The Man From Rule X: The House Intelligence Chair Invokes Long-Overdue Power To Override Agencies On A Public Release

download-2Below is my column in the Hill newspaper on the move by the House Intelligence Committee to release the four-page memo on alleged FBI abuse.  The FBI has objected that “omissions” have made the memo “inaccurate.”  However, that does not sound like a classification defense. Indeed, a long-standing objection is that the intelligence agencies classify material that is embarrassing or damaging to the agency politically.  Since the memo reportedly deals with the use of the dossier for a FISA warrant, it would seem possible to draft a memo that did not compromise methods and sources.  We will soon likely know, according to reports that President Donald Trump has reviewed the document and decided to release it.  He is ultimately the final word on classification status in the Executive Branch.

Here is the column:

 

“Your heart will pound…your pulse will throb…at the dreadful presence of the weirdest visitor the world ever had.” Yes, for those of us who are vintage movie buffs, that was the famous lead into the 1951 cult classic, “Man From Planet X.”

The same promo could be used for a new production aptly named “Man From Rule X.” The man is House Intelligence Committee Chairman Devin Nunes (R-Calif.), and he has invoked a never before used rule to force the disclosure of his classified four-page memo on alleged abuses by the FBI.

The appearance of the “Man from Rule X” has produced the same images of terror in the eyes of Democrats who object that the forced release, over objections from the FBI, would destroy national security and effectively end life as we know it. Conversely, the GOP appears blissfully eager to strip away classification markings to deliver a blow against Trump critics.

What is interesting is that most people have no idea what is in the document, but everyone is on the edges of their seats with its impending release. Many seem frozen like the character John Lawrence in the 1951 film, in which he said, “If I only were not so helpless before the voiceless threat of the unknown.”

The unknown, in today’s production, is Rule X and, specifically, Subsection 11(g), dealing with the House Permanent Select Committee on Intelligence. It is a rule that has, until now, only been discussed in the abstract by fringe elements in politics and the law. What if one of the intelligence committees actually engaged in oversight and refused to bury embarrassing information classified by the agencies?

Welcome to the weird world of Rule X. Subsection 11(g) of Rule X was created to give the intelligence committee credibility, or at least the appearance of credibility. Agencies have long been notorious for over-classification of information and the use of classification authority to shield officials from public exposure or criticism. Since this committee has oversight over intelligence agencies, the rule technically allows the members to vote to release classified information when the majority determines “that the public interest would be served by such disclosure.”

With such a vote, the president is notified of the action and is given five days to determine if the material should be released to the public. If a president objects, the committee can vote to refer the matter to the entire House of Representatives for a closed session and vote on the release of the information. However, past threats of actually using the rule have been treated as laughable by members of Congress and agencies alike. As the character Professor Elliot said in the movie, the very “statement has the tinge of fantasy.”

Indeed, the rule has come to mean the very opposite of its language. Subsection 11(g) has never been used in countless conflicts with intelligence agencies which simply refused to declassify information. That lack of use of has reaffirmed the widely held view of congressional committees being “captured” by the agencies they are supposed to oversee. The intelligence committees have a steady revolving door of staff between Congress and the agencies. Moreover, members often use closed sessions to remove embarrassing conflicts or scandals from the public view.

This is why the vote on Jan. 18 to activate Subsection 11(g) was accompanied by a virtual “Wilhelm scream” heard from Capitol Hill to Langley to Quantico. The “Man From Rule X” may be a somewhat flawed character, as to his motivations in taking this step. However, regardless of the content of the memo, the act of defiance under this rule has been too long in coming.

Moreover, the subject is precisely the area where civil libertarians have long asked for action: the Foreign Intelligence Surveillance Act. Its “secret court” was structured to circumvent the Fourth Amendment’s probable cause standard for searches and seizures (it was replaced by probable cause to believe someone might be a “foreign agent,” which is broadly defined). The ease of getting FISA orders has resulted in a record of tens of thousands of applications with only a couple denials in the history of the act.

Not surprisingly, while FISA was supposed to be a narrow exception to conventional warrants, the Justice Department has used it as an easy alternative to conventional court. Not only is the standard almost impossible not to satisfy but, unlike standard warrants, the surveillance — even abusive or groundless searches — can be kept secret forever.

Now, some members of Congress believe that the FBI abused FISA to launch a national security investigation with little real evidence. That is exactly what civil libertarians have argued for decades with no response from Congress. The target this time was a close associate of then-candidate Donald Trump.

Some media reports indicate that the memo shows the FBI knowingly used a dossier funded by the Clinton campaign and the Democratic National Committee to secure the FISA order. The allegation is that the FBI did not reveal to the court the questionable source of the dossier or the lack of verification of its information. Ironically, it is not clear if this would have really mattered, since Congress set the standard for FISA so low. Yet, civil libertarians are not complaining.

The “Man From Rule X” is finally challenging the intelligence agencies and asserting the right of Congress to release information in the public interest over agency objections. Ideally, with this vote, the use of the rule will no longer be viewed as sheer fantasy and Congress will engage in serious oversight of these agencies, including the greater disclosure of information in the public interest.

So the importance of this conflict may prove far greater than the partisan maneuverings in Congress over the Russian investigation. The use of Rule X to actually disclose information could be a gamechanger in the relationship to federal agencies in this area, or as the character Dr. Mears said in the old cult film, “a man who controls this formula controls the industry of the world.”

Well, perhaps not control of the world, but some real oversight of intelligence agencies would be worth watching.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

128 thoughts on “The Man From Rule X: The House Intelligence Chair Invokes Long-Overdue Power To Override Agencies On A Public Release

  1. I know this is written after the memo was released, but I would still argue that the memo should have been released without objection from the FBI or Department of Justice (sic).

    The whole concept of the FISA and its separate court system is both contemptible and un-American. I question the ability of members of Congress to read when it comes to our Constitution.

    There are ways to amend the Constitution. Yet when it comes to something that’s really difficult to do, Congress wimps out and either:

    1. Passes a general law that is directly contradictory to what is said in the Constitution, or
    2. Allows one of the alphabet-soup agencies within the Executive Branch to just write their own rule to go around the Constitution’s limitations.

    Additionally, the courts have allowed Congress to change these limitations “just because,” by establishing a principle that if they pass a law that is in direct contradiction to an earlier law, the newer one will be the accepted version, under the principle that they knew of the previous law when they wrote the exemption to it. This goes against the principle of primacy, where they have to follow the old law to either properly amend or repeal the old law.

    Instead, the Constitution has now come to where any part of it can be changed by a simple popular vote in both houses of Congress and the signature of the President.

    I know I veered off subject here, but this just seemed to follow from the original article.

  2. It’s about times elected officials start reigning in appointed officials. Too many laws are being created by bureaucrats and not through the legislative process.

  3. we have seen nothing like this since the Church committee. it’s long overdue. the FBI was manipulated and abused the fisa court procedures to impinge on civil liberties. where all civil libertarians to defend our democratic elections from improper police interference? press on!

    • Well, the ones in the Main Stream Media have mostly signed Memorandums of Understanding with the DNC, and are therefore contractually prevented from investigating anything which exposes Democrats and their cronies.

      🙂

      Squeeky Fromm
      Girl Reporter

  4. Jonathan Turley: “…some real oversight of intelligence agencies would be worth watching.”

    Yes. And there’s a lot that hasn’t yet been revealed.

  5. * Andrew McCabe confirmed that no FISA warrant would have been sought from the FISA Court without the Steele dossier information.

    * The four FISA surveillance applications were signed by, in various combinations, James Comey, Andrew McCabe, Sally Yates, Dana Boente, and Rod Rosenstein.

    * The FBI authorized payments to Steele for work on the dossier. The FBI terminated its agreement with Steele in late October when it learned, by reading an article in Mother Jones, that Steele was talking to the media.

    * The political origins of the Steele dossier were known to senior DOJ and FBI officials, but excluded from the FISA applications.

    * DOJ official Bruce Ohr met with Steele beginning in the summer of 2016 and relayed to DOJ information about Steele’s bias. Steele told Ohr that he, Steele, was desperate that Donald Trump not get elected president and was passionate about him not becoming president.

    From http://www.washingtonexaminer.com/house-intel-memo-released-what-it-says/article/2647937 Complete memo there.

  6. The American Founders promoted “education” so that voters would be informed, competent and capable. The American People have suffered the militant lazy, greedy, striking, thug teachers unions and obtained educations. The People are tanned, rested and ready to rule. The People MUST be provided ALL information, excluding sources and methods, related to the conduct of governance in order to vote and exercise the Dominion of the People over the United States of America.

  7. It appears that some FBI officials don’t seem to realize that real criminals apparently don’t tell their own family members what they do for a living. So when the FBI leaks insider information to the unknowing family member, based on that flawed assumption, they are illegally leaking information (felony crime) to a private citizen with full Bill of Rights protections. Those citizens never learned it from any other source. FBI agents apparently do this to illegally game the Justice System by essentially fabricating probable cause.

    In those cases, the sloppy agent not only violates the law but destroys their entire case against any real criminals – if there ever were any to begin with.

    It’s also the reason the Founding Fathers created “restraints” against police and other officials from snooping into the private lives of private citizen without individualized probable cause evidence. It’s not only illegal to investigate using “guilt-by-association” but ultimately destroys their entire case.

    If harmed, those private citizens can then sue those agents for their “personal assets” since they gamed the system like this, in violation of their Oath of Office and federal law.

  8. One way for America’s national security agencies to repair their public image, would be for these agencies to become ultra-independent from politics and be “Guardians of the U.S. Constitution and Bill of Rights” – and it might be constitutional.

    Imagine an agency using their trade-craft to uphold their Oath of Office (as defined by the U.S. Supreme Court). We could have the CIA policing the FBI – the very definition of an equally weighted counter-balance or “Check & Balance” on near absolute power.

    It would greatly improve the reputations of these agencies and reduce the legitimate cynicism felt by the American voters – their employers.

    For example: since we are talking about movies, imagine the Jason Bourne movies where the government agency is the good guy instead of the evil villain? Shouldn’t Americans respect our institutions? Shouldn’t they give us a reason to respect them?

  9. If the FBI believes there were some omissions, I predict they will have plenty of time to explain that to Congress during hearings…

    I wonder what is the least untruthful answer they will come up with…

    • I must admire the Democrats’ sincere concerns about classified information. I mean, they were so outraged and concerned when classified top secret information was kept on multiple secret servers in a bathroom where people with absolutely no security clearance at all cleaned them, with a cloth, and uploaded and backed up the information on the Cloud, and then it was left on a laptop in the hands of a pedophile compulsive flasher, and then the classified emails, while under subpoena, were deleted, and then the illegal servers were scrubbed with BleachBit…

      Oh, wait…

    • Oh, this is so dangerous! If only they would ask the FBI to flag anything that would threaten national security beforehand, so as to ensure that no part was released that could harm us!

      Oh, wait, that is EXACTLY what they did.

    • If only we could return to the days when an allegation of fraud, corruption, and the weaponization of the FBI against conservatives could be deemed tinged with fantasy…

      • If da hard hard right like da KRen poster thinks a Russian spy like Carter Page is a conservative, country is in a spiral. These same people applauded da tactics of da FBI when they were used against anti war protestors and civil rights activists.

          • From Scahill on da Intercept not your hard right wing Fox bot: “ The memo doesn’t come close to saying what Hannity and company want it to say. It clearly is cherry picked. It is also laughable, as the Democrats and FBI allege that this “memo” harms national security. What a shitshow of dishonesty across the board”

            • “It clearly is cherry picked.” The only way you would know that is if you had access to the classified information from which it drew its conclusions. The memo had to be declassified before it could be released. For you to know with certainty that it was cherry picked means that you would have seen classified information. Otherwise, you are just believing what others have told you.

              If you have seen the information yourself, and know of anything that was omitted, deliberately or otherwise, then you can testify before Congress as a whistleblower. Go for it.

              It has been pointed out that Hollywood and the Mainstream Media, along with most of the Democratic Party, are passionately fighting against transparency. They do not want the public to get information and decide for itself. This is at the same time that the movie The Post is in theaters, where journalists fight to get transparency from the government.

              Ironic.

              The memo was already run by the FBI for them to flag any information that would harm national security.

              I suppose the media was opposed to finding out about abuses in Gitmo because it could harm national security?

            • I can see why Ken liked that last sentence….it’s an accurate description of the “shows” he puts on here regularly.
              I guess performers like reading about themselves.

            • Has Foxnews altered the memo? What difference does it make who provided it as long as it is a true document. The fact remains as often is the case with you that you don’t know what you are talking about. So much for being highly educated as you claim. Heck you cannot lie straight in bed. All you do is parrot mindless drivel and when someone calls this out, you deflect the topic because you cannot defend your position outright. Of all the people I’ve seen over the years you have one of the worst records of being biased and unwilling to accept something counter to your ramblings. It is obvious that you are not capable of independent thinking.

    • I’m confused. If the mainstream media is so adamant against declassifying and publishing information…then why does it eagerly publish leaked classified information?

      Shining the light of public scrutiny has a disinfecting property.

      The FBI should be free to discuss how it disagrees with the memo when it testified before Congress. It can defend itself. The people have a right to hear all sides.

  10. The Founder of the Republican Party made this dire warning in the 1860’s:

    “America will never be destroyed from the outside. If we falter and lose our liberties it will be because we destroyed ourselves” by Abraham Lincoln.

    Today neither party has been able to restore America’s constitutional democratic republic! That is what we should really be worried about.

  11. Well, Democrat J H Kunstler just put out another great article on this!

    Sotu Klaatu Barada Nikto

    It’s beginning to look a little like The Day the Earth Stood Still out there, with Devin Nunes in the Klaatu role, roiling the Earthlings into a frothy hysteria as they attempt to defend their puny empire of errand boys, grocery clerks, and elected buffoons. At dawn’s early light, we await The Memo.

    The New York Times was running veritable Chinese fire drills on its front page this morning denouncing The Memo in advance, shrieking about the end of the Republic, with the laughable caveat that… “None of this is to say the F.B.I. and the rest of the federal law enforcement apparatus should be immune from criticism or reform.” The Times editorial did not go into any detail about what exactly might invite that reform — like perhaps one top-rank agent telling another one that the “loathsome” president had to be gotten rid of at all costs.

    The casual observer — say, one who is immune to the charms of Donald J. Trump — can’t fail to notice that there is a bit more smoke emanating from the upper echelons of the FBI than has yet been seen in the sludgy narrative called “Russian Meddling in the 2016 Election.” Going into two years of that yarn, not one concrete detail has emerged. Meddled how? For all the “we now know” talking points uttered by Grand Inquisitor Rachel Maddow, it seems to me that we now know next to nothing about “collusion” between Russians and Trump, while we know a great deal about the indelicate behavior of FBI officers in important positions with grave responsibilities — government agents with the power to wreck lives — who cooked up an enormous hysteria in the body politic.

    The situation certainly puts the nation in a quandary. An uncouth and ridiculous President called forth to battle a vicious, dishonest, bureaucracy and in particular its gigantic, out-of-control “security” apparatus, which appears to have been hijacked by politically interested parties — namely, the minions of Hillary Clinton. You have been reminded here before that history is the supreme prankster. In Fourth Turning terms, the poor old disintegrating USA pined for a “gray champion” and all it got was this booby prize: a Manhattan real estate schmikler with a mean streak. Well, that’s how things roll in a long emergency. And this might only be the beginning of it.

    In any case, it appears that the FBI, in the hallowed words of Ricky Ricardo, has got some ‘splainin’ to do. Recall, it was not so long ago that the FBI was run by a cross-dressing maniac addicted to blackmail, so let’s not act as if the agency was something that the Lord Yahweh brought into being on the fifth day of creation, after the lobsters and the cockateels. Granted, J. Edgar Hoover was a hard act to follow, but we are now, evidently, living in an age of even lower men (and women, to be fair).

    CNN reminded viewers relentlessly last night that The Memo was sure to be a disappointment, a “nothingburger,” for a nation that expects a righteous half-pound beef patty with lettuce, tomato, pickle, and special sauce on a sesame bun. Personally, I expect something more like a three-day-old dead carp in a plain brown wrapper. Maybe “the Resistance” will try to make gefilte fish out of it, which is a burger of sorts: chopped meat, anyway.

    Meanwhile, we await the report of DOJ Inspector General Michael Horowitz, who has been rooting around in the same burger den as the House and Senate committees, questioning the same cast of characters. The DOJ report is liable to be more damaging than The Memo. The whole nasty gumball of suspicion and innuendo seems destined to climax in a constitutional crisis. Ludicrous as it seems — like some rogue army out of the stupid Star Wars epic — the “Resistance” bethinks itself the nation’s savior. In the best American tradition, they’ll burn the joint down in order to save it.

    http://kunstler.com/clusterf*ck-nation/sotu-klaatu-barada-nikto/

    You will have to replace the “*” in the link with the obvious letter to get to the original, since wordpress censors naughty words.

    Squeeky Fromm
    Girl Reporter

    • Generals definitely ginning up for endless conflicts. Did you see Chatty Kathy Haley at the UN trying to muster support for more sanctions against Iran?

  12. Probably Mueller’s gravest risk is the “culture” of the FBI itself. Although most that work there likely joined for noble motives to serve the public’s interest. Bureaucracies – with unconstitutional incentives & disincentives for employees – that violate their own oath of office create really bad and really felonious outcomes.

    This FBI culture knowingly destroys innocent Americans apparently using a “collateral damage” justification. This tactic is only legal during wartime and only on an actual battlefield with that legal designation. it is a felony crime to knowingly destroy innocent Americans on U.S. soil using “guilt-by-association” or an “ends justify the means” mentality. The entire premise of “Law & Order” itself is that the ends rarely, if ever, justify illegal means. The American Oath of Office for federal employees – which is also a federal statute – also makes “guilt-by-association” illegal.

    Mueller essentially led an agency that in a premeditated manner – as routine, not exception – destroys the innocent family members and associates of primary suspects that may be completely innocent. Mueller also advised his agents to walk away from innocent torture victims instead of arresting American torture interrogators. Mueller also didn’t arrest warrantless spying activities which is a felony crime. Although the politics were on his side, these were felony crimes under the Federal Criminal Code and under Ronald Reagan’s legally-binding international treaties against torture.

    The U.S. Constitution is a “wartime” charter that governs officials during wartime, there are already emergency clauses built in to this wartime charter – there is no “terrorism-exemption” to the supreme law of the land.

    Mueller got an “A” as a politician but an “F” as a law man. His supreme loyalty oath, the Oath of Office, which is a federal statute, also outlaws these practices.

    • Mueller gets an “A+” because he is conducting a professional investigation into obstruction and collusion at the highest levels of government- something that Putin would never permit in Russia. Coin..pro’s grading system, probably Russian in origin, proves that Mueller is getting closer and closer to making his case- the most recent example, the testimony of Mark Corallo.

      • re: Linda

        Mueller was at minimum an “accessory-after-the-fact” to several felonies including:

        Torture techniques that the Bush Administration’s DOJ attorneys adopted from the Spanish Inquisition. Felony crimes under U.S. law and Ronald Reagan’s legally-binding treaty against torture.

        Warrantless Spying and Warrantless Wiretapping – a felony crime under U.S. law.

        Fraudulent abuse of the “Material Witness Statute” (as determined illegal by a federal court).

        Mueller has many potential conflicts of interest and may need to recuse himself.

          • They have one with da American people and yes even da Russian people. Putin takes da gold and leaves da Russian people lacking in financial redources. Da T rump Putin oligarchy will weaken us. Their campaign against Mueller is on over drive and the bots are activated here there and everywhere on da internet. Beware.

            • Ken-
              Beware the future that the GOP turns over to the next generation and those that follow. America- once the greatest democracy in the world defeated by the Kochtopus, Mercers, Gates, Art Pope, Uihlein, John Arnold, the Pews, Eli Broad,….

      • To this day, the FBI “leadership” has never fully owned up to attacking Christian ministers in the 1960’s advocating voting rights for African-Americans. You heard that right – they were not enforcing crimes but perpetrating crimes in response to legal First Amendment activity.

        These were felony crimes under Title 18 that were exploited using the Vietnam War as a justification. One could argue these attacks, under the umbrella of Cointelpro tactics, were also a mild form of war crimes exploiting the Vietnam War.

        James Comey came the closest to owning up a few years ago but the bureaucracy still seems to view these felony crimes as mistakes or regrets. To my knowledge the only Cointelpro felonies that resulted in prison time was the Fred Hampton assassination engineered by FBI agents.

        When is the bureau going to own up?

        • T rump assured da country that his appointee Wray was an honorable man. Da tyrant T rump wants da FBI to do his bidding and that is all. If they bully some ordinary citizen T rump would be the first to cheer em on.

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