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Nunes’s Memo Is a Stunt, but Surveillance Does Need More Scrutiny

Julian Sanchez

Of the many strange inversions the Trump era has produced, few
are as jarring as the flip in Republican orthodoxy about the
federal intelligence and law enforcement communities.
Law and order” conservatives who, a few
years ago, treated skepticism about the Patriot Act as a
blasphemous insult to the integrity of American intelligence
professionals now routinely traffic in talk of “deep state” conspiracies to abuse
surveillance powers.

That was thrown into relief Wednesday, when the FBI traded
brickbats with Rep. Devin Nunes (R-Calif.), chair of the House
Intelligence Committee. In an unusually public rebuke, the FBI condemned the imminent release of a memo
produced by committee staffers alleging misconduct by bureau
officials. Nunes quickly returned fire, accusing the FBI —
headed by President’s Trump appointee, Christopher A. Wray
— of having “stonewalled Congress’ demands for
information.” The memo may reportedly be released soon.

Democrats, stepping into the role Republicans had shed, have
sided with the intelligence community, invoking the need to protect
classified sources and methods. And it’s not hard to see why:
Nearly everything about Nunes’s reinvention as a champion of
privacy and civil liberties reeks of disingenuousness.

There are legitimate concerns about the Foreign Intelligence
Surveillance Court and the myriad means — not all requiring
warrants — by which law enforcement gets access to private
conversations involving U.S. citizens. But the fervor around the
memo means that these serious policy debates will follow so many
others into the maw of Trump-driven partisanship and that the
broader questions of how our national security state operates
— questions more about legal and institutional design than
the motives of individual FBI agents — will go
unexamined.

Nunes, along with many of the allies who joined him in whipping
up a public outcry to #ReleaseTheMemo, voted last month to reauthorize a
controversial warrantless spying authority known as Section 702.
Bipartisan efforts to add privacy safeguards for Americans’
communications were swatted down with confident assertions that
there had been no recorded abuses of such surveillance — an
assessment it seems odd to make at the same time as one is alleging
a systematic effort by senior intelligence officials to deceive
overseers and conceal egregious misconduct.

The overarching narrative
that the Nunes memo apparently seeks to build — a story of
rabid partisans within the Obama administration cooking up a bogus
Russia investigation to use as a weapon against Trump — is
almost certainly nonsense.

The manner in which Nunes’s hermetically sealed concerns about
misuse of spying powers have been pursued is unprecedented. The
House Intelligence Committee, which has historically been
discomfitingly cozy with the agencies it oversees, made no effort
to share what it purports to have uncovered with the FBI’s
Republican leadership — or, for that matter, with the Trump
appointees at the Justice Department who signed off on extending
the wiretap on former Trump campaign adviser Carter Page last year
— until Sunday. A day later, the House voted along party
lines to authorize the memo’s declassification and release it, over
the objections of the FBI and Justice Department, marking the first
time Congress has availed itself of that authority. Few lawmakers
were in any position to know whether the four-page memo is
accurate. Among House Republicans, only one, Rep. Trey Gowdy (R-S.C.), had
consulted the underlying classified documents upon which it was
based.

The overarching narrative that the Nunes memo apparently seeks
to build — a story of rabid partisans within the Obama
administration cooking up a bogus Russia investigation to use as a
weapon against Trump — is almost certainly nonsense. Among
many, many other glaring defects, it requires the inexplicable
complicity of far too many people, many of them Republicans
appointed by Trump, within the FBI and the national security
division of the Justice Department, as well as the credulous
acquiescence of the Foreign Intelligence Surveillance Act court,
whose bench is wholly populated by judges placed there by the
George W. Bush-appointed chief justice, John G. Roberts Jr.

On the narrower question of whether the wiretap order targeting
Page had a solid basis, the memo is unlikely to provide the public
with much clarity, either. The memo’s core contentions are
reportedly that FBI officials relied too heavily on a now-infamous
dossier compiled by British former intelligence officer Christopher
Steele without adequately corroborating its claims and failed to
disclose to the FISA court that Steele’s research had been
underwritten by Democrats in the market for political opposition
research. Even if all that were true, however, it’s impossible to
know how badly it would undermine the case presented to the
court.

Typically, FISA applications are fairly substantial documents,
with supporting affidavits running dozens of pages, minutely
fact-checked by government lawyers after making it through a
labyrinth of internal approvals within the FBI. It matters, then,
whether Steele’s dossier constituted the heart of the case
presented to the FISA court or was more like supplementary
material. But the underlying application remains classified, and
the other supporting evidence probably cannot be made public: The
FBI cannot defend itself by pointing to the Kremlin mole or the
electronic intercept or the hacked laptop that bolstered the
application, without providing Russian intelligence with a map to
its own vulnerabilities — or, at worst, a hit list.

Yet for all that, the memo could still have stumbled into
something of merit.

If FBI agents were less than fully candid with the FISA court,
that’s worth criticizing even if candor would not have changed the
outcome. If they failed to do due diligence on claims in Steele’s
dossier, that’s a problem even if the dossier was a relatively
minor piece of the puzzle. Those are problems not because they
reveal a grand conspiracy but because finding slipshod work in this
application — targeting a prominent, politically connected
American in an investigation certain to receive extraordinary
scrutiny — should make us wonder what would turn up if the
thousands of more-mundane FISA warrants issued each year were
subject to a similarly painstaking external review. Which, of
course, they never are: No FISA application has ever been made
public, and vanishingly few targets of FISA surveillance ever even
learn of the spying.

Moreover, whether it has anything to do with the
headline-grabbing Russia investigation, something odd is
clearly afoot with the FISA court. From its inception in 1979
through 2002, the court never turned down a single wiretap
application — a sign, intelligence agencies assured us, of
the rigorous approval process before reaching the court, rather
than the willingness of its judges to act as rubber stamps. The
steep spike in FISA applications after 9/11 did finally result in a
few the court saw fit to reject or modify.

Until 2015, the highest number of rejections in a single year
was five. In 2016, there were 34 — or twice as many as the
court had turned down in its entire history before then. The court
also saw fit to “modify” a striking 310 applications
before approving surveillance. The previous record, set in 2004,
was 94. Nor is this unusual burst of resistance a side effect of an
unusual number of applications: The number submitted in 2016
— 1,457 — is a bit below the average for the period
following 2001.

For some reason, there has been a dramatic increase in the
number of applications judges have found deficient in some way.
This should be concerning, because however diligent they may be,
FISA court judges are ultimately dependent on the facts and
analysis they’re presented by the government being reliable:
The court has no ability to gather its own intelligence.

If Republicans were not so set on scripting a conspiracy
thriller to stir the blood of cable news audiences, they might
broaden the scope of their concern and ask whether whatever issues
they’ve uncovered are not evidence of a secret vendetta
against Trump and his employees but symptoms of some more general
degradation of the FISA review process — and perhaps other
less strictly regulated authorities. And while Democrats have every
reason to treat the memo’s larger narrative as suspect, they
should not dismiss its specific findings out of hand, at least not
wholesale. That the conspiracy against Trump is a fantasy does not
mean that the investigation of his campaign proceeded without
missteps. And if Page should turn out not to have been acting as an
“agent of a foreign power,” then his public branding as
one is a genuine wrong that would deserve to be remedied, even if
it were the product of error rather than malice.

It seems unlikely that the conflict over the Nunes memo will, in
the end, amount to much more than a proxy war over the legitimacy
of special counsel Robert S. Mueller III’s probe of the Trump
campaign. But in a better world, it would be an opportunity to
exercise better oversight.

Julian
Sanchez
is a senior fellow at the Cato Institute and studies
issues related to technology, privacy and civil liberties.