In my previous
post on the Nunes memo[1],
I looked at the extensive run-up to its actual publication, which occurred
about six weeks after the
press caught wind of it. During that
six weeks—despite the absence public access to the memo—there was extensive and
highly politicized debate about it. This
post concerns the contents of the memo itself, which was published on February
2, 2018, and some of its aftermath.
What’s in the Memo?
To review: the four-page
Nunes memo was created by the Republican staff of House Intelligence
Committee Chairman Devin Nunes without Democratic input; it is partially based
on classified information obtained by the committee in its months-long effort
to investigate the FBI and Justice Department and their ongoing probe into
whether the Trump campaign coordinated with Russia. The memo alleges the FBI abused its
surveillance authority, particularly when it sought a secret court order to
monitor a former Trump campaign adviser, Carter Page.
The memo describes how research funded by the Hillary Clinton campaign and the Democratic National Committee played a role in the FBI's obtaining a Foreign Intelligence Surveillance Court (FISA) warrant to surveil former Trump campaign adviser Carter Page.
The research effort was that of former British intelligence officer Christopher Steele, who produced a now infamous dossier of lurid allegations against Trump. Steele had been hired for his work by Fusion GPS, an opposition research firm who had themselves been hired by Hillary Clinton's campaign and the Democratic National Committee. (Washington Post)
The entire memo, then, consists of charges that the
FBI mishandled its application to the FISA court by omitting the fact that
Steele’s information was politically biased and, therefore, the FBI is guilty
of misconduct that the FISA warrant was tainted politically.
Problems with the Memo
There are the two principle accusations in the memo. It asserts that
- the FBI kept Steele’s potential political bias hidden from the court.
- the FISA court depended on Steele’s potentially biased information to issue the warrant.
To understand the glaring weakness in these
accusations, it’s helpful to understand the FISA court process. The court was established in 1978 by a Senate
committee after revelations that intelligence services were putting citizens
under surveillance without adequate oversight.
It is a formal court presided over by a federal judge who, with her
staff, examines applications with legal rigor.
The government agency (in the Nunes case, the FBI) applies for the
warrant, which is carefully examined.
Application for new surveillance warrants are required every 90 days and
the judge renews the warrant only after fresh documentation is presented. Court proceedings are classified.
The first assertion of unreported political bias in
the memo is just false, as Nunes later
acknowledged. Confronted with the
fact that potential political bias was
included in a footnote, Nunes
then suggested that the small footnote could easily have been overlooked. But that is highly unlikely. The application review
process involves at least a dozen people, including federal judges whose job it is to scrutinize whether the warrant is yielding relevant and legitimate information to the FBI’s case. (Washington Post)
In addition, potentially biased information (such as,
for instance, that an accomplice had beenpromised dismissal of his charges in
exchange for his testimony) is routinely included in court applications, which
the judge then takes into account. Nunes
faulted the FBI for not mentioning that the political bias was specifically from
the facts that the Clinton campaign and the Democratic National Committee, but the
judge could certainly have asked for that information if she thought it was
relevant.
The second charge that the court relied too much on this single piece of information, is also just false. The FBI had been interested in Carter Page (the subject of the warrant) since 2013 because of his contacts with the Russians. Knowledge of other reasons for the application are conveniently confidential, but experts report that it’s inconceivable that the court relied solely on the Steele dossier: The processes for applying for and obtaining a warrant is just too complex. Furthermore, as Dianne Feinstein, Democratic member of the committee has noted,
“Not a single revelation in the Steele dossier has been refuted.” [In addition,]
[n]ot only is the memo alleging federal law enforcement misused his dossier, but it’s suggesting the source behind the dossier was a dishonest and untrustworthy partner.
This is attacking Steele’s credibility. He is generally regarded as a boy scout and a high-quality intelligence officer, and he had worked with American authorities before. Washington Post comments by Aaron Blake
The Memo: A “Nothingburger”?
The Nunes memo is hardly the “bombshell” it has been purported to be. There is no new information. Even without our access to the confidential information available to Nunes, it’s clear that the memo’s arguments are virtually baseless. So why was the memo published?
Next: Why was the
memo published and what harm has it done to our democracy?
