US law enforcement and intelligence services faced a stunning rebuke last week in a memo from Republicans in Congress. What are the implications of its controversial allegations?
T he investigation into Russian interference in the 2016 US Presidential Election continues to dominate American politics. Charges have so far been brought against four prominent members of the Trump team, including ex-campaign manager Paul Manafort and former national security adviser Michael Flynn.
In Congress, the House Intelligence Committee has been completing their own inquiries. The Republican majority on the committee, chaired by Republican Representative Devin Nunes, vocally opposed the ways in which the Trump campaign has been investigated. Their grievances were declassified on February 2 in a three-and-a-half page report.
Dubbed “The Nunes memo,” it focuses on the surveillance of Carter Page, a US citizen who worked as a campaign aide for Donald Trump. On October 21, 2016, the FBI and the Department of Justice (DoJ) obtained a warrant under the Foreign Intelligence Surveillance Act (FISA) to monitor Mr. Page’s communications as they had “probable cause” to believe he was acting as “an agent of a foreign power”.
The Nunes memo contends that across the initial application for surveillance, and its three renewals, “material and relevant facts were omitted” to an extent that raises concerns regarding the “legitimacy and legality” of DoJ and FBI investigations around the 2016 election.
Its arguments have faced significant rebuttals. “At best, the Nunes memo is an aggressive over-simplification,” Alan Rozenshtein, former DoJ attorney and visiting professor at Minnesota Law School, told The World Weekly.
A central point of the memo is that the surveillance application relied excessively on unreliable intelligence collected by ex-MI6 agent Christopher Steele for intelligence firm Fusion GPS. Mr. Steele’s research was funded first by conservative-leaning Washington Free Beacon, and then by the Democratic National Convention and lawyers connected to Hillary Clinton’s campaign. The Nunes memo contends that these “political” roots of the intelligence were concealed in the application.
The so-called “Steele dossier” comprises 16 reports Mr. Steele submitted to Fusion GPS alleging intricate ties between Mr. Trump and Russia. The dossier's existence was first revealed publically in an article in Mother Jones on October 31, 2016, and its content remains a source of great public controversy.
Analysts argue that the Nunes memo misleads on US law. “The process the warrant had to undergo to get approved undermines the whole argument that the Steele dossier was the linchpin of this,” Michael Zeldin, a legal analyst, told CNN’s Hala Gorani. Surveillance warrant applications have to be based on an array of information sources (applications generally run to around 60 pages), all intelligence used in the application has to be corroborated by the FBI and DoJ, and each renewal requires evidence that new actionable intelligence – therefore information beyond the Steele dossier – be gained by the previous warrant.
Some have questioned the memo’s fundamental understanding of FBI procedure. Intelligence given to the FBI regularly contains biases, including political leanings. But this ‘raw intelligence’ is subjected to extensive corroboration procedures to verify its value.
Regardless, Democratic members of the House Intelligence Committee stated that the surveillance warrant did in fact disclose that Mr. Steele’s research was politically motivated - a fact quietly acknowledged this week by Mr. Nunes.
Mr. Page had been on the FBI’s radar since 2013, when a Russian intelligence operative attempted to cultivate him as an asset in New York. Mr. Page maintains that he has always fully cooperated with government inquiries.
Committee Democrats were clear about the importance of the surveillance warrant. “The FBI had good reason to be concerned about Carter Page,” declares the press release.
‘Political hit job’
Republican leaders presented the Nunes memo as a milestone for transparency of the foreign surveillance system. “Amidst all the political rancour, we must be able to work together to ensure the FISA system works as intended and Americans’ rights are properly safeguarded,” Republican House Speaker Paul Ryan said in a statement.
Transparency organisations, however, believe Republicans are appropriating calls for public oversight over the secretive FISA court to serve their opposition to one case. In January, many Republicans – along with some Democrats – voted to extend FISA surveillance powers. “The use of 'transparency' in Washington in this context should be viewed through a partisan lens,” Sunlight Foundation, a non-profit advocacy group of open government, said in a statement.
Democrats depicted the Nunes memo as a servant of Republican political goals to hinder the Russia investigation. “The interest wasn’t oversight,” Adam Schiff, the ranking Democratic member of the House Intelligence Committee, told ABC’s ‘This Week’. “The interest was a political hit job on the FBI in the service of the president.”
Partisan hostility seems set to continue. Republicans on the House Intelligence Committee did support a motion on Monday to declassify the full Democratic rebuttal to the Nunes memo. The parties are, however, deeply divided over the amount of redactions the White House should make as it reviews whether to publish it by February 9.
Meanwhile, conservative media personalities depicted the Nunes memo as a triumphant moment. Questions about the integrity of the Russia investigation have been given months of coverage, with the “#releasethememo” campaign hinting at a cover-up by the establishment. “If we care about the constitution, the Mueller probe must be disbanded immediately,” declared Sean Hannity recently on his Fox News programme.
Republican rank-and-file have taken a mixed stance to the Russia investigation. Whilst Special Counsel Robert Mueller III has many Republican defenders, some in the party see a lurking spectre of criminality. Reports emerged this week that a letter from two Senate Republicans sent to the FBI and the DoJ voiced further concerns about the FISA application.
Then there is President Trump. Multiple media outlets reported that Mr. Trump believed that the memo would expose the prejudice of the Russia investigation. “This memo totally vindicates ‘Trump’ in probe. But the Russian Witch Hunt goes on and on… This is an American disgrace,” the president tweeted on February, 3.
It is worth noting that Mr. Trump’s hypothetical scenario does not bear legal scrutiny. Current interpretations of the Fourth Amendment mean that evidence gained from illegal surveillance is generally admissible in court against individuals who weren’t the targets of the surveillance. “Trump can’t use a ‘tainted’ warrant into Carter Page to absolve himself in the Russia investigation,” says Mr. Rozenshtein.
The White House insists that no immediate action will be taken. Democrats have made their position clear. “To say that’s the end of the investigation… this would precipitate a constitutional crisis,” Democratic Senator Dick Durbin told CNN.
Many fear lasting damage from the Russia investigation – whatever its outcome. “No one - certainly not a president - should be deliberately taking aim at the reputation of such critical institutions as the DoJ or the FBI for the sake of political expediency,” Joshua Geltzer, former senior director for counterterrorism on President Barack Obama's National Security Council, told TWW.
Some observers believe sweeping, unsubstantiated denunciations of the intelligence services could hinder Congress’ ability to address genuine concerns. Known as the ‘Grand Bargain,’ congressional oversight of the intelligence services was established in the 1970s after decades of abuse by the latter.
Doubt has seeped into public opinion. An Axios poll from last week showed that, amidst majority public approval, 47% of Republicans regarded the FBI as “unfavourable” – “a stunning turn for the law-and-order party.”
Surveyed Republicans seemed to view elements in law enforcement as not fit for purpose. A Reuters/Ipsos poll released on Monday found that 73% of Republicans agreed that “members of the FBI and Department of Justice are working to delegitimise Trump through politically motivated investigations.”
This conviction has consequences. Senior FBI Agent Josh Campbell recently left the FBI to speak out against “scorched-earth attacks from politicians with partisan goals.” His op-ed in the New York Times highlighted how much the FBI relies on public trust in everything from collecting witness testimonies to agents testifying before a jury. “If those critics of the agency persuade the public that the FBI cannot be trusted, they will also have succeeded in making our nation less safe,” he concluded.