The FISA Follies: The Nunes Memo Edition

After much publicly acrimony and week-long speculation about its contents, the “Nunes Memo” (named for GOP House Permanent Select Committee on Intelligence (HPSCI) chairman Devin Nunes of California) was finally made public today. In reality, the document was authored by thus-far unidentified GOP HPSCI staffers and does not represent a genuine, bipartisan committee product. It is thus, by definition, a purely partisan document.

But what of its substance, if any? Is there anything truly new or genuinely important in the document that is worthy of follow up by Special Counsel Robert Mueller? Unlikely. Should the memo serve as an opportunity for Congress to revisit its anemic surveillance oversight and reform record? Absolutely. First, let’s deal with the memo.

The memo itself is concerned with FBI Foreign Intelligence Surveillance Act (FISA) surveillance requests targeting then-former Trump campaign aide Carter Page in 2016. The core Nunes Memo allegation is that material that would’ve cast doubt on the credibility of the so-called “Steele Dossier“–a piece of campaign opposition research on the Trump campaign compiled by former British intelligence operative Michael Steele, portions of which were allegedly used in the October 2016 FISA application on Page submitted to the FISA Court (FISC) by the FBI. In essence, the Nunes Memo alleges that a piece of political campaign material was used in an effort to target Trump and his campaign staff, and that the FBI failed to disclose Steele’s political connection to the DNC and Clinton campaigns to the FISC. 

What the Nunes Memo fails to note is that Page was clearly a “person of interest” to the FBI as early as 2013 in connection with a counterintelligence investigation involving Russian spies–agents who were apparently attempting to recruit Page as a source. As a former intelligence officer myself, its very easy for me to see why the Bureau would be interested in Page and his ongoing contacts with Russians. That Nunes and his staff apparently don’t see the problem presented by Page’s Russian contacts should be of concern to anyone who cares about preventing hostile intelligence services from gaining access to Americans with potential political influence and access to sensitive government information via their friends in government.

The Nunes Memo also implies that the FBI deliberately lied to the FISC about what it knew about Steele’s opposition research target and clients. From p. 2 of the Nunes Memo:

Neither the initial application in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele’s efforts, even though the political origins of the Steele dossier were then known to senior DoJ and FBI officials.

Did the FBI have a statutory requirement to disclose that information? The specifc legal requirements for an application for electronic surveillance do not mandate that explicitly political/campaign-related conflicts of interest or similar politically sensitive information be included in the application. Should it? Absolutely. But in releasing the memo, neither Nunes, House Speaker Paul Ryan, or President Trump have called upon Congress to address this loophole. Neither have their Democratic Party counterparts.

What House Democratic Whip Steny Hoyer of Maryland has called for is Nunes’ head. Speaker Ryan is unlikely to accomodate the request, though one could make a very credible argument that he should.

Nunes’ tenure as HPSCI chairman has been a poltical and oversight disaster. Nunes and his GOP colleagues have made much about alleged surveillance violations against white businessmen while ignoring far more credible allegations of surveillance abuse against politically active people of color. The memo on alleged violations of Page’s rights rings quite hollow when you consider that the House GOP-controlled HPSCI conducted no investigation into documents released by Edward Snowden showing clear evidence that Arab- and Muslim-American leaders had been the target of unjustified–and likely unconstitutional–surveillance. The targets included a then-Republican Arab-American Virginia House of Delegates candidate, Faisal Gill.

Nor has the House GOP-controlled HPSCI shown the slightest interest in investigating the near-complete breakdown of internal Intelligence Community (IC) watchdog. Indeed, I have heard credible reports about whistleblower retaliation problems at multiple IGs across the IC. But instead of investigating these and other genuine IC oversight challenges, the House GOP leadership–and their Democratic counterparts–have spent their time and energy arguing over a political “nothingburger” for weeks…ensuring that the FISA Follies continue.