Congress Intelligence

Can the FISC Clean Up the Nunes Memo's Mess?

Sophia Brill
Tuesday, February 6, 2018, 7:00 AM

At the heart of the now-released “Nunes memo” is an accusation that the FBI and Department of Justice misled the Foreign Intelligence Surveillance Court (FISC) when they sought orders to surveil former Trump campaign adviser Carter Page. One quandary (among many) is how the FBI and Justice Department can defend themselves from these allegations without revealing yet more classified information.

The E. Barrett Prettyman federal courthouse in Washington. (Photo: Wikimedia)

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At the heart of the now-released “Nunes memo” is an accusation that the FBI and Department of Justice misled the Foreign Intelligence Surveillance Court (FISC) when they sought orders to surveil former Trump campaign adviser Carter Page. One quandary (among many) is how the FBI and Justice Department can defend themselves from these allegations without revealing yet more classified information. Additionally, although the House Permanent Select Committee on Intelligence has voted to permit the release of the rebuttal memo prepared by the committee’s Democrats, President Trump could potentially still seek to block the second memo’s publication. So Washington appears headed for another week of controversy over whether or not the FISC had the wool pulled over its eyes.

There’s a simpler solution to this problem: The FISC could speak for itself.

Already, the New York Times and other organizations have filed a motion in the FISC asking it to unseal documents related to Carter Page. It may well take some time and potential wrangling for the court and the government to determine what documents can be declassified and what must be redacted. But if the FISC were to issue a new order simply stating whether it believes itself to have been misled by the government, that order could be easily be declassified—and could answer definitively whether the Nunes memo has any legitimate claims behind it.

At its core, the Nunes memo alleges that the FBI’s and Justice Department’s FISA applications relied heavily on the so-called Steele dossier but failed to include various facts that could have undermined Steele’s credibility. The counter-argument would presumably be that the applications did not substantially rely on the Steele dossier; that any claims made in the dossier were independently corroborated; and/or that the government had far more compelling evidence justifying probable cause to believe that Page was acting as an agent of a foreign power. But any effort to explain this may only make matters worse from a security and counterintelligence perspective.

As Gregory Wallace has already noted in The Hill, the most obvious institution to answer the question of whether the FISC was misled is the FISC itself. If the court views the matter of the Steele dossier and the other contentions in the Nunes memo as immaterial in light of other evidence, it could say so without revealing that other evidence.

Typically, the FISC does not simply go around issuing declarations of this kind—let alone public declarations about specific FISA orders. But there are a few potential procedural mechanisms that could lead it to issue an opinion or short order stating whether or not it views any of the Nunes memo’s new information on Steele (to the extent it is new and is factually accurate) as having any material impact on the validity of its prior orders. Here are some ways this could work:

  • Rule 5(c) of the FISC’s Rules of Procedure allows any FISC judge “before whom a matter is pending” to “order a party to furnish any information that the Judge deems necessary.” So to the extent any orders related to Page (or perhaps to the broader investigation) are still pending, the FISC—if it hasn’t already—could ask the government to explain its position as to the Nunes memo and its relevance to the validity of the government’s prior applications involving Page.
  • Rule 13(a) requires the government to inform the relevant FISC judge in writing if it discovers that a submission previously made to the court contains a material misstatement or omission. If any of the claims made in the Nunes memo really are material facts and were previously omitted, the Justice Department should obviously have already notified the court. But if the Department does not view these claims as relevant or as true, it could still potentially make a filing with the FISC, perhaps by way of a “clarification,” explaining its view as to why.
  • Alternatively, if the FISC itself is concerned about the claims made in this memo, it could issue an order for the government to show cause as to why it has not made a supplemental filing under Rule 13(a).
  • Even without the mechanism of any specific rule, it is not farfetched to think that the Justice Department could make an ex parte supplemental filing before the FISC to keep it informed of any factual developments relevant to matters on its docket. Given the unprecedented degree of attention that has been focused on particular FISA orders issued by the FISC, including by Congress, it would hardly be out of line for the Department to keep the court apprised of its understanding of the facts.

The harder question may be whether the FISC could then issue an opinion or order that could be made public. If the government demonstrates to the FISC that these claims related to the Steele dossier amount to a nonsensical sideshow, then it is unclear what, if anything, the court ought to do. It might well do nothing. But there doesn’t appear to be anything stopping it from issuing a minute order stating (if true) that the court does not view the Nunes memo as having any adverse effect on the validity of its prior orders.

Could an opinion or order like this be declassified? The USA Freedom Act sets out procedures to declassify FISC opinions that “include[] a significant construction or interpretation of any provision of law.” The document envisioned here would obviously not fit into that category But there is also nothing preventing the government from declassifying other FISC materials.

Additionally, the FISC’s Rule 62(a)—upon which the New York Times’ motion relies—permits a judge who authored an opinion or order to request on his or her own motion that it be published, subject to a declassification review. For obvious reasons, the intelligence community is not in the habit of releasing documents confirming that a particular person is or has been the target of FISA orders—especially if an ongoing investigation is involved. But the Nunes memo has now been declassified, so for better or worse (probably worse), the FISA orders for Page are now officially acknowledged facts. So an order from the FISC that refers to FISA orders targeting Page would not—without more—be considered classified.

There is also a significant question as to whether the FISC ought to engage in what might be seen as a political act. As the two political branches continue to fight things out in an increasingly alarming manner, perhaps the last thing anyone needs is for an Article III court to join the fray. Yet this is a unique and extraordinary situation. A body of Congress has publicly called attention to a matter on the FISC’s docket and has accused the executive branch of misleading the court. Like it or not, the FISC has already been dragged into this dispute as the supposed victim of this ostensible deception. That dispute has taken a sharp and unfortunate political tone, but it is ultimately resolvable by facts: Either the FISC was misled or it wasn’t.

The FISC is uniquely positioned to resolve this question while still avoiding the hemorrhaging of additional classified information, as could potentially occur if the Democrats release their own counter-memo. There may, of course, already be other relevant developments on the FISC’s docket or other background facts of which the public is not aware. But if the court has the power to pull the political branches back from the brink by stating in an order what it simply knows to be true, then it should do so.

Sophia Brill is an associate in the litigation department at Morrison & Foerster LLP, in Washington D.C. She was previously an attorney in the National Security Division of the Department of Justice, where she worked on a range of legal policy and appellate matters. She is a graduate of Yale Law School.

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