For the last three weeks, privacy advocates have been buffeted by two political whirlwinds. First, the reauthorization of the FISA Amendments Act two weeks ago, authored by House Intelligence Committee Chairman Devin Nunes. And then today, the release of a partisan memo, authored by Nunes’ staffers, purporting to show FBI and Department of Justice abuses of the individual Foreign Intelligence Surveillance Act application process.
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.
The FISA Amendments Reauthorization Act extended a key part of FISA, called Section 702, that lets the government ask domestic telecommunications and tech providers for help spying on foreigners overseas. But that word “target” is misleading, because under the program, the government obtains the American side of any conversation with a targeted individual. The FBI can obtain that information in raw form and routinely queries the data when it gets leads to find out if Americans have been speaking to suspicious foreigners. That amounts to warrantless access of Americans’ communications, and exposes certain groups, like Chinese-Americans and Muslims, to far more scrutiny than others.
Also under Section 702, the government obtains certain entirely domestic communications that have obscured their location. While it has to purge most of those communications, the NSA can keep any that it shows are evidence of eight enumerated crimes. Again, this is warrantless surveillance of Americans, done in the guise of foreign intelligence collection.
A mere three weeks ago, Nunes and Ryan were happy to have Americans surveilled with no evidence whatsoever of wrong-doing.
During the 702 reauthorization debate, reformers like Sens. Ron Wyden (D-Ore.) and Rand Paul (R-Ky.), and Reps. Justin Amash (R-Mich.) and Zoe Lofgren (D-Calif.), tried to add protections in these instances, most notably by requiring a warrant before the FBI searches for communications involving Americans. The law authored by Nunes, however, only provides such protection to people for whom the FBI already has probable cause that they are committing a crime. Nunes’ law flips the Fourth Amendment on its head, providing protection only to criminal suspects and not for those against whom the FBI has no evidence of wrongdoing.
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. The Nunes memo purports to show that an individualized FISA application against Carter Page did not adequately inform the FISA court about the political source of one piece of evidence among others. The memo argues the FBI did not adequately reveal “the political origins of the Steele dossier,” intelligence reporting paid for by the Democratic Party.
The application instead presented Steele as someone (the memo admits) who was a “longtime FBI source” with a “past record of credible reporting.” But even on that key issue, the memo is unclear whether DOJ knew precisely who was paying for Steele’s work. Indeed, it makes no mention that Republican billionaire Paul Singer was the first political actor to pay Fusion GPS, the firm that hired Steele, for dirt on Trump, though Singer himself did not fund any of Steele’s work. In other words, on the central question of whether the FBI could have attributed Fusion’s intelligence to Hillary Clinton and the Democrats or to someone else, the memo doesn’t make its case.
Now, the role of consultants like Steele in judicial proceedings is a matter of grave concern. Consultants with an inadequate grasp of the Arabic language or Islamic faith have long been used by DOJ as witnesses against terrorism defendants, and defense attorneys have suspected consultants ― perhaps the very same ones ― provided intelligence used in FISA applications, just as Steele provided intelligence for the Page application. More recently, consultants assessing crime patterns and recidivism rates have been shown to rely on biased algorithms.
Yet none of the people pushing this Nunes memo have ever uttered a peep about due process concerns posed by outright incompetent consultants in the past. Here, however, they’re wailing that a consultant they admit has been reliable in the past got paid differently than in the past and that wasn’t fully briefed to the court.
The way to deal with both of these issues is to conduct actual oversight of the general problem, not extend protections just to one man like Page.
The sudden interest in problems Nunes and Ryan showed no interest in just weeks ago is all the more telling, given several details about this memo.
First, as the memo lays out, starting in October 2016 the FBI obtained and then renewed a FISA warrant against Page four times. That means over the span of at least nine months, the FBI demonstrated that a wiretap of Page demonstrated useful foreign intelligence, and FISA judges agreed with that assessment over and over. The memo either doesn’t mention or obscures an earlier FISA warrant, obtained in 2014 during a period when Page was being actively recruited by Russian spies who were either expelled or imprisoned. Effectively, then, the GOP memo admits that something about Page, something well beyond the Steele dossier, raised real concerns about whether he was spying for Russia. And the FISA court agreed that it was a real concern.
The memo also complains that the Page application mentions George Papadopoulos, another former Trump foreign policy aide who in October pleaded guilty to lying to the FBI about his contacts with people working on behalf of Russia. It reads: “The Page FISA application also mentions information regarding fellow Trump campaign advisor George Papadopoulos, but there is no evidence of any cooperation or conspiracy between Page and Papadopoulos.” That’s not entirely true. As the committee itself learned in testimony, Page was copied on at least one of the emails Papadopoulos sent to the campaign detailing his own activities.
Moreover, the memo is silent about whether the Papadopoulos reference in the application served to do anything more than inform the court that, in response to a tip about Papadopoulos’ actions, the FBI opened a counterintelligence investigation into whether Russians were attempting to compromise Trump via his foreign policy advisers. Effectively, this amounts to saying that because the FBI was investigating Page in the context of other concerns that Russians were trying to infiltrate the Trump campaign (concerns Papadopoulos’ guilty plea validate), it should be deemed an abuse. As with 702 reauthorization, they’re trying to extend protections just to those against whom there is credible evidence of wrong-doing.
Finally, there’s the larger conduct. This memo was written for a guy, Devin Nunes, who was a Trump transition official. That transition period has already netted one guilty plea ― that of former Trump National Security Adviser Michael Flynn, for lying to the FBI. Multiple reports make clear that Trump permitted the release of this memo explicitly as a way to delegitimize a legally constituted investigation into him, his family, and associates like Nunes. In the same way that Nunes and Ryan are pushing for further review only for a man who, abundant other evidence suggests, fostered legitimate suspicion, they’re also saying that they only care to scrutinize FBI and DOJ actions if they themselves might be subject to them.
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.
If we’re going to have this secret surveillance ― and Nunes and Ryan insist we need it ― the key to protecting Americans is drafting the law to provide protections and ensuring those standards are met. Section 702, as Nunes and Ryan reauthorized it, fails that test, because it permits the warrantless access of completely innocent Americans’ communications. And for all its bluster, the Nunes memo doesn’t tell us critical details we need to assess whether what happened to Page was improper specifically, or simply indicative of known concerns about outside consultants that Nunes and Ryan have long ignored (and continue to ignore with all other Americans). By all means let’s examine the role of consultants in FBI investigations. By all means let’s scrutinize whether the FISA process works as well as the DOJ claims.
But let’s do that for all Americans, and not just those about whom the FBI has real reason to worry.
Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog and is the author of “Anatomy of Deceit.” Follow her on Twitter at @emptywheel.