Editor’s Note: Ken Cuccinelli II, a CNN legal expert, has litigated in the FISC. He is the president of the Senate Conservatives Fund and former attorney general of Virginia. The opinions expressed in this commentary are solely those of the author.
Democrats and Republicans are recharging their hyperbole to open fire again over the Nunes memo. But there is a second part of this story we should not ignore. America’s secret surveillance of its own citizens has been abused and the Nunes memo gives us a chance to ask ourselves: “What power should any administration – whether it’s Democrat or Republican – have to spy on Americans? Shouldn’t judges protect us from this abuse?”
It takes Hollywood’s most creative conspiracy-theory scripts – think “The Manchurian Candidate” – to reach the level of interference in a presidential campaign that occurred in the 2016 presidential election.
The Nunes memo opens the door to Monday-morning quarterbacking of the decisions made primarily by the FBI in 2016. There were decisions in the election runup that Republicans are upset about (e.g., spying on Donald Trump’s campaign based on Hillary Clinton-funded opposition research) and decisions Democrats are upset about (e.g., the on-again, off-again, on-again investigations involving Hillary Clinton).
Monday-morning quarterbacking is, of course, what sloppily passes for accountability in a constitutional republic. And in this super-secret area of policy, it presents a rare opportunity for the public to have a peek.
The Nunes memo accuses the FBI of using the Foreign Intelligence Surveillance Act (FISA) process to spy indirectly on the Trump campaign based on very flimsy information related to Carter Page, a former Trump campaign aide who had left the Trump campaign the month before the FBI pursued the FISA warrant.
The memo specifically cites an unreasonable reliance on the Steele dossier – short reports compiled by Christopher Steele for the benefit of Hillary Clinton’s presidential campaign. And we know it was unreasonable, says the memo, because even then-Deputy FBI Director Andrew McCabe testified before the House Intelligence committee in December 2017 that without the Steele dossier, the FBI would not have sought a FISA warrant to spy on Page.
This reopens a dormant discussion of the potential for pure political abuse in the use of our national security apparatus.
Remember the so-called “unmasking” in 2016 that allowed a political appointee like former national security adviser Susan Rice to have access to politically sensitive surveillance information. That potential politicization of the national security apparatus rightfully should be included in this discussion, yet without something like the Nunes memo, the public concern about unmasking had died down. The Nunes memo will bring unmasking back into public view.
Carter Page is not a sympathetic character, but he is suing several press outlets and suggested to the Washington Examiner that he might sue the Department of Justice, alleging abuse of his rights. If he did, the Nunes memo would help him advance such a lawsuit, including in the discovery phase, which could present opportunities to learn more about this alleged abuse.
One of the most shocking aspects of this whole matter is how utterly naïve supposedly knowledgeable people like US House Intelligence Committee Chairman Devin Nunes and the person Republicans in the US House look to for prosecution-like matters – Congressman Trey Gowdy – are showing themselves to be about how the secret FISA court does its work.
Both Nunes and Gowdy have expressed surprise that the law enforcement and national security personnel involved in requesting a warrant from the Foreign Intelligence Surveillance Court (FISC), which approves FISA applications, might not have told that court every bit of information available at that time.
Excuse me? Where have you gentlemen been?
For years, many of us have been saying that:
1. There should be a designated lawyer to argue against government requests to the FISC (the FISC grants roughly 99+% of government requests);
2. No American should be spied upon without judicial review in an adversarial setting (i.e., at some point in the process there must be someone designated to protect, broadly, the constitutional interests of all American citizens in determining whether a warrant for spying is justified), even if individual targets cannot be made aware of warrant applications – including prior to any internal “unmasking” of Americans picked up in other surveillance efforts. Essentially, such a lawyer’s function would be to cross-examine the government’s evidence. Otherwise, the system is not only subject to abuse without oversight, but it has actually been abused with no consequences.
Finally, let’s not forget the hypocrisy. Lots of Democrats who are screaming about President Trump’s power voted to reauthorize FISA just a few weeks ago with absolutely no reforms or changes. Do they want the kind of abuse in 2020 that allegedly took place in 2016? We all know the answer to that question: “No way.”
And neocons like Nunes and Gowdy, who are leading the way among Republicans expressing shock that the FISC would not have had all of the relevant information when deciding whether or not to issue a secret warrant to spy on an American citizen: Where were they a few weeks ago when, with full knowledge of all the information in the Nunes memo, they, too, voted to reauthorize FISA with no reforms?
Once we get past the politics of the Nunes memo, FISA needs to be reformed so these kinds of unchecked abuses of power can never be repeated against any citizen, regardless of whether or not they are running for president.