele dossier in an application for a FISA Court warrant but did not tell the judge important facts about the dossier (specifically, that the dossier was an unverified anti-Trump opposition-research project, commissioned by the Hillary Clinton campaign). Thus, Chairman Nunes’s hard-edged response to the FBI’s statement was what one would expect: If anyone knows about “material omissions,” it is the FBI. “It’s clear,” Nunes states, “that top officials used unverified information in a court document to fuel a counter-intelligence investigation during an American political campaign.”

If the memo does not contain factual misstatements and the major complaint is that it is incomplete because salient facts are omitted, that is an easy problem to solve. I elaborated on that in last week’s column:

As with any summary, there is always a danger of [the memo’s] being misleading. This [is comparable to] 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.

In the column, I was addressing claims by committee Democrats, but these echo the complaint the FBI is making now. We pointed out that the simple way forward was for Democrats to propose the inclusion of any details necessary to correct any misimpressions, or to prepare their own memo that would reveal the hidden details and illustrate that Republicans were engaged in partisan spin. In fact, committee Democrats have prepared a memo, which is under review and should ultimately be released.

Obviously, the same option is available to the FBI. In fact, it is more available to the FBI: Unlike Congress, the bureau “owns” the classified information in the underlying documents. The Bureau is thus well positioned to publish a declassified summary that discloses any details it says Nunes has mendaciously hidden; or better yet, it could disclose the underlying documents (with any necessary redactions of classified information).

I contended last week that Nunes, a smart guy, had to be well aware that this could be done and that he would look very foolish if, when more facts were inevitably exposed, it turned out he had put out a dishonest version of events. That’s why I’m encouraged by this part of his response to the FBI’s statement: “They [i.e., the Bureau] are welcome to make public, to the greatest extent possible, all the information they have on the abuses.”

The point here is to preserve and protect the FBI as an institution, which requires getting to the bottom of any potential effort to exploit the FBI for purposes of electoral politics.

All along, the committee has been pushing for disclosure. The summary memo was written because the FBI and Justice Department objected to disclosure of the underlying classified information. Now, the FBI’s objection is that the memo is not as complete as the underlying information. Either way, the point is to avoid public scrutiny.

Two final thoughts. First, the coverage has tried to make this all about Nunes, and then to lampoon him as alternatively cagy and clueless. In point of fact, Republicans on the committee and throughout the House have been solidly behind disclosure of the memo. Many of these are among law enforcement’s strongest supporters. These include Representative Trey Gowdy (R., S.C.), a respected former prosecutor who is part of the GOP mainstream, and Representative Pete King (R., N.Y.), a moderate Republican who has been deeply involved in national-security issues. The point here is to preserve and protect the FBI as an institution, which requires getting to the bottom of any potential effort to exploit the FBI for purposes of electoral politics. Democrats used to think diligent oversight of the FBI’s exercise of national-security powers was pretty important.

Second, usually we only find out about claimed abuses of national-security power when they are illegally leaked to the press, which then risks compromising vital intelligence operations by publishing classified information. Generally, the media and Democrats fiercely defend this practice.

Here, Nunes and the intelligence committee have gone about things the right way: not leaking, conducting oversight, and carefully handling classified information so that the things the public should know are disclosed without compromising vital intelligence and its sources. Yet, Democrats are condemning the process and much of the media seems strangely indifferent, if not opposed, to disclosure.

It’s almost as if the press cannot get behind public accountability unless it is the New York Times, rather than a congressional committee, deciding what gets published and which government operations warrant careful examination.


NR Editorial: The Memo Freakout

This Memo Better Live Up to the Hype

Why Trust the FBI?


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