Privacy SOS

The Nunes memo and the death of irony

After receiving President Trump’s formal approval, Congress today released the Nunes Memo. Chairman of the House Intelligence Committee Devin Nunes claims his findings “raise concerns with the legitimacy and legality of certain DOJ and FBI interactions with the Foreign Intelligence Surveillance Court (FISC).” In October of 2016, the DOJ and FBI applied for FISA warrant to surveil Carter Page, a Trump campaign advisor who had close ties to Russia. The FISC judge approved the request, and investigators began wiretapping his communications. Nunes’ memo claims that the FISA warrant application relied on the controversial Steele dossier. Compiled by British intelligence officer Christopher Steele, the dossier explored Trump’s ties with Russia and was partially funded by the DNC and Hillary Clinton’s campaign. The Nunes memo asserts that the DOJ and FBI misrepresented the facts by failing to inform the judge about the dossier’s funders. It then goes on to discuss Steele and essentially ignores the other materials in the FISA application.

The memo states that there has been “a troubling breakdown of legal processes established to protect the American people from abuses related to the FISA process.” It goes on to state that “the public’s confidence in the integrity of the FISA process depends on the court’s ability to hold the government to the highest standard—particularly as it related to surveillance of American citizens.”

Irony is truly dead.

Though Nunes has branded himself a supporter of transparency and critic of the FISA surveillance regime, these assertions are on their face laughable. Nunes just last month voted to ensure that Americans will continue to be subjected to secretive, warrantless surveillance authorized by the FISA Amendments Act, a law originally passed to put Congress’ stamp of approval on the Bush administration’s post-9/11 warrantless wiretapping program. Nunes’ January vote to reauthorize Section 702 of FISA allows the government to conduct wide-scale, warrantless surveillance of Americans’ communications.

Under these Nunes-approved authorities, the NSA can obtain social media messages and emails, and store them in a database which even domestic law enforcement officials at the FBI can access willy-nilly. The newly reauthorized 702 also permits “about” collection, meaning the NSA can collect any message that contains information about a target, even if the surveillance target is not a party to the communication. What this means is that all of our communications are potentially scanned by the US military’s intelligence agency, just in case they contain a mention of a target. Nunes fully supported this surveillance program when it was up for reauthorization last month, and even opposed an amendment that would have required FBI agents to obtain a warrant before sifting through Americans’ communications.    

Furthermore, when he has had the opportunity to investigate NSA surveillance, he hasn’t. As Patrick Eddington of the Cato Institute observes,

Nunes’ tenure as HPSCI chairman has been a poltical and oversight disaster. Nunes and his GOP colleagues have made much about alleged surveillance violations against white businessmen while ignoring far more credible allegations of surveillance abuse against politically active people of color. The memo on alleged violations of Page’s rights rings quite hollow when you consider that the House GOP-controlled HPSCI conducted no investigation into documents released by Edward Snowden showing clear evidence that Arab- and Muslim-American leaders had been the target of unjustified–and likely unconstitutional–surveillance. The targets included a then-Republican Arab-American Virginia House of Delegates candidate, Faisal Gill.

So if Nunes doesn’t really care about Americans’ privacy, why did he write this memo and then work so hard to release it? Critics suspect Nunes’ true intention is to detract from Robert Mueller’s investigation of Russian involvement in the 2016 election. Deputy Attorney General Rod Rosenstein is overseeing the Mueller investigation, and according to the memo he signed at least one of the FISA requests on behalf of the DOJ. Nunes is likely trying to paint a picture of a biased, anti-Trump campaign led by a corrupt DOJ official. If Rosenstein were to be removed from the investigation, Trump could appoint a deputy attorney general who would be more willing to cater to his interests.

But that will likely be a tough argument to make stick. The memo does not disclose information about the other materials in the FISA application, besides the Steele dossier. Absent those details, it is impossible to determine how much weight the Steele dossier held in the FISC judge’s decision. We do, however, know that even without the Steele dossier, Page’s relationships with prominent Russians were public knowledge. We also know that FISC approves 99% of all wiretap applications—something Devin Nunes doesn’t appear to be concerned about. From 1979 to 2013, only 12 warrant requests were denied. We also know that this would not be the first time that Nunes misrepresented information in order to protect Trump’s image; the last time led to a House ethics investigation and his forced recusal from the Russia investigation. Exploiting Americans’ desire for privacy and a more transparent government is just Nunes’ way to protect an administration that spies and keeps secrets.

This blog post was written by Iqra Asghar, an intern with the ACLU of Massachusetts’ Technology for Liberty Program.

© 2018 ACLU of Massachusetts.