Donald Trump

Everybody's Talking About 'The Memo' and Ignoring the Surveillance Debate

Partisan posturing drowns out important civil liberties concerns.


Devin Nunes

The first thing you need to know about "The Memo" is that nobody can truly tell you what you need to know about "The Memo" in advance. That's part of the whole shtick.

Here are some basics, though. Rep. Devin Nunes (R-Calif.), previously an extremely pro-surveillance lawmaker, and his staff in the House Intelligence Committee crafted a four-page memo that claims to show that the FBI abused its surveillance authorities. The memo apparently claims that the FBI misled the Foreign Intelligence Surveillance Court (FISC) with the now-infamous "Steele Dossier" in order to get permission to wiretap former Trump aide Carter Page and his conversations with Russian officials. All of this, they say, was part of a conspiracy to attack the Trump administration.

Nunes' memo is currently classified. It has been seen by House lawmakers and, over the weekend, by FBI Director Chris Wray. Last night the House Intelligence Committee voted to begin the process of publicly declassifying and releasing the memo. This starts a five-day clock for Trump to weigh in on if he wants to keep the memo classified. The White House has suggested that it supports the memo's release; we'll see what actually happens.

In the meantime, everybody wants to tell you what to think about the memo based on whether they're backers of Team Red or Team Blue. For those of us who are neither and don't care whose ox gets gored (or hope they all do), there are still reasons to care about what's happening, why it's happening, and the overall impact of this fight.

Yes, This Memo's Release Is Politically Motivated. That's OK.

The Democrats also prepared their own memo explaining what they believed happened with the wiretapping. The Republican-controlled Intelligence Committee declined to release the Democratic version. So only one party here—the party the president belongs to—will be able to publicly represent its interpretation of the surveillance of somebody close to the president.

It's silly to pretend that this is not a deliberate effort to undermine the investigation of potentially inappropriate behavior between people close to Trump and foreign governments. It's also silly to deny that the Democrats' sudden insistence that the FBI is beyond reproach (yeah, right) is a deliberate attempt to undermine critique.

But there might actually be an upside to all this political posturing. The average American knows very little about how federal surveillance works in practice. A sudden burst of transparency, even one-sided and politically motivated, can at least give everyone a better understanding of how the secretive foreign intelligence court actually works.

And for better or worse, Trump is the president of the United States. Secret surveillance of people in the president's orbit by members of his own government is a big deal. It's completely appropriate to reject the idea that we should simply trust that FBI officials are behaving appropriately. They have a very lengthy history of doing otherwise.

But the Memo Is Not Going to Tell You What Actually Happened.

The Nunes memo is an interpretation of classified intelligence that was used to get authorization to snoop on Page. But it's not the intelligence itself. So if we're willing to acknowledge that part of the motivation to release the memo is to protect Trump, we have to acknowledge that this memo is probably not going to tell the whole story.

Do not take this as a demand to keep the memo secret. We should see the memo. We should see the Democrats' memo. And at some point, we should be able to see the underlying intelligence.

Note that Trump, as the president of the United States, has wide authority to arrange for the declassification and release of this intelligence information that supposedly has been misapplied in order to snoop on him and undermine his presidency. That little detail doesn't seem to capture as much attention. The Nunes' memo is one step removed from being able to see what the FBI actually presented.

Again, this is not a demand for less transparency, but for more. We shouldn't settle for the perspective of people who have an obvious interest in shielding the president.

None of This Will Lead to a Discussion of Surveillance Policies and Practices.

A reminder for the umpteenth time: Many of these Republican members of Congress who are acting outraged about the surveillance of Trump just voted to renew and expand the FBI's authority to snoop on American citizens through this secret system. And Trump himself signed the bill into law.

All the while, these same folks misled the American public by saying these surveillance powers were necessary to capture foreign terrorists. As the Cato Institute's Julian Sanchez notes over at Just Security:

One need not believe that there are ongoing partisan conspiracies within the FBI and Justice Department to support more stringent civil liberties safeguards on the broad spying authorities the intelligence community has accumulated over the past two decades. But it is very hard to understand how one could believe such a conspiracy exists—indeed, continues to be covered up by sitting officials—yet reject even the idea of pausing to debate such safeguards before renewing precisely the sorts of powers one claims have been abused.

That's especially frustrating for those of us (and you) who have been paying attention to the federal government's misuses of surveillance for years now, long before Trump even announced his candidacy for president.

UPDATE: If this tweet is accurate, the Nunes memo will be released, and soon.