A memo prepared by the Republican chairman of the House Intelligence Committee alleges that the FBI obtained a warrant to surveil a former Donald Trump campaign adviser under false pretenses. Meanwhile, a memo drafted by Democrats, which has not been made public, purports to fill in context that will expose the GOP version as misleading.
One way to referee competing claims about how the FBI got a warrant under the Foreign Intelligence Surveillance Act would be to release the agency’s application. Such a disclosure would be unprecedented, but the New York Times is asking the Foreign Intelligence Surveillance Court to make it, anyway.
“This motion that we filed on Monday, we think, is the first time anybody’s ever asked the court to actually unseal a specific warrant application,” said David Schulz, co-director of the Media Freedom & Information Access Clinic at Yale Law School and one of the attorneys representing the Times. “Those are typically very, very closely kept secrets because the government obviously doesn’t want people to know who they’re after.”
In this case, we already know who the FBI was after: Carter Page, a former foreign policy adviser on the Trump campaign, who was the target of an October 2016 FISA warrant and three subsequent warrants, each of which authorized surveillance for 90 days.
“The president himself has declassified a number of facts about the warrants,” Schulz said, “including the existence of the warrants, when they were sought, the basis for the warrants — at least in part. The reliance on the Steele dossier is unclear.”
Indeed, a hotly debated question that the FBI’s initial warrant application could help answer is the extent to which the agency depended on information contained in a Democrat-funded dossier produced by former British intelligence officer Christopher Steele.
According to the GOP memo, written by House members led by Rep. Devin Nunes (Calif.), the dossier “formed an essential part of the Carter Page FISA application,” even though the dossier was largely unverified by the FBI at the time.
What the Nunes memo fails to make clear is that Page was merely a bit player in a dossier that focused on Trump. That the FBI had not corroborated much of the information in the dossier doesn’t mean that the agency had not corroborated a few specific claims about Page or that the court granted a warrant based on faulty information.
The Nunes memo leaves the impression that the FISA court can be easily manipulated — that the FBI can present a bunch of sketchy accusations and get a warrant. Intelligence experts say the court is far more discerning, but the best way for the court to guard its reputation might be to release the FBI’s application to spy on Page (assuming, of course, that the application shows the FBI had to meet a high standard).
“It is in the best interests of the court and the public to ensure that accurate information is made available to enhance public oversight and confidence in the system,” said Jane Kirtley, a media law specialist at the University of Minnesota Law School. “That said, it is very, very difficult to persuade the FISA court to unseal anything. But the circumstances here might be persuasive, in light of the unusual actions of the president and the Republicans.”
Leonard M. Niehoff, a First Amendment expert at the University of Michigan Law School, agreed that the GOP’s unusual declassification of the Nunes memo makes underlying documents, such as the warrant application, fair game.
“The declassified Republican memorandum raises more questions than it answers, and it seems unlikely that anything short of a significant additional disclosure will allow the public to understand what happened and why,” Niehoff said. “The argument for withholding therefore focuses entirely on security and law enforcement concerns. Where the executive branch has determined those interests to be limited, it is hard to understand how they can outweigh that strong public interest in disclosure.”
Niehoff added that, in his view, “the Times has a respectable shot at getting at least some of what it wants, even if not all of it.”