FISA Brief Asks Secret Court to Open Up on Nunes Memo

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By Jordan S. Rubin

What does the FISA court think of all this Nunes memo business? A legal brief filed Feb. 8 wants to know.

The Brookings Institution’s Benjamin Wittes and Susan Hennessey ask for the secretive tribunal to make public its view of allegations in the Republican memo that the Justice Department and the FBI misled it during surveillance of former Trump campaign adviser Carter Page.

The aim of the brief filed with the Foreign Intelligence Surveillance Court by lawyers with the Protect Democracy Project is to “clarify what the truth is,” Wittes, senior fellow at the think tank and editor-in-chief of the Lawfare blog, told Bloomberg Law.

Such amicus—or “friend of the court"—briefs are often filed in support of one side or the other, but the pair said they’re not acting here on behalf of any party.

“I trust the court a great deal more than I trust members of Congress in the course of a partisan squabble to answer the question of whether its own institutional function was compromised by the Justice Department’s behavior,” Wittes said.

The Memo

Rep. Devin Nunes, chairman of the House Permanent Select Committee on Intelligence in the Republican-led chamber, released the GOP staff-written memo Feb. 2 after President Donald Trump declassified it over the objections of the Justice Department, FBI, and Democratic members of the committee.

Among other things, the memo alleges that authorities didn’t tell the court that a so-called dossier, compiled by former British intelligence officer Christopher Steele and cited in an October 2016 FISA application for Page, was funded by the campaign of Trump’s White House rival, Democrat Hillary Clinton.

The government didn’t inform the court of the Clinton connection in the initial warrant application or in three subsequent renewals granted by the court to continue monitoring Page, the memo charged.

Trump and his supporters contend the allegations show grave government abuses.

Democrats contend the memo was misleading and part of an attempt to ultimately discredit special counsel Robert Mueller’s ongoing investigation of alleged Russian meddling in the 2016 election and whether there were links to the Trump campaign.

“Many government officials have reacted with alarm to what the Nunes memo describes as purposeful misleading of this court by the Justice Department and FBI,” the amicus brief observed, pointing to comments by Trump, Vice President Mike Pence, and House Speaker Paul Ryan in the wake of the memo’s release.

Justice Department spokesman Ian Prior declined to comment when asked if the agency agreed with the brief’s request of the court and whether it supports declassification and release of the underlying FISA warrant applications identified in the Nunes memo.

The White House, Nunes’s office, and the office of the House intelligence committee’s top Democrat, Adam Schiff, didn’t respond to Bloomberg Law’s requests for comment.

What Happened (or Didn’t)?

The Nunes memo’s claims that the court was misled may not be verifiable without being able to see the underlying FISA applications that were supposedly misleading.

But Wittes and Hennessey want the court to tell the public whether it was, in fact, misled, or, by implication, whether Nunes, Trump, and others touting the memo’s claims are the ones doing the misleading.

“In light of the claims leveled in the Nunes Memo, this court may be engaged in some sort of proceeding to review whether the Justice Department committed misconduct in this matter by withholding pertinent information from the court,” the brief said.

Wittes and Hennessey want the court to tell the public if that’s the case.

Claims in the memo of government abuse of the FISA process have undermined the public’s trust in proceedings before the court, the brief said.

The public should know not only if the court was misled, but also if it wasn’t, the brief said, arguing that the court is well-positioned to inform the public.

Courts “routinely consider and resolve allegations that wiretap orders were procured with false affidavits submitted by federal law enforcement officials,” and they also routinely publish these opinions, the brief said.

Not Asking to Declassify

The declassification and release of the Nunes memo prompted some news organizations to request that the underlying FISA applications themselves be made public, now that their existence has been confirmed by Trump’s declassification of the memo.

But Wittes said he “does not support the further release of classified material.”

He’s “looking for a very simple answer to a very simple question” to the court: “Yes or no, are you satisfied with the integrity of the process that took place before you?”

Wittes said he believes that, in an environment in which the chairman of the House intelligence committee is making allegations like these, “we have an obligation to clarify the record,” and to “make clear for those people who may be actually confused and may be amenable to knowing what the truth is.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com

For More Information

Brief available at src.bna.com/wgK.

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