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The Nunes Memo Needs More Work

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The House Intelligence Committee Memo on possible FBI and Justice Department malfeasance relating mostly to the investigation of Donald Trump associate Carter Page is in some ways a bewildering document. As a former intelligence officer, the first thing I noticed was that the claim by Democrats on the Committee that the memo's release amounted to "treason" and would compromise classified information does not hold water. I could identify nothing in the memo that was even plausibly damaging to national security, though it might be argued that writing down anything about the activity and operation of the FISA court is ipso facto a compromise of secrets. It is a view that I would dispute because the memo does not actually expose any ongoing investigations or place in danger law enforcement officials. It is one of those fake security arguments that go something like "It is secret because it is secret."

The document is generally being referred to as the "Nunes Memo" after the name of the head of the House Intelligence Community, Devin Nunes, who ordered it drafted and who has been promoting its release. Having read the text through a number of times, it would appear to me that, in spite of Republican claims, it is somewhat less than a bombshell. It will need considerable elaboration to allow one to come to any real conclusions regarding whether sometimes sloppy FBI and DOJ procedures were either deliberate or driven by malice. It suggests that the Bureau may have been less than forthcoming in seeking a FISC ruling on Carter Page, who was at the time of the warrant not any longer a low-level associate of the Trump campaign, but there is no real hard evidence that the omission was deliberate and no compelling revelation of motive apart from the evidence that some senior officials and the author of the Steele Dossier did not like Donald Trump.

Even the evidence about the critically important Steele Dossier provided by the memo is somewhat ambiguous, particularly as the document suggests that Steele was a paid and fully controlled "intelligence source" of the Bureau and must have been acting under FBI direction. His meeting with a Legatt Officer in Rome at the insistence of the Bureau also suggests that he was cooperating without authorization from his former employer MI6, which could mean trouble down the road for Steele.

Beyond that there is some confusion. One source, FBI Deputy Director Andrew McCabe, said, but has since recanted, that the dossier was essential to the FISC request while another Assistant FBI Director Bill Priestap saying its allegations were in their "infancy" of being corroborated. That would seem to suggest that the Bureau deliberately used an unvetted Steele report of questionable provenance to make a case to surveil an American citizen under FISA, but is that really true? Indeed, it appears that the Democrats will concede that the dossier was used but it was only a "small and insignificant" part of the case. But if that was not so and the Republican allegation is basically correct, it would be devastating as the dossier was, in FBI Director James Comey's judgment, "salacious." And we do not know, of course, what the Bureau had developed on Page independently, which is no doubt what its counter-offensive and that of the Democrats will also focus on, a response which, incidentally, could reveal actual secrets relating to intelligence sources and methods.

And then there is FISA itself and its court. It is a peculiar structure intended to protect the civil liberties of suspects suspected of being "foreign agents" by requiring the government to show cause for a surveillance, but it has morphed into a rubber stamp for investigation of anyone and nearly everyone who can plausibly be suspected of nearly anything. It has replaced the civil court standard of "probable cause" to initiate surveillance with nothing more than suspicion. It only hears one side of an argument, that provided by the FBI, and it approves over 99% of requests. The investigations that it authorizes are far more intrusive than in normal civil or criminal cases, to include nearly everything connected with an individual.

So, we are left with a bowl of porridge – the FBI might have, and probably did, frontload its request to the court to favor the action that it wanted to take, but isn't that normal procedure anyway? Is anyone expecting a police agency charged with finding and arresting bad guys and promoting its people on that basis to be objective? If one looks at the terrorism related convictions since 2001, it is clear that the Bureau will do whatever it takes to get a conviction, up to an including inserting informants who actually instigate the criminal activity, a practice known as entrapment. Even the FISA court is aware of FBI inventiveness. In 2002 it identified 75 false or misleading claims made by Bureau officers and some officials have been blocked from testifying before the court due to their having provided false witness.

FBI procedures and ambiguities aside, this is nevertheless serious business. If it can be determined that the omissions in submissions to the FISC were deliberate and calculated, the astute blogger Publius Tacitus has correctly observed that some senior FBI and DOJ officials who signed off on misleading or fraudulent applications concealing the antecedents of the so-called Steele Dossier to the FISC are now facing possible contempt-of-court charges that would include prison sentences. They include James Comey, Andrew McCabe, Sally Yates, Dana Boente and Rob Rosenstein.

So there is likely considerably more controversy to come, whether or not the Bureau can or cannot provide backstory that credibly challenges the Republican Intelligence Committee memo. But it is also intriguing to consider what is missing from the document. As it is focused on the FBI and DOJ, there is no speculation about the possible role of senior intelligence officials CIA Director John Brennan and Director of National Intelligence James Clapper. Michael Isikoff reported in September 2016 that the two men were involved in obtaining information on Page and it has also been suggested that Brennan sought and obtained raw intelligence from British, Polish, Dutch and Estonian intelligence services, which apparently was then passed on to the Bureau and might have motivated James Comey to proceed with his investigation of the Trump associates. One has to consider that Brennan and Clapper, drawing on intelligence resources and connections, might have helped the FBI build a fabricated case against Trump.

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