Devin Nunes Releases Memo That Doesn't Show The Surveillance Abuses He Hypocritically 'Cares' About

from the owning-the-libs-by-pretending-to-do-his-job dept

House intelligence oversight leader Devin Nunes released his supposed bombshell Friday. The Nunes memo was supposed to contain info showing the FBI had engaged in a questionable, politically-motivated investigation of Trump staff. How this news was supposed to be shocking was anyone's guess. Anyone who has followed the FBI's activities since the days of J. Edgar Hoover already knows the FBI engages in questionable, politically-motivated investigations. The only new twist is the FISA court's involvement and the use of secretive surveillance powers to collect domestic communications.

The FBI responded by noting the memo [PDF] contained "material omissions of fact." What's contained in the memo likely provides rhetorical ammo to those who believe Trump and his advisors did nothing wrong during the run-up to the election. But it will only provide limited support. What's contained in the memo are accusations the FBI sought (and obtained) FISA warrants to surveill one-time Trump advisor Carter Page. The FBI -- according to the memo -- used the dubious Christopher Steele dossier to buttress its allegations. It apparently continued to do so even after it knew the Steele dossier had been paid for by the Democratic National Committee.

The memo notes this interception was not performed under Title VII, which covers the recently-renewed Section 702 collection powers. This surveillance was performed under Title I -- a more "traditional" FISA process in which the government seeks probable cause-based warrants from the FISA court, much like law enforcement officers seek warrants from magistrate judges.

The memo suggests the FBI should have dropped the investigation -- or at least given the FISA court heads up -- once it became apparent the Steele dossier was politically compromised. But the FBI continued to ask for renewals and these requests were approved by law enforcement officials Trump and most of the Republican party no longer care for. The list includes James Comey (fired), Andrew McCabe (resigned), Sally Yates (fired), and Rod Rosenstein (who Trump would apparently like to fire).

The memo also points out that Christopher Steele was "terminated" (as a source) by the FBI for disclosing his relationship with the agency to the press. Steele also apparently stated he was very interested in preventing Trump from winning the national election. There's also mention of a conflict of interest: a deputy attorney general who worked with those pursuing an investigation of Carter Page was married to a woman who worked for Fusion GPS, the research group paid by the DNC to dig up dirt on Trump.

This all seems very damning at first blush. The Nunes memo is the party's attempt to derail the FBI's ongoing investigation of the Trump campaign and its involvement with Russian meddling in the presidential election. But there's a lot missing from the memo. The facts are cherry-picked to present a very one-sided view of the situation.

The rebuttal letter [PDF] from Democratic legislators is similarly one-sided. But adding both together, you can almost assemble a complete picture of the FBI's actions. The rebuttal points out Christopher Steele had no idea who was funding his research beyond Fusion GPS. It also points out the dirt-digging mission was originally commissioned by the Washington Free Beacon, a right-leaning DC press entity.

It also points out something about the paperwork needed to request a FISA warrant. To secure a renewal, the FBI would have to show it had obtained evidence of value with the previous warrant. If it can't, it's unlikely the renewal request would be approved by FBI directors and/or US attorneys general. The multiple renewals suggest the FBI had actually obtained enough evidence of Carter Page's illicit dealings with the Russians to sustain an ongoing investigation.

Beyond that, there's the fact that Devin Nunes -- despite spending days threatening to release this "damning" memo -- never bothered to view the original documents underlying his assertions of FBI bias. In an interview with Fox News after the memo's release, Nunes admitted he had not read the FBI's warrant applications. So, the assertions are being made with very limited info. Nunes apparently heard the Steele dossier was involved and that was all he needed to compile a list of reasons to fire current Trump nemesis Robert Mueller... disguised as a complaint about improper surveillance.

It's this complaint about abuse of surveillance powers that really chafes. Nunes throttled attempts at Section 702 reform last month and now wants to express his concerns that the FBI and FISA court may not be protecting Americans quite as well as they should. Marcy Wheeler has a long, righteously angry piece at Huffington Post detailing the rank hypocrisy of Nunes' self-serving memo.

Because Nunes and others ― up to and including House Speaker Paul Ryan ― claimed to be motivated by a concern about civil liberties, it was generally assumed the privacy community would join the clamor. But those of us who’ve been through several surveillance fights with these posers know the reality is far more complex. Ultimately, two principles are at issue: the rule of law and privacy. In both instances, Nunes and Ryan are on the wrong side of the issue.


A mere three weeks ago, Nunes and Ryan were happy to have Americans surveilled with no evidence whatsoever of wrongdoing. Back then, Ryan backed suspicionless, warrantless searches of Americans as a necessary trade off. “This [bill] strikes the balance that we must have between honoring and protecting privacy rights of U.S. citizens, honoring civil liberties, and making sure that we have the tools we need in this day and age of 21st century terrorism to keep our people safe.”

Today, however, when a former Trump campaign adviser is at issue, Nunes and Ryan have discovered the due process they personally refused for so many Americans.

This isn't Devin Nunes' first ride on the surveillance hypocrisy merry-go-round. Just like Dianne Feinstein on the other side of the political aisle, Nunes doesn't give two shits about domestic surveillance unless it's being used against him and his. Somehow, Nunes believes libertarians and anti-surveillance progressives will join him in his excoriation of the FBI and its alleged abuse of domestic surveillance powers. But he's not going to win any converts. The hill Nunes has chosen to die on with this memo is this: the law should protect the powerful from questionable snooping. It has nothing to say about the marginalized groups targeted most frequently by security agencies and law enforcement.

Every single privacy activist I know cares about privacy in significant part to ensure the rule of law and to prevent the arbitrary exercise of justice to focus just on select groups like Muslims or Chinese-Americans, rather than those who pose the greatest risk to society, like people allegedly doing Russia’s secret bidding. Yet the actions of Ryan and Nunes reverse that, using a sham concern for civil liberties as a way to prevent themselves, their associates, and the president from being subject to the rule of law like the rest of us would be.

Moving beyond that, there's the damage done to the FBI by the president and the party that follows him. Trump proclaimed himself a "law and order" president and stated he would always have law enforcement's back. But he's spent most of his time in the White House battling the FBI and DOJ, hoping to make investigations into his campaign's questionable relationship with Russia vanish. He wasted no time alienating the FBI simply because its former director wouldn't give him a pledge of loyalty.

Now, with Nunes releasing a completely unredacted memo, the FBI will suffer even more harm. The agency now knows its sources might be exposed for purely political reasons. Very few people will work with the FBI knowing their names might be splashed all over documents released voluntarily by intelligence oversight committee members. This administration has made it clear no one is safe from public disclosure, even as it does everything it can to shut down unauthorized leaks. Again, the hypocrisy is undeniable. While every administration desires to control the narrative, few have been this transparent about their motives.

There should be no rush to lionize the FBI and the officials Trump has discarded because of perceived lack of loyalty. The FBI is no better than it was before Trump took office. It's no champion of civil liberties and it is in the wrong position to pretend to speak truth to power simply by continuing to exist. Abuse of surveillance powers is a very real thing and the FBI remains one of the worst offenders. The memo is Nunes photoshopping a bunch of smoke over a small, ordinary flame and claiming it's photographic evidence of the FBI's antipathy towards Trump. If abuse occurred under Nunes' watch, then it should be called out. But laying bare the details of an ongoing investigation just to score political points is a terrible abuse of Nunes' oversight powers.

Filed Under: devin nunes, fisa, fisa court, fisa warrant, russia, russia investigation, surveillance

Reader Comments

The First Word

Two key points from the Nunes memo

In a stunning case of "own goal", the very end of the memo points out that the FBI had an investigation going long before the Steele memo (which isn't a memo at all, but a series of reports) came along. There are two reasons that the FBI paid attention to the Steele memo: (1) Steele has a reputation, a very good one, along with lots of experience and a sizable network of contacts (2) the contents of Steele documents matched things THEY ALREADY KNEW TO BE TRUE.

The second point bears some explanation, because most of you don't have jobs that require the assessment of raw intelligence that comes from multiple people who may be omitting things or fabricating things or deliberately embedding some truth in a web of lies. The Steele memo is just that kind of raw intelligence, which is why -- if you take the time to read it -- you'll notice that Steele himself points out the possible presence of these issues.

But when you get your hands on raw intelligence, and it gives you -- let's say -- 100 facts that you can check, and you find that 82 of them are true, 16 are unverifiable, and 2 are false -- then you have good reason to think that at least some of those 16 are worth further investigation because they may well turn out to be true. That's why you get a warrant: first, to re-re-re-verify the 82 and second, to find out about those 16. That's your JOB.

Then of course you have to make some progress. Because if you don't, then you're not going to get multiple judges to renew your warrant multiple times. You might still not be able to check all 16 of those outstanding items, but if you can check 4 and make progress on 7, then you're getting there and it's reasonable for a judge to grant more time. If you can't check any of them, then maybe you're barking up the wrong tree and the warrant you seek isn't going to help anyway.

One more thing. This isn't an edge case. Anyone who goes out of their way to pal around with intelligence agents from another country, even a friendly one, should expect that they're going to get surveilled: by us, by them, and by third parties who are of course interested in such things for reasons of their own. And anyone who openly brags about it should REALLY expect scrutiny. I have no great love for the FBI, but in this case, they did exactly what any sensible organization should do: start watching people who are heavily interacting with known agents of a hostile foreign power.
—Anonymous Coward

Subscribe: RSS

View by: Time | Thread

  1. icon
    Toom1275 (profile), 7 Feb 2018 @ 8:54am

    Re: Re: Re: "Comment Held for Moderation...

    No he won't. You underestimate his cognitive dissonance.

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Techdirt Gear
Shop Now: Copying Is Not Theft
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Report this ad  |  Hide Techdirt ads
Recent Stories
Report this ad  |  Hide Techdirt ads


Email This

This feature is only available to registered users. Register or sign in to use it.