Forget the pundits: the real significance of the Nunes memo

Forget the pundits: the real significance of the Nunes memo

The memo is both more and less than its hype.

After two weeks of wrangling, hyping and counter-accusations, the House Permanent Select Committee on Intelligence’s memorandum on the FBI, known as the Nunes memo, has finally been released. Pundits who know little about national security but purport to know everything political, have weighed in on the memo and what it means. When the memo and the accompanying cover letter is read, its true significance becomes apparent. What follows explains the memo from a national security perspective—politics aside.

The most important thing is that every American read the memo and the White House cover letter for him- or herself.

A number of media outlets will let you read the memo without actually downloading it—including a number of sites who cynically seek to capture your page-clicks while simultaneously denouncing the memo itself.

What the memo is

The “memo” is actually an internal committee memo from the majority staff to the majority members of the committee. That’s why it’s referred to as the “Republican” memo. It is widely reported that the memo was written by Chairman Devlin Nunes after he reviewed classified documents provided to the committee by the FBI. The memo itself is unsigned. There is speculation that the memo was not released to the minority members of the committee for fear of leaks to the press.

The memo is a summary of findings from classified documents Nunes was given access to. It is not those document themselves. This is secondary information.

What is The House Permanent Select Committee on Intelligence (HPSCI)?

The committee was formed in 1977 following the Pike Committee's investigation of illegal activities by the U.S. Central Intelligence Agency (CIA) and the Federal Bureau of Investigation (FBI). Yes, we’ve been here before. The Pike Committee’s report was never officially released—but it was leaked to the press.

Congress decided to form permanent intelligence committees to oversee the activities of the intelligence community in both the House and Senate. The Democrats controlled Congress at the time.

The intelligence community was (and presumably still is) quite skeptical of Congress’ ability to keep a secret. Member of the committees are given security briefings and allowed to see the classified material in a secure vault—but not remove it. That’s why Nunes wrote the document from memory.

Why it needed to be “released”

Classified information remains classified even when publicly released by an unauthorized person, such as Bradley Manning or Air Force Sergeant Reality Winner. This may seem odd to people without a security clearance but it is drilled in to anyone who has been given access.

National security information is properly classified under executive orders dating back to President Harry Truman. Original Classification Authority is given to federal Department heads. The Attorney General, for example, has such authority. Everyone else has derivative authority based on classification guides. Things get classified in the national interest and exactly what can be classified and how is listed in the guides.

Before President Carter, there was really no system for declassifying national security information. In his Executive Order 12356, Carter began a general declassification system. Material would be automatically declassified on a schedule that could stretch up to 30 years. Some information, such as sensitive intelligence sources and methods, were exempt from automatic declassification.

If classified information leaked by people like Manning and Winner became declassified it would, in effect, give them the authority to decide for themselves what needed to be declassified. They do not have such authority.

By keeping leaked materials classified, the government does not confirm the validity of the leaked documents. There remains a question about the authenticity of the material.

In order to release the Nunes memo, Congress could have asked the Justice Department to declassify it. Since AG Sessions has recused himself from anything to do with the Mueller investigation, such a request would likely have fallen to the FBI. Nunes decided instead to appeal directly to the president, by whom all material is classified. The cover letter from the White House details why the president has such authority.

What’s classified here?

When you read the memo you may be struck by its blandness. What’s the big deal here? There’s really little new information and no classified content. We already knew that the FBI had sought warrants from the FISA Court based on the Steele dossier. What we didn’t know, however, was who in the FBI signed off on the application for the warrants or renewed the requests. With the names of almost every senior official at the FBI on those requests (except Director Wray), it’s no wonder the FBI fought a rearguard action claiming harm to national security and asking for their names to be redacted.

The only thing classified about this memo is the acknowledgment of Steele as an FBI source.

Presumably, that relationship is why the memo was classified TOP SECRET/NOFORN. It would be a derivative classification based on the documents Nunes read. The relationship remained classified despite the fact that Steele himself disclosed the relationship to the press.

Why is there a FISA Court anyway?

Back in the mid-1970s, it became clear that oversight of the CIA and FBI was needed. Think of the wiretapping of Martin Luther King or the assassination of foreign leaders. In 1978 the Democrat-controlled Congress passed the Foreign Intelligence Surveillance Act (FISA). Sen. Ted Kennedy introduced the bill.

In order to wiretap American citizens—or even others living on U.S. soil—intelligence agencies need a warrant. But because a public hearing for a warrant would jeopardize ongoing investigations, a secret court, known as the FISA Court, was set up.

That’s why we have a FISA Court: to put some controls on the FBI and the CIA. When you read the Nunes memo, you see that the FBI was “gaming the system” by not presenting the court with the full picture of the information they were submitting to support getting a warrant—or to renewing the warrant three more times.

What needs to happen next

Everyone in the FBI who is named in the memo and is still working there should immediately have their security clearances suspended pending further investigation. That’s standard practice within the Department of Defense. That’s what happened to Manning and Winner and a host of others. If that means they can’t do their job, they should also be suspended from their job, as the situation warrants.

The FBI and the minority members of the HPSCI have claimed that the Nunes memo—like the FISA applications themselves—have omitted material facts. Fine. Bring those facts to light as well. Any documents not given to the House committee by the FBI should be. Anything that can be declassified based on the declassification of the Nunes memo should be.

The principles today are the same as they were 40 years ago. Federal agencies necessarily operate in secret to protect the national interest. Precisely because they do operate in secret, they require strong oversight in the public interest.