Vote to unveil FISA memo delivers Congress intelligence oversight win

Greg Nash

“Your heart will pound…your pulse will throb…at the dreadful presence of the weirdest visitor the world ever had.” Yes, for those of us who are vintage movie buffs, that was the famous lead into the 1951 cult classic, “Man From Planet X.”

The same promo could be used for a new production aptly named “Man From Rule X.” The man is House Intelligence Committee Chairman Devin Nunes (R-Calif.), and he has invoked a never before used rule to force the disclosure of his classified four-page memo on alleged abuses by the FBI.

The appearance of the “Man from Rule X” has produced the same images of terror in the eyes of Democrats who object that the forced release, over objections from the FBI, would destroy national security and effectively end life as we know it. Conversely, the GOP appears blissfully eager to strip away classification markings to deliver a blow against Trump critics.

{mosads}What is interesting is that most people have no idea what is in the document, but everyone is on the edges of their seats with its impending release. Many seem frozen like the character John Lawrence in the 1951 film, in which he said, “If I only were not so helpless before the voiceless threat of the unknown.”

The unknown, in today’s production, is Rule X and, specifically, Subsection 11(g), dealing with the House Permanent Select Committee on Intelligence. It is a rule that has, until now, only been discussed in the abstract by fringe elements in politics and the law. What if one of the intelligence committees actually engaged in oversight and refused to bury embarrassing information classified by the agencies?

Welcome to the weird world of Rule X. Subsection 11(g) of Rule X was created to give the intelligence committee credibility, or at least the appearance of credibility. Agencies have long been notorious for over-classification of information and the use of classification authority to shield officials from public exposure or criticism. Since this committee has oversight over intelligence agencies, the rule technically allows the members to vote to release classified information when the majority determines “that the public interest would be served by such disclosure.”

With such a vote, the president is notified of the action and is given five days to determine if the material should be released to the public. If a president objects, the committee can vote to refer the matter to the entire House of Representatives for a closed session and vote on the release of the information. However, past threats of actually using the rule have been treated as laughable by members of Congress and agencies alike. As the character Professor Elliot said in the movie, the very “statement has the tinge of fantasy.”

Indeed, the rule has come to mean the very opposite of its language. Subsection 11(g) has never been used in countless conflicts with intelligence agencies which simply refused to declassify information. That lack of use of has reaffirmed the widely held view of congressional committees being “captured” by the agencies they are supposed to oversee. The intelligence committees have a steady revolving door of staff between Congress and the agencies. Moreover, members often use closed sessions to remove embarrassing conflicts or scandals from the public view.

This is why the vote on Jan. 18 to activate Subsection 11(g) was accompanied by a virtual “Wilhelm scream” heard from Capitol Hill to Langley to Quantico. The “Man From Rule X” may be a somewhat flawed character, as to his motivations in taking this step. However, regardless of the content of the memo, the act of defiance under this rule has been too long in coming.

Moreover, the subject is precisely the area where civil libertarians have long asked for action: the Foreign Intelligence Surveillance Act. Its “secret court” was structured to circumvent the Fourth Amendment’s probable cause standard for searches and seizures (it was replaced by probable cause to believe someone might be a “foreign agent,” which is broadly defined). The ease of getting FISA orders has resulted in a record of tens of thousands of applications with only a couple denials in the history of the act.

Not surprisingly, while FISA was supposed to be a narrow exception to conventional warrants, the Justice Department has used it as an easy alternative to conventional court. Not only is the standard almost impossible not to satisfy but, unlike standard warrants, the surveillance — even abusive or groundless searches — can be kept secret forever.

Now, some members of Congress believe that the FBI abused FISA to launch a national security investigation with little real evidence. That is exactly what civil libertarians have argued for decades with no response from Congress. The target this time was a close associate of then-candidate Donald Trump.

Some media reports indicate that the memo shows the FBI knowingly used a dossier funded by the Clinton campaign and the Democratic National Committee to secure the FISA order. The allegation is that the FBI did not reveal to the court the questionable source of the dossier or the lack of verification of its information. Ironically, it is not clear if this would have really mattered, since Congress set the standard for FISA so low. Yet, civil libertarians are not complaining.

The “Man From Rule X” is finally challenging the intelligence agencies and asserting the right of Congress to release information in the public interest over agency objections. Ideally, with this vote, the use of the rule will no longer be viewed as sheer fantasy and Congress will engage in serious oversight of these agencies, including the greater disclosure of information in the public interest.

So the importance of this conflict may prove far greater than the partisan maneuverings in Congress over the Russian investigation. The use of Rule X to actually disclose information could be a gamechanger in the relationship to federal agencies in this area, or as the character Dr. Mears said in the old cult film, “a man who controls this formula controls the industry of the world.”

Well, perhaps not control of the world, but some real oversight of intelligence agencies would be worth watching.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

Tags Congress Devin Nunes Donald Trump Government Intelligence Surveillance

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