Trump Is Right to Declassify FISA Documents, but Political Process Is Complex

September 13, 2018 Updated: September 13, 2018

Commentary

During a Feb. 7, 2018, interview on Fox & Friends, investigative journalist Sharyl Attkisson commented on revelations about ongoing abuses of the FISA court:

“The surveillance abuses that we are now seeing are tied into a pattern of 10 to 20 years of bad actors in the intelligence community that … have been presenting bad evidence to the FISA court … to obtain illegal warrants or warrants that would not otherwise be granted.

“The reason they didn’t want Donald Trump—it’s not so much his political positions and how much they hate him—he was the one guy, that once elected, they feared would come in there and peer at what they’ve been doing the past 10 to 20 years. … It’s bigger than the 2016 election.”

As one who has herself been subjected to intelligence community surveillance, Attkisson’s warning merits attention. It would also help explain the incredible resistance we have witnessed regarding the declassification of materials from the Department of Justice (DOJ).

The protection of classified material is crucial to national security and concerns about that should be taken seriously. Of long-standing focus with regard to the declassification process has been the protection of sources and methods. This was explicitly noted by White House chief legal counsel Don McGahn in a cover letter upon release of the House intelligence committee memo:

“Though the circumstances leading to the declassification through this process are extraordinary, the Executive Branch stands ready to work with Congress to accommodate oversight requests consistent with the applicable standards and processes, including the need to protect intelligence sources and methods.”

McGahn is correct in his stated concerns. But what happens when “sources” are fictitiously created, using improper or even illegal “methods” that hide behind classified designations as a means to prevent detection.

We know from the FISA application to spy on Trump campaign adviser Carter Page that both the controversial Steele dossier, which alleged collusion between Trump and Russia, and media reporting were used as “sources.” It appears that individuals within the FBI may have been the underlying sources for the some of that very same media reporting. Concerns about unauthorized leaks were raised by the DOJ’s internal inspector general in a recent report:

“We have profound concerns about the volume and extent of unauthorized media contacts by FBI personnel that we have uncovered during our review,” the report says.

Against this backdrop, White House lawyers are reportedly reviewing documents for possible declassification. The Carter Page FISA application and communications of high-ranking DOJ official Bruce Ohr with the FBI both are repeatedly mentioned as targets for declassification.

Just as in the declassification of the House Intelligence memo, the question of sources and methods also comes into play in the Page FISA. Officials are reportedly weighing the merits of wholesale declassification versus partial redactions.

The Daily Caller reported that Emmett Flood, who is reportedly leading the review process, “and his colleagues within the counsel’s office are generally opposed to declassification, out of the concern for the precedent it would set, as well as any unintended consequences of making the information public.”

There is an underlying reason why Flood is handling this process. McGahn recused his entire staff last summer from working on matters related to the Russia investigation. The decision was apparently made as the result of the significant involvement both he and members of his staff had in the Michael Flynn case and the firing of former FBI Director James Comey. In what feels like a strategic move by special counsel Robert Mueller’s team, McGahn reportedly met with them for at least 30 hours of questioning.

McGahn’s involvement in the House Intelligence memo review technically originated from Gang of Eight Congressional oversight, through a request from House Intelligence Chairman Devin Nunes (R-Calif.). The current request for declassification of documents is originating from members of the House, thus likely providing a legal delineation for McGahn.

Underneath all of this lies a basic struggle: An entrenched bureaucracy or so-called deep state that appears openly in opposition to President Donald Trump and his backers within Congress.

As a result, there’s been increasing clamor for declassification of multiple documents. While it’s true that the president holds the constitutional power to do so, practical considerations almost certainly intrude on the process.

There are political ramifications should a declassification request be refused. Trump might be forced to fire that individual for insubordination, turning what had been a declassification process suddenly into a political firestorm.

Additionally, there is a secondary issue of precedent—one that originates with the requesting source. One concern is that members of Congress might demand declassification of intelligence documents from the executive branch in the future.

Politicization of the entire classification process becomes a real risk.

There is also an issue of timing. Supreme Court nominee Brett Kavanaugh is nearing confirmation with a vote just weeks away. Imagine the questions he will face should the declassification occur before his confirmation. There may be some horse-trading taking place on this very issue. Midterm elections are also probably part of the calculus.

Another concern relates to the issue raised in the Attkisson interview. If declassification takes place and highlights ongoing abuses of the FISA court, what transpires next? Do past cases then require review, and if so, how far back does one go?

In many respects, we find ourselves in uncharted territory and a level of uncertainty reigns.

Trump wants to see documents declassified. Some members of Congress have been calling for the same. Meanwhile, the DOJ appears adamantly opposed and members of the president’s own legal counsel and staff appear to be in opposition—at least in certain matters of precedent and rightly held concerns regarding the law of unintended consequence.

Why Declassification Is Needed

Personally, I’m in favor of sunlight but it’s worth noting that external considerations exist. The declassification process is likely not as simple in practical terms as it may appear. If it was, Trump probably would have ordered a declassification of the Page FISA before the traditional 60-day quiet period leading into the midterm elections.

Some have raised a possible outcome I tend to agree with. The use of Part I, Section 1.7 of Executive Order 13526, which governs classification processes:

Sec. 1.7. Classification Prohibitions and Limitations. (a) In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to:

(1) conceal violations of law, inefficiency, or administrative error;

(2) prevent embarrassment to a person, organization, or agency;

(3) restrain competition; or

(4) prevent or delay the release of information that does not require protection in the interest of the national security.

Items 1, 2 and 4 all likely apply but declassification appears most likely to occur under item 1 and/or 2.

Newly released texts from Dec. 15, 2016, between then-FBI Agent Peter Strzok and his mistress, then-FBI counsel Lisa Page, both of whom worked on the FBI’s counterintelligence investigation against Trump, provide a relevant example of applicability.

In the first text, Page notes a pending article from the New York Times; “Oh, remind me to tell you tomorrow about the times doing a story about the rnc hacks.” Strzok responds; “And more than they already did? I told you Quinn told me they pulling out all the stops on some story…”

Strzok then describes potential sources for leaks to the media; “Think our sisters have begun leaking like mad. Scorned and worried, and political, they’re kicking into overdrive.” He finishes with this; “And we need to talk more about putting C reporting in our submission. They’re going to declassify all of it…”

Page responds; “I know. But they’re going to declassify their stuff, how do we withhold…”.

Strzok, appearing to acknowledge her concerns, texted: “We will get extraordinary questions. What we did what we’re doing. Just want to ensure everyone is good with it and has thought thru all implications.”

“Sisters” may refer to one of the other 17 intelligence agencies; “C” is almost certainly classified.

“Submission” may refer to materials included in FISA renewals on Carter Page, which was renewed a few weeks after this particular conversation on Jan. 12, 2017.

Although this is just one example among many, the newly released texts appear to illustrate how the intelligence community was able to shelter itself behind classified information. It may finally be time to see that shelter removed.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.