Thank Progressives for the Nunes Memo
By Asha Rangappa
House Republicans released a secret memo on Friday that alleges that F.B.I. and Justice Department officials misused their authority in conducting surveillance of a former Trump campaign adviser, Carter Page. It also claims the officials abused the Foreign Intelligence Surveillance Act process by citing dubious information in their application for a warrant to wiretap Mr. Page.
The move is nakedly partisan, and it certainly seems as if Republicans are trying to discredit the investigation into Russia’s 2016 election meddling. The Republicans, members of the House Intelligence Committee, refused to share the memo with their Senate counterparts. And they also rejected a bid to release a Democratic rebuttal at the same time as the memo.
The memo is a shame. But those on the left denouncing its release should realize that it was progressive and privacy advocates over the past several decades who laid the groundwork for the Nunes memo — not Republicans. That’s because the progressive narrative has focused on an assumption of bad faith on the part of the people who participate in the FISA process, not the process itself.
In 1978, Congress passed the Foreign Intelligence Surveillance Act after hearings exposed the F.B.I.’s egregious practice of illegally spying on civil rights leaders, black nationalists, Communists and Vietnam War protesters. The Supreme Court has left open the possibility of a narrow “foreign intelligence exception” to the warrant requirement for the executive branch. Nonetheless, FISA requires law enforcement agencies to obtain a warrant before conducting foreign intelligence surveillance on Americans. The act also created a special court where federal judges would vet petitions for surveillance warrants.
This makes the FISA process unique because it involves all three branches of government. For example, Congress has created its own rules to oversee electronic surveillance and judges approve or deny the requests for warrants. These are in addition to the internal oversight tools that the executive branch has. The checks and balances for FISA are quite robust compared to the ones that exist for other presidential national security powers like the authority to approve drone strikes.
I know firsthand that it’s difficult to get a FISA warrant. From 2002 to 2005, when I was an F.B.I. agent conducting counterintelligence investigations in New York, my FISA applications went through many layers of approval and required very strong evidence. It was clear to me that the process was set up to protect against abuses of power.
This process has been in place for 40 years and the Republican Party has never meaningfully objected to it — until now. It’s important to realize that it’s not the FISA system itself that Republicans believe is the problem, but the people involved. That’s a complaint they share with progressives.
In criticizing the FISA process, the left has not focused so much on fixing procedural loopholes that officials in the executive branch might exploit to maximize their legal authority. Progressives are not asking courts to raise the probable cause standard, or petitioning Congress to add more reporting requirements for the F.B.I. Instead, progressives complain that law enforcement officials, along with judges, will always act in bad faith and try to circumvent the law altogether — and that’s why the FISA process can’t be trusted.
The most popular example of this critique, particularly since the Sept. 11 attacks, centers on the number of FISA applications the court turns down, which is almost zero. In other words, if an F.B.I. agent submits a petition to the FISA court, it is extremely likely to be approved. Based on this, privacy advocates conclude that the court is effectively a rubber stamp, allowing the F.B.I. to get away with applications for surveillance that have no real legal basis.
In other words, the prevailing narrative of FISA hasn’t been just that it’s an imperfect system, but that those acting within it routinely lie to the court and that judges can’t be trusted to do their job.
The right has seized on the claim, made in the Nunes memo, that F.B.I. and Justice Department officials hoodwinked the FISA court with false evidence and that the federal judge approving it didn’t bother to dig deeper. In doing so, it has simply co-opted the left’s position on FISA: Don’t bother to have faith in the process, because the rule of law has no meaning even to those who are sworn to uphold it.
The assumption that everyone in government is a bad actor imperils our democracy. Following this logic, no set of rules or checks could ever produce a fair result, because no one can be trusted. That means any investigation, or its conclusions, are always illegitimate.
We are a nation founded on distrust of government power, and questioning that power is essential to promoting transparency and accountability. But those questions ought to leave room for the assumption — in the absence of specific evidence to the contrary — that most government servants are ultimately acting in good faith and within the constraints of the law.
This is particularly true in the FISA context. It was, after all, the F.B.I.’s rigid adherence to FISA protocol which prevented it from sharing intelligence among its own agents, leading to the failures of the Sept. 11th attacks.
And on that high rate of approval by the FISA court? When Timothy Edgar was a lawyer at the A.C.L.U., he was among those criticizing the FISA process as a “rubber stamp.” But when he became a senior official in the office of the director of national intelligence and witnessed the intensive vetting process firsthand, he retracted his characterization.
We don’t know whether the memo’s allegations of abuse can be verified. It’s worth noting, however, that Barack Obama’s final year in office saw the highest number of rejected and modified FISA applications in history. This suggests that FISA applications in 2016 received more scrutiny than ever before.
Unfortunately, because FISA’s critics — from the left, and now on the right — have primed the public to distrust the people involved, the damage has already been done.