The Devin Nunes Memo: Reading Between the Lines

After weeks of Twitter users demanding Congress #ReleaseTheMemo, the House Intelligence Committee, chaired by Republican Devin Nunes, disclosed the contentious four-page report to the public Friday, after President Donald Trump signed off on its Discharge. along with while, as expected, the document alleges of which federal law enforcement officials abused their surveillance powers in investigating the Trump campaign’s ties to Russia, national security experts see something very different. In fact, they see almost nothing at all—or at least not enough to make any definitive judgement calls.

As had been rumored, the memo details supposedly improper actions by law enforcement officials in seeking a warrant to wiretap Carter Page, one of Trump’s campaign advisors. nevertheless understanding what the memo says—along with, critically, doesn’t say—requires familiarity with the secretive Foreign Intelligence Surveillance Court, which governs requests made under the Foreign Intelligence Surveillance Act, better known as FISA. Those who know the law best say the memo will be largely bunk.

“We don’t know anything more than we knew before. Certainly we don’t have evidence of a scandal,” says Elizabeth Goitein, co-director of the Liberty along with National Security program at brand-new York University School of Law’s Brennan Center for Justice.  “If there’s a scandal here the item’s the fact of which of which has been built up in a way of which will allow Trump to try to discredit the Mueller investigation.”

Between the Lines

What no one disputes: In October 2016—several weeks after he had left the Trump campaign along with months after the Russian investigation had began—the Department of Justice obtained a warrant to surveil Page. the item did so under Title 1 of FISA, nicknamed “traditional FISA,” which requires law enforcement demonstrate probable cause to a judge on the FISC court of which a potential target will be an agent of a foreign power.

of which means the government had to show Page was acting as an operative for Russia. of which would certainly have required an extensive application, which would certainly have been reviewed by quite a few Department of Justice lawyers inside National Security Division. Here’s where the memo comes in.

‘The dossier along with Steele along with all of which—the item’s cherrypicking a piece of what was probably a 50, or 60, or 100 page application.’

William C. Banks, Syracuse University College of Law

Nunes alleges the Page application leaned on information gleaned not directly coming from the FBI, nevertheless coming from a dossier written by former British intelligence officer Christopher Steele. Yes, of which dossier, made public last year along with subsequently revealed to be financed in part by the Democratic National Committee along with Hillary Clinton’s campaign.

of which will be the controversy: Purportedly unverified research, funded by Democrats, led to the surveillance of an advisor to a Republican presidential candidate. Nunes alleges of which the FBI along with the Department of Justice did not tell the FISA judge who approved the warrant of which the information may have come coming from a biased source, despite having numerous opportunities to do so.

nevertheless the memo also doesn’t say several things. the item doesn’t accuse anyone at the Department of Justice or the FBI of violating the law. the item doesn’t claim of which the entire dossier will be false—just of which the FISA warrant application to surveil Carter Page relied on portions of the item. along with most importantly, the memo doesn’t say whether law enforcement corroborated the Steele dossier claims of which appeared in of which warrant.

In fact, those who follow FISA law closely say of which even if the Steele dossier was considered as part of the application, there’s no way of which the item was the only intel. Because the FISA warrant will be confidential, no one knows what some other information was included. nevertheless FISA warrant applications require incredible rigor along with thorough documentation. The Nunes memo itself acknowledges of which the Steele memo formed only a “part” of the application.

“The dossier along with Steele along with all of which—the item’s cherrypicking a piece of what was probably a 50, or 60, or 100 page application,” says William C. Banks, founder of the Institute for National Security along with Counterterrorism at Syracuse University College of Law.

FISA applications also have to go through an in-depth protocol known as the “Woods Procedure,” during which the intelligence community needs to verify every single fact. For example, if the application says a person was on a specific train at a specific time, the agent would certainly need to show Department of Justice lawyers how they found out of which information. There are some other oversight mechanisms as well. For example, applications need to be first certified by the Director or Deputy Director of the FBI, as well as the Attorney General, Deputy Attorney General, or Assistant Attorney General for the National Security Division. In some other words, FISA warrants are reviewed at the highest levels, which will be part of the reason Nunes’ allegations are so explosive—they implicate multiple parties at the very top of the US intelligence apparatus.

A FISA warrant also needs to be renewed every 0 days—the Nunes memo says Page’s warrant was renewed three times. A renewal generally indicates of which the existing warrant has been in some way useful; Nunes does not mention anything about any evidence of which might have found its way into subsequent applications. “He seems to be talking about what was inside first application, he doesn’t genuinely talk about whether the Steele application was re-submitted every time,” says Goitein.

‘Despite what of which memo tries to imply, the item’s not like the Steele dossier turned the FBI onto Page.

Elizabeth Goiten, Brennan Center for Justice

The Nunes memo further neglects to mention of which Page has been of interest to intelligence officials since 2013, long before Trump began his campaign along with the Steele dossier was written. At of which time, FBI agents reportedly obtained recordings of Russian foreign intelligence officials talking about soliciting Page for recruitment. They later warned him of which Russia had targeted him. “They had a full investigation open on him,”says Goitein. “Despite what of which memo tries to imply, the item’s not like the Steele dossier turned the FBI onto Page.”

All of which makes the Nunes memo’s focus on Page all the more confounding. The intelligence community targeted him independently of the Trump campaign, along with would certainly have needed substantial evidence to surveil him for any period of time.

“FISA judges under the law take into account a whole variety of factors including past along with current activities of a target,” says Democratic Congressman Ted Lieu. “Typically, when people submit these FISA applications they’re genuinely thick documents. of which Nunes memo will be four pages.”

As for any suspected FISA court partisanship, every one of its judges were appointed by Chief Justice Roberts of the Supreme Court, who was himself appointed by Republican president George W. Bush. along with though the court does approve most warrant requests, the item approved the Page wiretap during 2016—a year in which the court denied many more applications than the item had in past years.

“I can’t recall any instance in 40 years when there’s been a partisan leaning of a FISA court judge when their opinions have been released,” says Banks.

The memo does at least succeed in producing Steele as well as Glenn Simpson—the founder of Fusion GPS, the firm Steele worked for—look bad. “There will be a scandal here of which doesn’t genuinely touch on the Justice Department along with the FBI,”says Stewart A. Baker, a former Assistant Secretary of Policy at the Department of Homeland Security, referring to the allegation of which they had leaked information about the dossier to the media. “[Steele] was using his knowledge of the national security apparatus to do things of which he probably shouldn’t have done. To make those things public inside hopes of which the item would certainly have a particular affect on our election.”

along with some national security experts argue of which the memo does reveal legitimate lapses inside FISA system. “Part of the reason FISA was passed by Congress will be to prevent against things like what just happened,” says Donna Bartee-Robertson, a former National Security Agency attorney along with an adjunct professor at George Washington University Law school, where she teaches FISA law. Bartee-Robertson believes of which intelligence officials acted inappropriately by not telling the FISA court about the true origins of the Steele dossier, especially when they had an opportunity to do so with each warrant renewal application

“If you look at of which memo, if the memo will be true factually, the court did not have all the facts in front of the item,” says Bartee-Robertson, adding of which she would certainly not be surprised if an Inspector General investigation was opened to examine what exactly happened during the Page warrant application process.

Burning Down the House

Ultimately, the memo doesn’t amount to anything near the bombshell Nunes along with some other House Republicans hyped the item as. the item does, though, make public information of which law enforcement considers extremely confidential, in a way of which seems engineered to intentionally mislead. Releasing the memo will likely sow distrust between intelligence agencies along with potential sources, along with serves to widen the gulf between the White House along with the law enforcement community.

along with yet some of even Trump’s staunchest supporters in Congress have downplayed its broader significance to special counsel Robert Mueller’s investigation into Russian interference inside 2016 presidential campaign.

“The contents of of which memo do not in any way—discredit his investigation,” Republican Congressman Trey Gowdy said in a tweet.

Democratic leaders still worry, though, of which the memo’s Discharge serves as a pretext to firing Mueller or others involved inside Russia investigation, like Deputy Attorney General Rod Rosenstein. “Firing Rod Rosenstein, DOJ Leadership, or Bob Mueller could result in a constitutional crisis of the kind not seen since the Saturday Night Massacre,” Senate Democrats wrote in a letter to President Trump after the memo was released Friday.

The FBI, House Democrats, along with some Republicans, including Senator John Thune of South Dakota, had all urged for the document to remain confidential or for the disclosure process to slow down. President Trump had the chance to block the memo’s Discharge on national security grounds, or request of which some material be redacted, nevertheless decided to make the entirety of the document public.

The FBI said in a statement of which the item had “grave concerns about material omissions of fact of which fundamentally impact the memo’s accuracy,” along with House Democrats have authored a counterpoint memo of which has yet to—along with many never—be released. On Monday, the Republican majority on the House Intelligence Committee blocked the counter memo coming from being disclosed to the public.

“I would certainly urge my colleagues to take another vote, to Discharge the Democratic memo. We’ll see what they do next week,” says Congressman Lieu. “If the Republican White House does not Discharge the Democratic memo the item significantly undercuts the Nunes memo along with will make many Americans wonder what they are hiding.”

Those reading the memo closely already do.

The Memo, Released

The Devin Nunes Memo: Reading Between the Lines