The politically charged memo from the Republican majority on the House Permanent Select Committee on Intelligence (HPSCI) is now public. After much speculation, we’ve discovered that government intelligence gathering operations require strong congressional oversight. It’s also hard to ignore the smell of rank politics.
Accountability has been one of the greatest concerns about Foreign Intelligence Surveillance Act (FISA) programs since the law’s inception. The government’s success in securing FISA warrants isn’t exactly comforting. In 2016, the Foreign Intelligence Surveillance Court (FISC) rejected more FISA applications in one year (34) than it did from 1979-2015 (17). Even so, those rejections accounted for less than three percent of all FISA warrant applications .
We should have already learned our lesson in 2002 when the FISC rebuked Attorney General John Ashcroft’s proposed intelligence gathering procedures. Ashcroft’s scheme would have given criminal prosecutors regular access to information gathered from counterintelligence searches and wiretaps without any demonstration of probable cause that a crime had been committed or was imminent.
The FISC opinion  outlined 75 instances where the federal government included misstatements or omissions of material fact in FISA warrant applications. The opinion contained much more damning information than anything revealed in the recent HPSCI majority memo.
Congress ought to do its job, hold the executive branch accountable and hopefully protect our civil liberties in the process.
But we should have reached that conclusion well before chatter began over this HPSCI memo. Clearly there’s more here than another call for FISA accountability.
The memo leaves a not-so-subtle breadcrumb trail suggesting that the Department of Justice (DOJ) is a cesspool of anti-Trump bias and Deputy Attorney General Rod Rosenstein is part of it. The memo accuses Rosenstein and other senior DOJ officials of failing to disclose the partisan nature of Christopher Steele’s opposition research dossier on Donald Trump. According to the memo, the Steele dossier served as the basis for a FISA warrant to gather information on Trump aide Carter Page.
The memo points to the testimony of FBI Deputy Director Andrew McCabe for the conclusion that “no surveillance warrant would have been sought from the FISC without the Steele dossier information.” The subsequent inference is that the investigation of Trump’s campaign wouldn’t have taken off but for the surveillance of Page.
But the memo leaves that connection for the reader to make. It is silent as to the tie between the Page surveillance and Rosenstein’s appointment of Special Counsel Robert Mueller. The Republican HPSCI majority goes so far as to explicitly deny that the memo has anything to do with Mueller’s investigation. Explanatory documents connected to the memo note , “The Memo is NOT intended to undermine the Special Counsel.” Obviously, Rosenstein isn’t the Special Counsel, but he is the one who appointed him.
President Donald Trump, who authorized the memo’s release, doesn’t seem all that concerned with HPSCI Republicans’ stated intent either. He isn’t leaving any inference to chance. The day after the memo’s release he tweeted :
This memo totally vindicates “Trump” in probe. But the Russian Witch Hunt goes on and on. Their [sic] was no Collusion and there was no Obstruction (the word now used because, after one year of looking endlessly and finding NOTHING, collusion is dead). This is an American disgrace!
We should welcome strong, consistent oversight of our government’s activities under FISA. If that’s the real argument of this memo, then consider me in full agreement. Otherwise, it’s hard to ignore the smell of politics. Eroding Rosenstein’s credibility and undermining the basis for Mueller’s investigation is a far more plausible justification for the memo’s release than anything being spun by the HPSCI majority.
- “all FISA warrant applications”: https://epic.org/privacy/surveillance/fisa/stats/default.html#footnote26
- “opinion”: http://www.washingtonpost.com/wp-srv/onpolitics/transcripts/fisa_opinion.pdf
- “note”: https://intelligence.house.gov/uploadedfiles/hpsci_memo_key_points.pdf
- “tweeted”: https://twitter.com/realDonaldTrump/status/959798743842349056