One of the gravest and most damaging abuses of state power is to misuse surveillance authorities for political purposes. For that reason, The Intercept, from its inception, has focused extensively on these issues.
We therefore regard as inherently serious strident warnings from public officials alleging that the FBI and Department of Justice have abused their spying power for political purposes. Social media last night and today have been flooded with inflammatory and quite dramatic claims now being made by congressional Republicans about a four-page memo alleging abuses of Foreign Intelligence Surveillance Act spying processes during the 2016 election. This memo, which remains secret, was reportedly written under the direction of the chair of the House Permanent Select Committee on Intelligence, GOP Rep. Devin Nunes, and has been read by dozens of members of Congress after the committee voted to make the memo available to all members of the House of Representatives to examine in a room specially designated for reviewing classified material.
The rhetoric issuing from GOP members who read the memo is notably extreme. North Carolina Republican Rep. Mark Meadows, chair of the House Freedom Caucus, called the memo “troubling” and “shocking” and said, “Part of me wishes that I didn’t read it because I don’t want to believe that those kinds of things could be happening in this country that I call home and love so much.” GOP Rep. Scott Perry of Pennsylvania stated: “You think about, ‘Is this happening in America or is this the KGB?’ That’s how alarming it is.”
This has led to a ferocious outcry on the right to “release the memo” – and presumably thereby prove that the Obama administration conducted unlawful surveillance on the Trump campaign and transition. On Thursday night, Fox News host and stalwart Trump ally Sean Hannity claimed that the memo described “the systematic abuse of power, the weaponizing of those powerful tools of intelligence and the shredding of our Fourth Amendment constitutional rights.”
Given the significance of this issue, it is absolutely true that the memo should be declassified and released to the public — and not just the memo itself. The House Intelligence Committee generally and Nunes specifically have a history of making unreliable and untrue claims (its report about Edward Snowden was full of falsehoods, as Bart Gellman amply documented, and prior claims from Nunes about “unmasking” have been discredited). Thus, mere assertions from Nunes — or anyone else — are largely worthless; Republicans should provide American citizens not merely with the memo they claim reveals pervasive criminality and abuse of power, but also with all of the evidence underlying its conclusions.
President Donald Trump and congressional Republicans have the power, working together or separately, to immediately declassify all the relevant information. And if indeed the GOP’s explosive claims are accurate – if, as HPSCI member Steve King, R-Iowa, says, this is “worse than Watergate” — they obviously have every incentive to get it into the public’s hands as soon as possible. Indeed, one could argue that they have the duty to do so.
On the other hand, if the GOP’s claims are false or significantly misleading – if they are, with the deepest cynicism imaginable, simply using these crucial issues to whip up their base or discredit the Mueller investigation, or exaggerating or making claims that lack any evidentiary support, or trying to have the best of all worlds by making explosive claims about the memo but never having to prove their truth — then they will either not release the memo or they will release it without any supporting documentation, making it impossible for Americans to judge its accuracy for themselves.
Anyone who is genuinely concerned about the claims being made about eavesdropping abuses should understand why the issue of evidence is so critical. After all, the House, Senate, and FBI investigations into any Trump collusion with Russia have so far proceeded with many startling claims in the media, but to date little hard evidence for the public to judge. Nobody rational should be assuming any claims or assertions from partisan actors about the 2016 election are true without seeing evidence to substantiate those claims.
The good news is there are at least four easy ways for congressional Republicans and/or Trump to definitively prove that all the right’s darkest suspicions about the Obama administration are true. If this memo and the underlying documents prove even a fraction of what GOP politicians and media figures are claiming about them, then what could possibly justify its ongoing concealment? Any or all of these methods should be promptly invoked to ensure that the public sees this evidence:
1. Trump can declassify anything he wants.
All classification by the U.S. government has no basis in laws passed by Congress (with one tiny exception that is irrelevant here). Rather, all classification is based on presidential executive orders, which rely on the president’s constitutional role as commander in chief of the armed forces. According to the Supreme Court, the presidential power “to classify and control access to information bearing on national security … flows primarily from the constitutional investment of power in the president.”
That means presidents can also declassify anything they chose to — for any reason or no reason — as they have done in the past. George W. Bush, under pressure in 2004, declassified the section of the 2001 presidential daily brief headlined “Bin Laden Determined to Strike in U.S.” Barack Obama declassified the Justice Department memos produced during the Bush presidency on the legality of torture.
Thus if the House Intelligence Committee merely releases a version of its memo without the supporting documentation, that won’t be just because they don’t want Americans to see it – it will be because Trump doesn’t want us to see it either. Note that GOP House members are insistent that releasing the memo and the underlying source material would not remotely harm national security:
Releasing this classified info doesn't compromise good sources & methods. It reveals the feds' reliance on bad sources & methods.
— Lee Zeldin (@LeeMZeldin) January 18, 2018
So what possible justification is there for Trump to continue to conceal this alleged evidence of massive criminality from the American people by hiding it behind “classified” designations? Indeed, it is illegal to abuse classified designations to hide evidence of official criminality: so not only can Trump declassify such evidence, one could argue that he must, or at least should.
2. The House (and Senate) intelligence committees can declassify any material they possess.
According to the procedural rules of both houses of Congress, their intelligence committees can declassify material in their possession if the committee votes that such declassification would be in the public interest. It is then declassified after five days unless the president formally objects. If the president does object, the full chamber votes on the question.
It is true that – in a measure of how embarrassingly deferential Congress is to the executive branch – neither the House nor the Senate intelligence committees has ever utilized this power, so it’s impossible to know how this gambit would play out in practice. But if Trump refused to release proof of the Obama administration’s misdeeds, congressional Republicans should have a straightforward way to overrule him.
3. The Constitution protects members of Congress from prosecution for “any speech or debate in either House.”
Members of Congress have legal immunity for acts they commit as part of the legislative process. Article I, Section 6, clause 1 of the Constitution states that “for any speech or debate in either House, [Senators and Representatives] shall not be questioned in any other place.” It is this constitutional shield that protected Sen. Mike Gravel of Alaska from legal consequences in 1971 when he read sections of the Pentagon Papers during a meeting of the Senate Subcommittee on Public Buildings and Grounds, and then placed the rest of the Pentagon Papers into the Congressional Record.
It’s true that members could face legal consequences for ancillary acts — perhaps if they unlawfully removed the relevant material from the congressional SCIF. But they could go to the House floor and describe both the memo’s revelations and the underlying evidence for it without any fear of legal consequences.
If the memo really proves what they claim, it would seem to be their patriotic duty would compel them do this. Ordinary citizens — like Daniel Ellsberg, Edward Snowden, and Chelsea Manning — have risked prison in order to expose what they believed were serious official crimes; these members of Congress can do this without any of those consequences. So what justifies their failure to do this?
4. Republicans can leak everything to the news media.
If for some reason Trump and the congressional leadership refuse to use any of the above options to vindicate themselves, a brave member of Congress could turn whistleblower and transmit the classified proof of the GOP’s claims about the memo to the news media.
Many outlets now have secure methods of sending sensitive material to them, such as Secure Drop. Those for The Intercept can be found here. (All leaking entails risks, as we describe in our manual for whistleblowers.)
So that’s that. All Americans, particularly conservatives, should ask every Republican making spectacular assertions about this memo when they will be using the above ways to conclusively demonstrate that everything they’ve said is based in rock-solid fact.
If they do not, Republicans will conclusively demonstrate something else. They will prove conclusively that all of this is about them shamelessly making claims they do not actually believe, fraudulently posturing as caring about one of the most vital, fundamental issues facing the United States: how the U.S. government uses the vast surveillance powers with which it has been vested.