“EXCLUSIVE: Infowars has obtained and is now releasing the secret FISA memo,” conspiracy theorist Alex Jones blared on Twitter Tuesday. Jones thought he had a mysterious four-page document authored by Republican Congressman Devin Nunes, who leads the House Intelligence Committee. The memo purportedly proves that intelligence officials abused surveillance powers authorized under the Foreign Intelligence Surveillance Act in investigating Trump’s campaign ties to Russia.
Jones had not, in fact, obtained the Nunes memo. But that confusion, and the fuss over the memo more generally, demonstrates just how little the American public understands about how FISA actually works. That misunderstanding makes it easy for the law to be twisted for partisan purposes.
Republicans who have viewed the Nunes document will have you believe it’s incredibly explosive. Congressman Matt Gaetz said it’s “jaw-dropping,” and called for its public release. Representative Steve King said it was “worse than Watergate.” Over the past week, thousands of Americans—as well as likely bots linked to Russia—have flooded Twitter with the hashtag #ReleaseTheMemo. Wikileaks even pledged a $1 million reward to anyone who leaked the document to the organization. Everyone from Breitbart and Fox News to Mike Cernovich has talked about it ceaselessly.
‘It’s easy to capitalize on Americans’ misunderstandings about the law for partisan purposes.’
Elizabeth Goitein, Brennan Center for Justice
Nunes has successfully manufactured a controversy designed to undermine the Justice Department’s investigation into the Trump campaign’s connections to Russia, and he used FISA to do it. (This also isn’t his first time.) The 1978 surveillance law is not only densely complicated, but operates via a secret court staffed by judges entirely appointed by the Chief Justice of the Supreme Court, making it a prime target for conspiracy theories.
“FISA is mysterious to most Americans. It’s a complex statutory scheme,” says Elizabeth Goitein, co-director of the Liberty and National Security program at New York University School of Law’s Brennan Center for Justice. “The government routinely puts out a lot of misleading descriptions of it. It’s easy to capitalize on Americans’ misunderstandings about the law for partisan purposes if someone wants to do that.”
The confusion over FISA has allowed Nunes and fellow Republicans to tell the public that intelligence officials abuse the law, while at the same time moving to expand its powers. Nunes, as well as Gaetz and King, all voted in favor of expanding surveillance authorities authorized under Section 702 of FISA earlier this month. They cast their votes while at the same time telling the public that FISA is terribly abused by the FBI and the Justice Department. So what’s really going on? Let’s start with Nunes’ memo.
Unlike the Alex Jones mix-up, the actual four-page document says, according to The New York Times, that intelligence officials improperly obtained a warrant to surveil Trump campaign advisor Carter Page, who is believed to be connected to Russia. Here’s where the mechanics of FISA come in.
Under Title 1 of the law, nicknamed “traditional FISA,” law enforcement must go before the Foreign Intelligence Surveillance Court (FISC) to receive a warrant to surveil an individual or group of people. To get that warrant, law enforcement must show probable cause that a person is an agent of a foreign power. That means the government had to demonstrate Page was acting as an operative for Russia.
“When we talk about traditional FISA and we say someone has to get a court order based on probable cause,” says Goitein, “that means there has to be some sort of criminal activity, such as espionage, in order to qualify.”
Nunes’ memo reportedly alleges that to obtain their warrant, law enforcement officials relied on research from a dossier written by former British intelligence officer Christopher Steele. Yes, that dossier, made public last year and subsequently revealed to be financed in part by the Democratic National Committee and Hillary Clinton’s campaign.
You can start to see rough outlines of the conspiracy theory already: Unverified research, funded by Democrats, led to the surveillance of an advisor to a Republican presidential candidate. But we don’t know what other evidence law enforcement may have relied on to obtain a warrant to investigate Page. While the dossier may have been cited, officials could have also included a significant amount of evidence collected by the US intelligence committee.
The House Intelligence Committee’s lead Democrat, Adam Schiff, has said he believed the memo was misleading. “It’s designed to push out a destructive narrative and further the attacks on the FBI. It’s basically a burn-the-house down strategy to protect the president,” he told Politico.
Nunes apparently wants it to look like the FISC judge issued the warrant on shaky grounds. But to assess whether that’s the case, you have to know again how FISA works.
All of the judges currently serving on the Foreign Intelligence Surveillance Court were appointed by a single person: Chief Justice John Roberts of the Supreme Court. The judges are tasked with overseeing requests for surveillance warrants. Most requests are granted, though the standard is usually higher to target a US person like Page, rather than a foreigner.
“They pretty infrequently turn down wiretap requests,” says Julian Sanchez, a senior fellow at the Cato Institute studying technology, privacy, and civil liberties.
The FISC isn’t necessarily free from abuses, and merits a healthy amount of skepticism, especially because so much of its process occurs behind closed doors. What we know usually comes from a small set of declassified opinions made public by the Director of National Intelligence’s office.
Nunes and fellow House Republicans have focused their fretting on traditional FISA, rather than Section 702.
But Title 1 of FISA is not the part most susceptible to abuse. Lost in the conversation over Carter Page is an entirely separate portion of the law, called Section 702. This section doesn’t involve a judge at all: It authorizes a series of warrantless surveillance programs, several of which were first made public by Edward Snowden. Section 702 is the piece of FISA that most worries civil liberties activists at organizations like the ACLU and the Electronic Frontier Foundation. Experts say it’s much more troublesome than traditional FISA, because it has far less oversight.
Nunes and fellow House Republicans have focused their fretting on traditional FISA, rather than Section 702. In fact, Nunes sponsored a version of a bill passed earlier this month that greatly expanded the surveillance powers authorized under Section 702. He and other Republicans turned down an amendment that would have imposed a warrant requirement on the FBI, requiring officials to go before a judge before it searched through communications pertaining to Americans.
“It’s a slightly different authority, but it’s very hard for me to enter the mental space of someone who really believes there’s this problem of political surveillance abuse and then is uninterested in imposing any additional safeguards on exactly the kind of thing they’re worried about,” says Sanchez.
If you just saw the #ReleaseTheMemo campaign, but didn’t know that Nunes is one of Section 702’s staunch supporters, you might think civil liberties was his primary concern. That’s the point. Public confusion over various parts of FISA allow him to dupe the public into believing he cares about anything other than derailing investigations into Russia’s meddling with the 2016 presidential campaign.
It’s ultimately hard to say exactly what Nunes’ “top secret” document really contains, because it hasn’t yet been released to the public. Despite cries from Twitter for its disclosure, it’s possible that it won’t ever see the light of day, because it could reveal how the FBI and other agencies gather intelligence. With that said, President Trump is reportedly inclined to release the memo, according to CNN.
So far, it looks like only Congress has viewed the secret report. Not even the agencies it implicates have seen it: Both the FBI and the Justice Department say they haven’t looked at the memo. And to be clear, neither has Alex Jones. InfoWars, the dubious site Jones’ runs, didn’t publish Nunes’ memo, but actually a Foreign Intelligence Surveillance Court opinion made public eight months ago. A simple Google search turns up the document on the Director of National Intelligence website. The opinion concerned Section 702, the part of FISA Nunes and his fellow Republicans just reauthorized and expanded.