The Problems With FISA, Secrecy, and Automatically Classified Information
We need to talk about national security secrecy. Right now, there are two memos on everyone’s mind, each with its own version of reality. But the memos are just one piece. How the memos came to be—and why they continue to roil the waters in Congress—is more important.
On January 19, staff for Representative Devin Nunes (R-CA) wrote a classified memo alleging that the FBI and DOJ committed surveillance abuses in its applications for and renewal of a surveillance order against former Trump administration advisor Carter Page. Allegedly, the FBI and DOJ’s surveillance application included biased, politically-funded information.
The House Permanent Select Committee on Intelligence, on which Rep. Nunes serves as chairman, later voted to release the memo. What the memo meant, however, depended on who was talking. Some Republican House members took the memo as fact, claiming it showed “abuse” and efforts to “undermine our country.” But Rep. Adam Schiff (D-CA)—who serves as Ranking Member on the House Permanent Select Committee on Intelligence, across from Nunes—called the memo “profoundly misleading” and, in an opinion for The Washington Post, said it “cherry-picks facts.”
Even the FBI entered the debate, slamming the memo and saying the agency had “grave concerns about material omissions of fact that fundamentally impact the memo's accuracy." And Assistant Attorney General Stephen Boyd of the DOJ said releasing the memo without review would be “extraordinarily reckless.” Finally, the president said the memo “totally vindicates” him from special counsel Robert Mueller’s investigation into his administration.
So a lawmaker made serious charges about surveillance abuses and corruption at the highest levels, and the rest of Congress and the public were ensnared in a guessing game: Could they trust Devin Nunes and what he says? Is the memo he wrote, and the allegations in it, just smoke or is there fire? Unfortunately, the information needed to evaluate his claims is hidden within multiple, nested layers of secrecy.
The secrecy starts with surveillance applications and secret court opinions, which are protected by classification that requires proper security clearance. Only a handful of lawmakers can read the materials, but even they can’t openly discuss them in public. They could write a report, but the FBI and Justice Department would ask to redact the report. After redactions, the report would be subject to a committee vote for release. If the report is cleared by committee, it ordinarily requires the president’s approval.
At any point in the process, this information could have been mislabeled, misidentified, embellished, or obscured, and we’d have almost no way of knowing.
It’s time to talk about FISA again, and the problems with its multi-layered secrecy regime.
We’re going to talk about a surveillance law that, when passed, installed secrecy both in a court system and in Congress, barring the public and their representatives from accessing important information. When that information is partially revealed, it’s near impossible for the public to trust it.
This will be a four part series, this is part one of four on the topic for today. I hope you enjoyed the blog and learned a few new facts, thank you for reading.