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Memo wars: When secrets get out, what happens next?

putting it in perspective

The release of the Nunes memo and its Democratic rebuttal have the potential to chill relations between the intelligence community and Capitol Hill, make allied intelligence agencies wary about sharing secrets, and amp up demands by defendants to use FISA documents in their trials.

Rep. Adam Schiff (D) of California, ranking member of the House Intelligence Committee, speaks as reporters keep an eye on their phones after a closed-door meeting of the House Intelligence Committee on Capitol Hill Feb. 5.
Alex Brandon/AP
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The United States government holds tight to its classified information. Consider this: The last US secret documents from the World War I era were not declassified until 2011. They dealt with the ingredients and methods for producing invisible ink of such high quality it could be used by spies. It took a century until technological advances rendered the old recipe obsolete, then-CIA Director Leon Panetta said at the time.

Given that culture of official secrecy, some current and former US intelligence and law enforcement officers find it surprising, even shocking, that the so-called “Nunes memo” has become public. The memo, written by aides to House Intelligence Committee Chairman Rep. Devin Nunes (R) of California, accuses the FBI of abusing surveillance powers to get the Russia investigation rolling. It contains information about decisions made by a secret court that oversees spying on the communications of Americans in national security investigations.

The Feb. 2 release of the congressional memo could have wide-ranging unintended consequences, say experts. It could chill relations between the intelligence community and Capitol Hill, make allied intelligence agencies less eager to share their own secrets, and amp up demands by some defendants to use Foreign Intelligence Surveillance Court documents in their own trials.

“I’m concerned about the revelation of things that go before the FISA court ... we’re talking about the most sensitive things the government does on behalf of the American people,” said former Attorney General Eric Holder at a Monitor breakfast for reporters on Feb. 7.

A Democratic memo rebutting charges of FBI bias could push this process along, depending on what it says, and if and when President Trump approves its release.

The White House is “undergoing the exact same process that we did with the previous memo, in which it will go through a full and thorough legal and national security review,” said White House Press Secretary Sarah Huckabee Sanders on Tuesday.

The central charge of the Nunes memo is that the FBI relied too heavily on opposition research funded by the Hillary Clinton campaign in its application to the Foreign Intelligence Surveillance Court (FISC) for a warrant to eavesdrop on the communications of Carter Page, who served for a time as a foreign policy adviser to the Trump campaign.

The ranking Democrat on the House Intelligence Committee, Rep. Adam Schiff of California, has drawn up a 10-page document intended as a rebuttal to this assertion. It reportedly notes, among other things, that the court application did, in fact, say that the source of the information in question came from a partisan source, though that acknowledgement came in a footnote. It says that the application contained confirmations from other sources, notes that it was extended by the court at least three times, and points out that Mr. Page first attracted the FBI’s attention as early as 2013. The bureau at that time warned him it had information that Russia had targeted him as a potential US source.

The full House Intelligence Committee has voted to release the Democratic rebuttal. The president is expected to approve its release as well – but Democrats fear he will redact embarrassing or damaging information from the document under the guise of security concerns.

The political argument over release has thus been flipped over since last week. In regards to the Nunes memo, Republicans argued for “transparency,” while Democrats worried about revealing secrets. On the Schiff rebuttal, the White House has said it will consult with the FBI and Justice Department as to whether release is safe. Democrats are the party pushing for more information to be made public.

“Everyone’s arguments ... have been somewhat complicated,” says Andrew Wright, an associate professor at Savannah Law School and a founding editor of the legal blog Just Security.

Experts note the Nunes memo has already revealed things the FBI would have much preferred be kept under wraps. Carter Page and his attorneys now know the exact dates surveillance began and was renewed, for instance. That gives them insight into what law enforcement knows, and what it may not know. More important, the people Page was talking to know what the FBI has on them in terms of electronic surveillance, as well.

One of the most important inadvertent consequences here may be damage to the relationships that US intelligence has with allied agencies around the world. The lesson foreign spy chiefs may take from this is that Congress may declassify information shared with the US, despite promises of secrecy from the American intelligence community. Such information can be crucial – both Australia and the Dutch have reportedly passed along tips highly useful to the US investigation into Russian influence in the 2016 election.

“To me in some ways the biggest consequence of this is that other countries may be reticent to share information with us if they feel it is going to be handled this way,” says Dr. Wright.

Similarly, the relationship between the US intelligence community and congressional intelligence committees may be damaged. These panels were set up in the late 1970s to provide an outside review of CIA and NSA activity. The understanding was that the panels could have access to virtually all US secrets, in exchange for treating the information with care and following strict security measures of their own. But disputes over access still occur – and now they may become more frequent, and perhaps more intense.

Finally, the disclosure of some Foreign Intelligence Surveillance Court (FISC) information may simply create press and public demands for more of the same. Already, The New York Times has filed a motion with the court asking for full disclosure of all material dealing with Carter Page wiretapping applications. Given the partisan arguments now occurring with their roots in these documents, “disclosure would serve the public interest,” the Times argued in its motion.

Right now, defendants in cases where material derived from FISC-approved wiretaps is being used against them don’t get to review the application for the court warrant, or any application documents. The Nunes memo may open a crack that allows such information through.

“I assume Carter Page, if he is charged, will successfully be able to win review of his FISA application ... that may mean he doesn’t get charged or, if he does, Mueller has to bend over backwards to avoid using FISA material,” wrote independent surveillance expert Marcy Wheeler on her blog Emptywheel last week.

The next step in this process – release of the Schiff memo – could come within days. The Democratic Mr. Holder, for his part, hopes Mr. Trump allows the document to go forward with only minimal cuts.

“I’m pretty sure that Adam Schiff, in that memo, would not reveal inappropriate things,” Holder says.

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