In The Case Of The FISA Memos, Transparency Is National Security

downloadBelow is my column on the ongoing controversy over the majority and minority memos from the House Intelligence Committee. President Donald Trump has sent the Democratic memo — which is much longer and detailed — back to the Committee for revisions. He accused of the Democrats of intentionally loading up the memos with classified information to argue that the White House was withholding embarrassing information.  This column below argues for disclosure of not just as much of these memos as possible but underlying material.

“National security” has been a rallying cry for politicians for centuries. Unassailable and undefined, it is the perfect conversation-stopper when debating opponents, particularly when you control the information that would prove or disprove your position. The mantra of “national security” is often used as if it has a fixed and universally understood meaning. It doesn’t, and the controversy over the “Nunes memo” from the House Intelligence Committee highlights how politics can distort semantics of security.

For weeks, the FBI and Democratic leaders like House Minority Leader Nancy Pelosi (D-Calif.) and House Intelligence Committee ranking minority member Adam Schiff (D-Calif.) declared that the release of the memo would seriously undermine national security due to its highly classified content. The FBI said that the release of the memo would cause “grave” consequences to national security. When the memo was released, the public found that it was devoid of anything even remotely sensitive, let alone the disclosure of “sources and methods.”

For civil libertarians, the Foreign Intelligence Surveillance Act (FISA) controversy does raise a serious national security issue of a different kind. First, there is the underlying issue involving the use of national security powers for political purposes. While the true facts have not been fully established, there are aspects of the controversy that are troubling. The Clinton campaign and the Democratic National Committee hired former British spy Christopher Steele to gather dirt on Donald Trump.

For many months, the Clinton campaign denied any connection to the dossier and only recently admitted that they were behind the effort when confronted with new information. Moreover, there are indications that close associates of Clinton may have fed material to Steele, who tried to get the information into the media during the campaign and told an FBI official that he was “desperate” to stop Trump from being elected.

These associates reportedly include controversial Hillary Clinton adviser Sidney Blumenthal, who has been long been accused of spreading rumors against Clinton opponents and critics. It also includes a State Department official, Jonathan Winer, who seemed to function as a transit point on dirt involving Trump. He has admitted to both passing along hundreds of Steele reports to high-ranking officials as well as sending information from Cody Shearer, a freelance writer with close ties to the Clintons. If people in the Obama administration used the FBI to target political opponents, it would be a national security concern.

Second, it is also a national security concern if the FBI has used its classification authority to try to bar the release of embarrassing information. The FBI has a long history of classifying abusive or criminal conduct. It has used national security to pursue political figures like Martin Luther King. On this occasion, it not only misused classification laws but misled the public.

The primary objection of the FBI proved to be not the disclosure of national security secrets but what it viewed as an unfair portrayal of its own conduct. The FBI also was reportedly upset that the memo included the names of high-ranking FBI and Justice Department figures, like James Comey and Rod Rosenstein, who signed off on the controversial surveillance of a Trump adviser. Not only was such information not sensitive, it clearly was not a “grave” threat to national security.

The Republicans were right to override the FBI and release this memo. That does not mean that the memo is accurate, but it was not a threat to national security. Likewise, the Republicans were correct in joining Democrats to seek the release of the minority memo. The content of these memos is separate from their classification.

Nevertheless, Schiff has called the release of the clearly unclassified Nunes memo to be a “sad day” for the country and “a shameful effort to discredit” the FBI and Justice Department. Other Democrats have expressed shock that the Republicans would defy the FBI in this way, negating the committee’s oversight role in such disputes. Rule 11(g) was specifically written to address rampant over-classification of material like the Nunes memo.

Schiff and other Democrats once strongly advocated for transparency and oversight independence. In 2013, Schiff called for the FISA court to be “much more transparent so that the American people can understand what is being done in their name and in the name of national security so that we can have a more informed debate over the balance between privacy and security.”

Whatever your definition of national security, it should not mean job security for the FBI or political security for any party. National security is meant to protect something other than the agencies themselves. First and foremost, it protects our lives and our liberties. It is a national security threat when politicians or agency officials lie to the public about declassification dangers. It is also a national security threat to use secret courts and classified proceedings to hide government abuse.

In the Federalist Papers, James Madison explained it best. “In framing a government which is to be administered by men over men,” he wrote, “the great difficulty lies in this: You must first enable the government to control the governed, and in the next place oblige it to control itself.” Controlling the FBI is a national security matter if both our lives and our liberties are to be protected.

So where does that leave us? Simple: This is a case where transparency is national security. On issues ranging from the testimony of former FBI deputy director Andrew McCabe to the basis for secret surveillance orders, someone in our government is clearly lying to us. The only way to know is to force the disclosure of not just the majority and the minority House Intelligence Committee memos but transcripts and other related materials.

Much of the details of these investigations have already been leaked or disclosed. It is now of paramount importance for the public to confirm who has been using our national security laws to spread false information, whether inside Congress or inside the FBI. We also need to resolve whether the FBI and our security services were influenced by political motives or associations. It is not simply a matter of politics. It is a matter of national security.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He has been lead counsel in national security cases for more than two decades and has testified before congressional intelligence committees. You can follow him on Twitter @JonathanTurley.

47 thoughts on “In The Case Of The FISA Memos, Transparency Is National Security”

  1. A comparison between the original version of the Grassley letter and the less redacted version is both funny and scary — in the first version they redacted the name of a WAPO article in footnote 5.

    when “national security exemptions are used to hide evidence to protect agencies and officials from embarrassment or hide their wrongdoing, it undermines public confidence in legitimate secrets.

  2. Why was Rachel Brand too terrified to continue as No. 3 at the DOJ who might be called upon to replace Rod Rosenstein and supervise Mueller? Why is Rod Rosenstein in jeopardy to the degree that it affected Rachel Brand? Is this a gender fear or a fear of the discovery of pervasive corruption? Who’s on deck?

    “WASHINGTON — The Justice Department’s No.3 attorney had been unhappy with her job for months before the department announced her departure on Friday, according to multiple sources close to Associate Attorney General Rachel Brand.”

    “Brand grew frustrated by vacancies at the department and fear she would be asked to oversee the Russia investigation, the sources said.”

    – AOL/NBC

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