Congress Intelligence

Don't Recklessly #ReleaseTheMemo

Susan Hennessey, Shannon Togawa Mercer
Wednesday, January 24, 2018, 9:14 AM

Late last week, word surfaced of an incendiary memo authored by House intelligence committee Chairman Devin Nunes and his staff. The memo supposedly alleges surveillance abuses by the intelligence community in general and the FBI specifically. The actual allegations aren’t entirely clear. Reportedly, while the memo itself is classified, it does not contain the more sensitive underlying intelligence information justifying its conclusions.

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Late last week, word surfaced of an incendiary memo authored by House intelligence committee Chairman Devin Nunes and his staff. The memo supposedly alleges surveillance abuses by the intelligence community in general and the FBI specifically. The actual allegations aren’t entirely clear. Reportedly, while the memo itself is classified, it does not contain the more sensitive underlying intelligence information justifying its conclusions. At least some of that information is part of a subset of classified information deemed so sensitive that it is available only to the so-called “Gang of Eight” in Congress: the majority and minority leader in the House and Senate (Mitch McConnell, Chuck Schumer, Paul Ryan and Nancy Pelosi) and the chair and ranking members of the House and Senate intelligence committees (Nunes, Adam Schiff, Richard Burr and Mark Warner). The memo is instead a set of top-line conclusions about what the more sensitive intelligence says.

Initially, the timing of the rumor—hours before the president signed the FISA Section 702 reauthorization bill into law—created some unusual alliances, with anti-702 activists on the left and Trump-supporters on the right pushing a shared hashtag: #ReleaseTheMemo. Much of the left-wing enthusiasm for releasing the memo has subsided now that the president has signed the 702 reauthorization bill. Calls from the right, however, have only grown stronger. A number of House members made the rounds on conservative media over the weekend claiming that the contents of the memo are a shocking vindication of President Trump’s most serious allegations against the intelligence community and, somehow, discredit the entire Mueller investigation.

Last week, the HPSCI Republicans voted to allow other House members to review the memo (albeit in a secure location in the Capitol building). Since then, a number of Republicans have further fueled the #ReleaseTheMemo fire. The president now reportedly favors declassifying the Nunes memo if the House votes for its release. From this melee, a meme has emerged across the partisan spectrum: the memo might as well be released. After all, if the memo is a farce, releasing it will allow the public to debunk its contents. On the other hand, if there really are surveillance abuses the American people have a right to know.

This is the wrong way to think about this kind of memo.

The logic of that argument oversimplifies the realities of releasing and declassifying intelligence. First, partial information can be misinformation. Adam Schiff, ranking member of the House intelligence committee, has alleged that the memo is “highly distorted spin by Nunes … [that] distorts the underlying materials and has presented Members with a very misleading impression of what those materials show.” Schiff also described it as “rife with factual inaccuracies and referencing highly classified materials” that most of the Republicans on his committee “were forced to acknowledge that they had never read.”

If Schiff is right, that means that the memo itself is not the full story—and in fact, is closer to a lie. It is the work of a small group of individuals, purporting to synthesize and draw conclusions from information that is not available for scrutiny from most of Congress or the public. And that account is being heavily disputed by others who have seen, but cannot reveal, the underlying intelligence. Jerry Nadler, ranking member on the House Judiciary Committee, has said that he reviewed much of the underlying information for the Nunes memo—though presumably still a subset less-limited than to the Gang of Eight—and believes it presents “a very different story” from the one Nunes has put forth. This means that releasing the memo alone will not inform the public, but risks misinforming the public.

Moreover, releasing the memo could pose genuine national security risks if it reveals sensitive sources and methods. It could also inflict more generalized harms if it creates additional confusion in the surveillance debate and erodes confidence in both the intelligence community and congressional oversight. The mere fact that something is false doesn’t necessarily mean it should stay secret. But there are particular risks that this form of bad information can incentivize “corrective”—but no less damaging—leaks of sensitive information. Consider, for example, that the leaks of highly classified FISA information regarding calls between Michael Flynn and Sergei Kislyak only emerged after both Flynn and the White House had affirmatively misrepresented the contents of those calls to the public. Of course, there are now risks that allowing the memo to go unreleased will only allow conspiracy theories to flourish. If, on the other hand, releasing the memo gives rise to a flood of new misinformation, then the choice is truly between a rock and a hard place.

There are, to put it bluntly, more than a few indications that this memo is a bad-faith attempt to vindicate a reckless and dishonest president. But for argument’s sake, let’s take Nunes at his word. If a member of Congress believes he has seen indications of surveillance abuses that he believes should be brought to the attention of the American public, but also wants to safeguard sensitive sources and methods, what should he do?

On basically any set of facts, authoring an inflammatory memo and then fanning a Twitter hashtag campaign for its release should not be on the list of responsible options. Instead, a member in Nunes’s position should author a bipartisan report or avail himself of the other tools of unified congressional oversight. Short of that, he might at least issue a finding by the majority of the committee. He might refer his findings to the relevant inspector general—here, that would seem to be the inspector general of the Justice Department—for investigation. He might even introduce legislation aimed at preventing the perceived abuse in the future.

There is no single path, but there are plenty of options. Nunes has availed himself of none of those options. Not only hasn’t he referred his findings to the Justice Department’s inspector general, but he is actively refusing to share the memo with the FBI as its leadership has requested. Nunes didn’t seek and certainly has not obtained bipartisan buy-in on his own committee. Indeed, as Quinta Jurecic and Benjamin Wittes report, it isn’t even clear to what extent his fellow Republicans on the committee actually endorse the underlying findings. (Recall that few are likely privy to the underlying source materials.)

This brings us to President Trump. What the White House does now is especially important.

Absent a congressperson or senator recklessly reading the memo on the floor under protection of the speech or debate clause, House procedure requires that the executive branch provide input regarding declassification. This means that the president has significant influence over whether, and in what form, this document becomes public. Early remarks from the White House indicated that President Trump supports the release of the memo that even the FBI and the Justice Department have yet to see. White House press secretary Raj Shah later tried to walk that position back by saying that interagency and national security reviews will take place.

This wouldn’t be the first time there was significant daylight between the president’s statements and his staff’s representations. So, the extent the White House will follow proper process remains an open question.

It is critical that the president responsibly discharge his office by allowing for a careful examination of agency equities that balances the necessity of the disclosure of information to the public against the costs of compromising valuable intelligence sources and methods. That evaluation requires a conversation with implicated agencies, both to gather all relevant information before the decision to disclose and also, in the case of a decision to declassify, to adequately allow them to prepare for and mitigate any damage caused by disclosure.

It matters that process is followed, especially when declassifying information—we have witnessed time and time again the fragility of intelligence operations. For a recent and illustrative example, look no further than the case of former CIA officer Jerry Chun Shing Lee and his disclosure of the names of countless CIA informants to the Chinese government. The decision here is fraught with operational consequences.

It is especially important that Trump adhere to proper protocol in this instance, where his own political interests may conflict with national security interests. After all, the president’s most ardent supporters are clamouring for the memo’s release; #ReleaseTheMemo is this week’s conservative reveille. Sean Hannity claims the memo exposes “the systematic abuse of power … and the shredding of our Fourth Amendment constitutional rights” (and InfoWars’s Alex Jones has triumphantly “released” a previously declassified FISC opinion that he perplexingly seems to believe is the Nunes memo).

One might hope that the president recognizes that the national security obligations of his office require more than hashtag consideration. But, in light of Nunes’s irresponsible gambit and Trump’s political interests and personal sensibilities, the die may already be cast. If the memo is indeed released, the Democrats on the House intelligence committee should work to swiftly release their own account of the relevant information. Ultimately though, it may be congressional Republicans who find themselves on the hook for cleaning up Nunes’s mess—in particular, the three remaining GOP members of the Gang of Eight. They have access to the underlying classified information and the credibility as not being partisan opposition. Thus far, Ryan has demurred only that House rules should be adhered to. Meanwhile, there’s been conspicuous silence from Burr—who, to his credit, has swatted down Nunes-lead conspiracy theories in the past—and McConnell in the Senate. It is now incumbent upon Burr, McConnell and Ryan to review the underlying information and clearly state for the record whether they believe it validates Nunes’s claims or not.

Susan Hennessey was the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She was a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.
Shannon Togawa Mercer is a senior associate at WilmerHale. Her practice focuses on complex global data protection, privacy, and cybersecurity matters. Ms. Togawa Mercer has extensive experience counseling clients on cross border data protection and privacy compliance as well as cyber incident response. She has practiced in London and Washington D.C. and previously served as Managing Editor and Senior Editor at Lawfare. Ms. Togawa Mercer also served as National Security and Law associate at the Hoover Institution.

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