February 26, 2018 2:49PM

The FISA Follies: The “Schiff Memo” Edition

On Saturday (Feb. 24), House Intelligence Committee Democrats were finally able to publish their rebuttal to the "Nunes Memo" written by the committee's GOP majority staff and released earlier this month. So what have we learned from this Democratic rebuttal memo? As it turns out, not much we didn't already know—though you wouldn't get that impression from the media's reaction to and characterization of the "Schiff Memo" following its release. 

NPR's Philip Ewing and his editors preferred to treat the dueling memos episode as a game:

The more a game is played, the more adept teams become at its rules and strategies. Basketball defenders deliberately foul an opponent to force a free-throw. A manager brings up a left-handed reliever to pitch inside to a dangerous left-handed hitter.

The Republican memo gambit and last weekend's Democratic riposte complete the first enactment of what could become a recurring sideshow inside Washington. The majority uses its control of the committee and its alliances inside the executive branch to release an unexpurgated file even if some of the relevant agencies object—as the FBI and Justice objected to the release of the Nunes memo.

The minority can't twist the arms of the agencies controlled by its opponents and it can't get parity with the opening shot: Nunes' memo was released by lunchtime on a Friday following a week of extensive coverage. Schiff's memo came out with no preliminary fanfare on a Saturday afternoon.

So will this be the template for each game? Or will Nunes and Schiff take a different approach next time? And with the rules more or less set, how will other players respond? Round Two is already different: Nunes suggested he was preparing another memo about what he calls problems with President Obama's State Department. So a former State official wrote a column in the Washington Post that tried to short-circuit that attack.

So for NPR, allegations of FBI/DoJ potential misuse of the FISA process is like watching a Wizards-Celtics match-up on ESPN.

Other media outlets claimed the "Schiff Memo" entirely rebutted House Intelligence Committee chairman Devin Nunes' (R-CA) case against the FBI:

Democratic members of the House Intelligence Committee on Saturday released a memo countering key claims made by their Republican colleagues, the latest chapter in Republican efforts to undermine special counsel Robert Mueller’s ongoing investigation into possible collusion between President Donald Trump’s 2016 campaign and Russian efforts.

The 10-page document reads: “FBI and DOJ officials did not ‘abuse’ the Foreign Intelligence Surveillance Act (FISA) process, omit material information or subvert this vital tool to spy on the Trump campaign.”

Former DoJ attorney and Georgetown Law professor Carrie Cordero went further in comments she made to WIRED:

“This memo repudiates a key allegation that was made in the Nunes memo: that the FBI and DOJ were untruthful to the FISC,” says Carrie Cordero, an adjunct professor at Georgetown Law School who has worked directly on FISA process issues. “That allegation went to the heart of the integrity of the FISA process, and as a former FISA practitioner, I'm glad to see it debunked.”

As the legal saying goes, those are facts not in evidence.

Both memos make claims and counterclaims that are designed to advance partisan narratives. For Democrats, the narrative is that the FBI & DoJ have behaved above reproach in this whole matter; for Republicans, the FBI & DoJ careerists have it in for a chief executive they despise and do not trust.

There's no question in my mind that the "Nunes Memo" was not a series effort to determine what really happened in the Carter Page FISA affair, and the "Schiff Memo" does a good job of highlighting demonstrable inconsistencies or even outright errors in the GOP majority staff memo.

But the job that Nunes and Schiff are charged with is not to take the word of DoJ or IC officials at face value (as Schiff clearly does) or to start from the proposition that every DoJ or IC official involved in the Carter Page FISA application process is a sworn political enemy of Trump (as Nunes clearly does). To determine actual ground truth in this episode, the Committee and the public need several things we do not currently have in a publicly available form.

The FISA application and renewals targeting Trump campaign advisor Carter Page

No real evaluation of what did or did not happen in this episode can take place until all FISA applications targeting Carter Page are made public. A number of House members on both sides of the aisle have called for this, but it remains to be seen whether it will happen anytime soon.

All other internal DoJ and Intelligence Community correspondence dealing with the Page FISA application and renewals

I'm deep in the research phase on a book that will cover at least 120 years of U.S. government domestic surveillance and political repression activities, and one key lesson I've relearned is how critical it is to have access to the background material produced by officials in the lead up to a major decision. Such material can reveal the actual intent and mindset behind a particular policy initiative, in contrast to the publicly stated intent at the time the final decision is announced or taken.

In the Carter Page episode, any emails, text messages, or other correspondence between or among officials at the Justice Department, FBI, NSA, and Office of the Director of National Intelligence regarding the Page FISA application and renewals are absolutely relevant in order to determine whether or not the FISA application and renewals were indeed legitimate under law or simply a cover for a politically-motivated misuse of surveillance authorities and powers. And it's not as if the DoJ and NSA have a pristine record of complying with the law vis a vis the FISA Court and its rulings, as the Demand Progress report on DoJ/IC FISA misdeeds documented last year.

A real examination of the workings of the FISA Court

On February 15, FISA Court presiding judge Rosemary Collyer responded to a Nunes request for FISA Court transcripts in the Page affair, the opening paragraph being the key one:

I write in response to your letter of February 7, 2018, in which you request that the Foreign Intelligence Surveillance Court confirm whether "transcripts of relevant FISC hearings associated with" matters described in the letter exist and, if so, provide copies to the Committee. As you know, any such transcripts would be classified. It may also be helpful for me to observe that, in a typical process of considering an application, we make no systematic record of questions we ask or responses the government gives. (emphasis added)

If no transcript of the proceedings was made during the original or subsequent DoJ appearances before the FISC in filing the FISA application or its renewals, exactly how are we to know how thorough the FISC judge who approved the application and renewals was in examining DoJ's claims about Page? Why aren't such transcripts mandatory in any proceeding involving a warrant application to spy on a U.S. citizen?

These and other questions about the function—or dysfunction—of the FISA Court need to be answered via a real investigation of the court's operations and practices. It would be a great project for the House and Senate Judiciary Committees to undertake, or perhaps even GAO, especially since the House Intelligence Committee seems far more interested in waging partisan warfare through selective releases of incomplete information on the Page FISA episode.