By now you’ve likely heard of, and perhaps read, the much-vaunted memorandum written by the Republican majority staffers on the House Permanent Select Committee on Intelligence (HPSCI) and released to the public this past Friday. In short, the memo claims that evidence that HPSCI has uncovered raises serious questions about the legitimacy and legality of electronic surveillance of a U.S. citizen, Carter Page, under the Foreign Intelligence Surveillance Act (FISA). Some outlets (and members of Congress) have said that the memo uncovers a scandal worse than Watergate that totally discredits the DOJ investigation of Russian interference in U.S. elections and any connection to the Trump campaign being led by Special Counsel Robert Mueller. Other commentators have called the memo “a dud.” In the run-up to its controversial release, many Democrats on HPSCI suggested that releasing the memo would expose “sources and methods” of intelligence collection—among the most protected of the U.S. government’s secrets—while Republicans on that same committee suggested that it proved foul play by government investigators and lawyers leading up to (and beyond) the 2016 presidential election.
So what’s going on? What does the memo actually say and how is it significant? First, I encourage you to read it for yourselves. It’s only 3-and-a-half pages long. After a close read, it’s safe to say a few things about the memo and what it shows. First, it’s pretty clear that, at least in its published form, the memo does not reveal sources or methods of intelligence. That doesn’t mean that it’s not a big deal that it was declassified; I’m aware of no prior instance in which Congress has revealed the existence—much less named the target—of a specific FISA electronic surveillance order. It’s also apparent that the memo reveals next to nothing that substantiates the charge that the FISA process was abused. That’s not to rule out the possibility that the FISA process was abused by government officials, just to say that the memo itself doesn’t come anywhere close to making that case. Below, I’ll try to explain why.
Backing up a bit, it might be helpful to have a sprinkle of background information about FISA. FISA was enacted by Congress in 1978 in the aftermath of the Watergate scandal and the congressional Church Committee investigation that revealed significant abuses by U.S. intelligence agencies in collecting information about U.S. citizens in the absence of a warrant or other legal process. FISA is a complicated statute that regulates many tools of intelligence collection. If you’re interested, National Security Investigations and Prosecutions is a leading treatise with extensive coverage of the statute and its history. For purposes of the memo, the most important provisions are in Title I of FISA, covering the process to obtain an order authorizing electronic surveillance of a suspected foreign agent from the Foreign Intelligence Surveillance Court (FISC). The FISC consists of 11 federal judges from district courts around the country, who are in turn appointed by the Chief Justice of the United States to serve 7-year terms on the FISC, in addition to the lifetime appointment to the district court they are already serving. To obtain an electronic surveillance order, the government has to show several things, including that there is probable cause to believe that the target is a “foreign power” or an “agent of a foreign power.” For “United States persons”—a category broader than, but inclusive of, U.S. citizens—the definition of the term “agent of a foreign power” generally includes a requirement that the person’s activities “may involve a violation of the criminal statutes of the United States.” For U.S. persons, a FISA electronic surveillance order expires after 90 days unless the FISC (either through the same or a different judge) grants an extension based on new evidence showing probable cause. Proceedings before the FISC are almost all under seal due to the classified information before the court. Moreover, apart from statutory procedures for the court to appoint an amicus curiae to argue against the government’s position in certain matters, the government generally practices before the FISC in Title I cases without any other party’s involvement.
The memo alleges that the process for obtaining a FISA order to monitor Mr. Page’s communications was flawed because DOJ and the FBI did not disclose to the FISC that one of the bases for the order—the infamous Steele dossier—was prepared as opposition research on behalf of the Democratic National Committee. It notes that the DOJ sought and obtained a FISA order for Mr. Page’s communications on October 21, 2016 (about three weeks before the presidential election), and that the order authorizing electronic surveillance was renewed three times. Doing some simple math based on the 90-day surveillance periods, this means that the electronic surveillance order for Mr. Page was renewed once during the transition and twice under the current administration. In addition to alleging that the dossier’s origin wasn’t disclosed to the FISC, the memo also notes that Mr. Steele (the dossier’s author) had discussions with a senior DOJ official (Bruce Ohr) that revealed a strong ideological bias against then-candidate Trump, and that that bias was not communicated to the FISC either. So why don’t I think the memo succeeds in making its case? I’m glad you asked.