Just in case you’ve totally tuned out what’s going on in Washington, DC in recent weeks, or if you only get your news from conventional sources, I thought I’d provide a bit of an explanation about what is in the FISA memo that will likely get released in the next week or so.
What is FISA
FISA is the Foreign Intelligence Surveillance Act. FISA was signed into law by President Carter. The law was intended to take authorization for secret surveillance out of the exclusive hands of the president.
Before it was enacted, presidents had authorized Cold War-era surveillance of people suspected of acting as agents of foreign governments on U.S. soil. This law was intended to involve all three government branches.
The executive branch is represented by the U.S. Department of Justice, which submits FISA applications to a special court; the judicial branch staffs and oversees the panel that approves or denies the applications; and Congress has oversight responsibilities for the court’s decisions (through House and Senate committees on Intelligence and the Judiciary).
The law is intended to allow the government to secretly keep tabs on people suspected of acting as agents of foreign powers on U.S. soil. (Congressional amendments to FISA after 9/11 also permit government agents to eavesdrop on foreigners whose communications are intercepted in the U.S.) Most targets of the surveillance are suspected of spying on the U.S. for overseas intelligence services or having ties to foreign terrorist organizations.
FISA and Trump
You may recall early last year that President Trump tweeted a message about being wiretapped by the Obama administration. While his phones, office and home may not have necessarily been bugged, it became clear that surveillance was indeed being conducted on members of his team. This was due to reports that the Trump team may have colluded with the Russian government to win the presidential election.
In order to be able to conduct this surveillance, it was necessary for the Department of Justice to obtain a surveillance warrant from the Foreign Intelligence Surveillance Court (FISC). It’s been reported that the first attempt at obtaining a warrant occurred in June 2016, and the request was denied.
A second attempt occurred in September or October 2016, and it is reported that the surveillance target may have been Trump campaign aide Carter Page.
The Nunes FISA Memo
So what is the FISA memo we are now hearing about, and who many Republicans in the House want released to the public?
Let’s go back to March 2017. Devin Nunes is the head of the House Intelligence Committee. In March last year, Nunes abruptly held a press conference to report that he was disturbed by intelligence he had recently read at the White House. The data was only made available to Nunes after Dan Coats was confirmed as the new Director of National Intelligence to replace James Clapper.
This press conference caused a bit of an uproar with the committee, particularly with Democrats on the committee, because they had not yet seen the data seen by Nunes. As a result, Nunes was forced to recuse himself from the Intelligence Committee’s ongoing investigation into the Trump-Russia collusion narrative.
What Nunes apparently found so disconcerting in the data was the unmasking of the names of members of Trump’s transition team, and the subsequent leaking of those names to the press. General Michael Flynn is reportedly one of those names that was unmasked and leaked to the press.
Late last summer, the Intelligence Committee requested documents from the Department of Justice. By late December, these documents had not yet been produced by the DOJ, and Nunes, who had been cleared of any wrongdoing regarding his press conference by the House Ethics Committee, threatened the Deputy Attorney General Rod Rosenstein, and FBI Director Christopher with contempt if the documents were not produced by early January. Attorney General Sessions was not threatened with contempt since he had recused himself from the entire investigation early last year.
The requested documents were subsequently made available to the Intelligence Committee and all members of the committee reviewed them. Nunes, along with Congressman Trey Gowdy, put together a four page memo that summarizes their findings in the documents provided.
Some of the issues that may have arisen in the data include the use of the Steele Dossier in obtaining the FISA warrant, the unmasking of members of Trump’s transition team, and other potential issues.
If the Steele Dossier was given significant consideration in obtaining the FISA warrant, it could be problematic. Much of the dossier has been discredited, and the information was primarily derived from third party sources. Christopher Steele himself has not set foot in Russia in nearly twenty years.
Furthermore, Steele was contracted by Fusion GPS, which was contracted by Perkins Coie, a DC law firm, that was contracted by the Democratic National Committee, the Clinton Campaign and Obama’s Organizing for America PAC.
If indeed a much discredited dossier paid for by one campaign was utilized to obtain a warrant to spy on the rival campaign, then there is a signficant problem. This would be a scandal above and beyond Watergate.
The Intelligence committee voted along party lines to have the memo made available to all members of the House. Many Republicans who’ve read the memo have demanded that it be released to the public.
The FISA memo has taken on greater importance as a result of text messages between FBI agent Peter Strzok and his mistress and also DOJ employee, Lisa Page. These text messages have indicated the potential of bias in the investigation of Trump by the FBI and DOJ.
Ultimately, it is possible that the memo has been overhyped by the Republicans who’ve demanded its release to the public.
However, given the blowback that the Democrats on the committee are providing, as well as the DOJ’s insistence that it review the memo, it is very possible that there is some damning information in the memo.
Time will tell!