Intelligence Oversight

How to Handle an Intelligence Committee Chairman Gone Rogue

By Quinta Jurecic, Benjamin Wittes
Tuesday, January 30, 2018, 6:38 PM

Barring an intervention from the heavens, the so-called Nunes memo will be #released at some point over the course of the next week, either because President Trump actively chooses to release it or because he does nothing for four more days.

The Justice Department has warned House Intelligence Committee Chairman Devin Nunes that #releasing the memo before allowing full review by the department and the FBI—which Nunes has denied—would be “extraordinarily reckless.” (Nunes has since allowed FBI Director Christopher Wray to view the document, though he has apparently disregarded Wray’s plea to keep the memo classified.) The department has also denied that there is any evidence of wrongdoing related to the FISA process—an allegation apparently central to the memo. Nunes’s Democratic counterpart Adam Schiff has excoriated the memo as “transparently cynical and destructive.”

If that wasn’t enough, little else about this episode gives the memo any more credence. Out of Nunes’s twelve GOP colleagues on the committee, only three would tell us that they had confidence in the memo’s claims. And because only the Gang of Eight have access to the intelligence behind the memo, the vast majority of the members of Congress who read the document had no way to evaluate its substance anyway. What’s more, Nunes initially refused to share the memo with Senate Intelligence Committee Chairman Richard Burr and Vice Chairman Mark Warner. According to Schiff, the House committee majority quashed a motion to share the underlying evidence with the full committee before voting to #ReleasetheMemo. Nunes reportedly refused to tell a colleague during the vote whether he has coordinated the memo with the White House.

And the President wants the memo public—so public it will be. The Washington Post reported this weekend that President Trump views the document as evidence of his mistreatment by federal law enforcement. He also sees it as a means by which to push out Deputy Attorney General Rod Rosenstein, whom he has distrusted since Rosenstein’s appointment of Special Counsel Robert Mueller: the memo reportedly targets Rosenstein’s role in approving an FBI request for an extension of a FISA warrant monitoring former Trump campaign advisor Carter Page. CNN now writes that Trump has made up his mind and that the memo’s release is a certainty over the next few days.

The result is that Schiff, Burr, and Warner now face the thorny question of how to handle the fallout: What should responsible intelligence committee leadership do when one of its own goes rogue—and goes rogue with the backing of a president whose concern for the matter is deeply self-interested?

Recent intelligence committee practice in both houses of Congress actually offers a good model for how to handle the Nunes shenanigans. The intelligence committees serve both as a oversight mechanism for the intelligence community and, when the leadership believes the community is behaving lawfully and being slimed anyway, as a validating mechanism for it. The idea has been that the committee leadership has access to all kinds of information that allow it to make dispassionate assessments, so when people raise questions about intelligence community conduct, the leadership sometimes gets together to issue bipartisan statements backing the integrity of the community’s actions. These statements have a great deal of power. They represent the bipartisan leadership of the oversight committees leveraging their knowledge to stamp approval on the community. They are critical to maintaining public confidence.

Back in 2011, when many were criticizing the CIA drone strike that killed radical cleric Anwar Al-Aulaqi—a U.S. citizen—then-Senate intelligence committee chairwoman and ranking member Dianne Feinstein and Saxby Chambliss issued a statement declaring: “Anwar al-Awlaki posed a significant and imminent threat to the United States. As a senior leader of al-Qa’ida in the Arabian Peninsula and an extremist preacher intent on recruiting radicals inside and outside this country, Awlaki declared war on the United States and inspired and planned attacks against us. We commend the agencies and individuals who found him and eliminated this dangerous threat and thank the Yemenis for their cooperation.”

In 2013, when the NSA was under fire during the Snowden revelations, Feinstein and Chambliss did it again, declaring of the NSA’s metadata collection program, “The executive branch’s use of this authority has been briefed extensively to the Senate and House Intelligence and Judiciary Committees, and detailed information has been made available to all members of Congress prior to each congressional reauthorization of this law.” They stated, “these lawful intelligence activities must continue, with the careful oversight of the executive, legislative and judicial branches of government.”

Shortly thereafter, this time joined by the House intelligence committee leadership of both parties, they announced, "We have conducted thorough oversight of FISA, and the business records provision in particular. We believe this provision has contributed substantially to our counterterrorism successes since its inception, and that it has been operated in a lawful, careful manner.” The four similarly issued a statement in response to a presidential review group that recommended changes to NSA authorities and practice.

These prior statements involved situations in which criticisms of the intelligence community were coming from outside actors: civil libertarians, human rights activists, leakers, and elements of the press. The point here is not whether the criticisms—or the defense against them—had merit. The point, rather, was that the leadership of the intelligence committees felt it necessary to deploy the authority that stemmed from their unique access to highly classified material to validate the propriety of agency conduct and policies.

This model is admittedly a little awkward when the person sliming the intelligence community is himself part of the intelligence oversight system—that is, one of the four people who in the past has acted as a validator. But the model is still correct. Even without Nunes, even against him, the remaining intelligence committee leadership is bipartisan. Burr, Warner, and Schiff have all acted honorably over the past year. All of them have credibility. Speaking together, they could issue a powerful statement as to how we should collectively understand the memo and its allegations.

So here’s what should happen: if the memo is #released, the three remaining leaders should—without necessarily #releasing any additional classified material—offer a high-level assessment of its credibility and truthfulness, and they should specifically offer their assessment of the propriety of the FBI’s conduct with respect to the matters the Nunes memo relates. If the three agree with the Justice Department that says it is “currently unaware of any wrongdoing relating to the FISA process,” they should say so. If they think there are issues that require study, they should say that too. If they believe that one of their own has gone rogue and that the intelligence community requires a defense from their colleague, they should offer that defense—just as the leadership did when it felt the community required a defense from Edward Snowden.