[#NotANothingBurger] Ten Ethics Observations On The Nunes Memo

an alternative perspective on the Nunes memo from a non-Trump-fan legal ethicist

https://ethicsalarms.com/2018/02/02/ten-ethics-observations-on-the-nunes-memo/

The controversial Devon Nunes memo was released. You can read it here.

Observations:

1 The most important thing to keep in mind is that the information and conclusions in the memo are incomplete. Claims from the Right that it describes a Watergate level scandal are. at best, premature. However, the immediate and furious protests from the Left that it is a “nothingburger”—you know, like Obama IRS scandal that passed another stage today—is pretty damning. What the memo suggests is deeply disturbing, and possibly—too early to tell–frightening. For any American, and certainly for any journalist, to try to brush it off at this point as insignificant is proof of corruption by hyper-partisanship.

2. The resistance to releasing the memo from the FBI as a danger to “national security” appears deliberately misleading, in light of the memo itself. This, in turn, unavoidably makes , or should make, any objective reader suspicious. In retrospect, the warning sure looks like a false characterization as a desperate effort to keep an unethical episode covered up. The furious FBI attacks on the memo have to be regarded in this light: if the memo was fair and accurate, would the FBI react this way? Yes. If it was unfair and inaccurate, would it react the exact same way? Yes.

3. Rep. Trey Gowdy said today that the memo in no way undermines the Mueller investigation. I don’t see how he could say that, or why. Of course it does; the memo gives credence to the accusation that the entire Russian collusion theory was nurtured by anti-Trump figures in the Justice Department and the FBI before and after the election.

4. To reduce the memo to its simplest form: The infamous Steele dossier—the one James Comey described to Congress, under oath, as “salacious and unverified”— was included as l part of the initial and all three renewal FISA applications against Carter Page. Andrew McCabe, the Deputy Director of the Federal Bureau of Investigation who just resigned under fire, testified that no FISA warrant would have been sought from the FISA Court without the Steele dossier information. Yet The initial application and the renewal applications did not disclose the role of the Democratic National Committee and the Clinton campaign in generating the dossier by paying $160,000 to Christopher Steel to compile it, nor did the applications show that Steele was working for Fusion GPS and Glenn Simpson, who was paid by the law firm representing the DNC. In other words, part of the evidence presented to the court to justify surveillance of a member of the Trump campaign, and by extension the campaign itself, was created by someone working on behalf of the DNC and Clinton campaign.

5. The court, says the memo, in order to protect “the rights of Americans” needs to see “information potentially favorable to the target of the FISA application.” I don’t see how anyone can disagree with this, or the fact that the origins of evidence being presented to justify not only surveillance of a citizen but of a Presidential campaign arose from the opposing campaign had to be presented to the court. It wasn’t. That was illegal.

6. Thus the FBI obtained permission from the Foreign Intelligence Surveillance Court to surveil Trump aide Carter Page based in part on information from the Christopher Steele dossier, a document commissioned by the Clinton campaign and the Democratic Party. Whether the dossier was the primary basis the warrant, as the memo alleges, or only used ‘in part, the fact the FBI chose to use it in its application creates a prima facie case that it didn’t have enough other evidence to justify surveillance. I remember enough of my criminal law practice days to know that would be enough to invalidate a warrant and anything it uncovered. It makes the whole Mueller investigation potentially “the fruit of the poisonous tree.”

7. This places in proper perspective some of the anti-Trump spin, like this despicable tweet from Evan McMullen, the supposedly “ethical” Republican who attracted some protest votes for President in 2016:

“The inclusion of the dossier in FISA applications may represent an unprecedented collision of opposition research and national security, but remember: the cause of that was a presidential candidate’s likely collaboration with the very foreign adversary attacking our democracy.”

Nice.

This is why we have the Fourth Amendment that prohibits unreasonable searches and seizures, and why the exclusionary rule and “the fruit of the poisonous tree” doctrines were created by a liberal Supreme Court—to prevent law enforcement from cutting Constitutional corners and violating civil rights when they decide that a crime was “likely.” McMullen, and all the defenders of what the FBI appears to have done here, are adopting the “ends justifies the means” philosophy that liberals once opposed.

8.Kimberly Strassel at the Wall Street Journal wrote,

“Somewhat lost in this narrative is what role if any the broader Obama administration might have played with regard to the dossier. What actions were taken by former CIA Director John Brennan, or former Director of National Intelligence James Clapper? Also don’t forget Bruce Ohr, the Justice Department official whose wife worked for Fusion GPS, and who himself met with Fusion cofounder Glenn Simpson. Or the Justice Department officials who approved court filings. If there was surveillance abuse, accountability shouldn’t stop with the FBI.”

Yup. I don’t see how any fair and objective citizen can avoid wanting answers to this question.

9. The reaction of the mainstream news media so far is almost as ominous as the matter itself, or would be, if it wasn’t so predictable by now. For example, on CNN today, Wolf Blitzer questioned GOP Congressman Chris Stewart about the memo as if the issue was entirely political maneuvering. This appears to be the media’s tactic: muddy the water, make the episode just more political back-biting and dueling narratives, and assume the public won’t have the attention span to figure it out. When Stewart asked why Blitzer was not discussing the substance of the memo, Blitzer answered that ” the contents of the memo, Congressman, the contents of the memo are being seen as political.” No, the news media and Democrats are trying their damnedest to make the public think it is political. They have not denied that under a Democratic administration, a piece of opposition research paid for by the campaign of the Democratic Presidential candidate counted upon to continue that administration’s policies, was used to acquire a warrant to spy on a member of the opposing party’s Presidential candidate’s campaign, without the court being informed regarding the material’s origins. The news media is taking a bad gamble if it allies itself with a partisan effort to spin this away from discovering the truth, which the public has the right to know.

10. Democrats would be responsible, ethical and wise if they showed appropriate concern about the sequence of events in this matter, rather than trying to deflect criticism of it. The conduct of the Obama Justice Department and the FBI should be a matter of bi-partisan interest. The argument against the memo and the issues it raises, that the public revelations demoralizes our intelligence community and undermines the public’s support and trust is the same invalid logic being used to condemn criticism of the biased news media. If these institutions are not trustworthy and acting against the interests they are pledged to protect, then the public must know. If the conduct of the intelligence community shows that it isn’t trustworthy, there is nothing wrong, and everything right, about exposing it. The Onion’s satirical headline makes the point beautifully:

FBI Warns Republican Memo Could Undermine Faith In Massive, Unaccountable Government Secret Agencies.

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another fairly even-handed analysis that accuses each side of participating in a food fight:

https://fabiusmaximus.com/2018/02/02/about-the-nunes-memo/

excerpts:

A very smart man sums up Russiagate
“Noble and enthusiastic spectators across America have, from a distance, interpreted their own indignations and enthusiasms into it, and for so long and with such passion that the text has finally disappeared under the interpretation.”

This is a slightly tweaked quote of Friedrich Nietzsche from Beyond Good & Evil: Prelude to a Philosophy of the Future. This quote discussed the French Revolution, but applies quite well to today’s politics in American — which have become detached from reality.

Our politics have become a food fight, with the original — and important — issues long forgotten. It is just two tribes fighting for political advantage. The Democrats accuse Trump of doing what Obama did; the Republicans accuse Democrats of doing what they did to Obama. This is the politics of mutual destruction, both sides chipping away at the foundation of the Republic legitimacy.

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Conclusions
Note how statements from officials of both parties about the Memo were quite delusional. That is just business as usual in America today.

Our political food fights are entertainment for proles, powerless and alienated crowds whose excitement substitutes for the real power that comes from committed work in a political movement. This was America in the past, and can be so again. To see how you can begin, see these suggestions (pick one that works for you): Reforming America: steps to new politics.​

 

My question to you is: Why? I don't see how posting articles makes you so sure that I agree with them, either wholly or in part. Perhaps I just believe that members of a forum who lean predominantly in one direction would benefit from being exposed to materials coming from a different direction. I have already told you that my training is in philosophy, and philosophers are trained above all else to consider arguments from ALL viewpoints, and to go where the arguments take them. If they don't do that they are activists first before they are philosophers, and some would say they are not being philosophers at all in that case.

So @B-Bob , with equal respect, I guess I would respond that it doesn't matter which way I lean, but I am interested in hearing your response if you have one to give that provides an assessment of the articles cited on their merits. Otherwise you are simply contributing to the echo chamber of ad hominem attack that dominates this forum and I believe infects virtually ALL political discourse today.

 

so now I'm dishonest? uh, okay.

 

I'm not particularly interested in your guesses about my "purpose," I would however be interested in any response you might have to the specific arguments these commentators make in these articles.

 

related commentary in the Wall Street Journal:

https://www.wsj.com/articles/obama-and-the-fisa-court-1517608555

Obama and the FISA Court
Both of their reputations cannot survive the collusion investigation.

By James Freeman
Updated Feb. 2, 2018 5:45 p.m. ET
1758 COMMENTS

This column is trying to imagine how an editor at The Wall Street Journal would treat a draft article alleging a political campaign adviser was secretly working for a foreign government if the story featured uncorroborated opposition research paid for by a rival campaign. If the writer of the draft article assured the editor that readers would not be told where the information originated, it’s a safe bet this would not increase the chances of publication.

This column is also trying to imagine the conversation that would ensue if a reporter or writer then tried to persuade the editor by appealing to the authority of Yahoo News.

Of course the Journal isn’t the only media outlet that enforces standards. Many organizations strive to ensure basic accuracy and fairness. Can it possibly be true that the evidentiary standards for obtaining a federal warrant allowing the government to spy on the party out of power are significantly lower than in a professional newsroom?

Today the American people are finally able to see the memo from the majority staff of the House Permanent Select Committee on Intelligence alleging abuse of government surveillance powers during the last presidential campaign. Many will be appalled that, at least according to the memo, on October 21, 2016 the Department of Justice and the FBI obtained a court order authorizing electronic surveillance on a Trump campaign volunteer without telling the court that Hillary Clinton and the Democratic National Committee had paid for at least some of the research presented.

The memo further states that according to the head of the FBI’s counterintelligence division, corroboration of the research was in its “infancy” at the time the government requested and received approval for this surveillance. Is it that easy to spy on the party out of power?

Today a number of libertarians and liberals are pointing to a blog post by USC law professor Orin Kerr, who says that failure to disclose the interests of the source is often a non-issue:

Part of the problem is that judges figure that of course informants are often biased. Informants usually have ulterior motives, and judges don’t need to be told that. A helpful case is United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988), in which the government obtained a warrant to search a house for a meth lab inside. Probable cause was based largely on a confidential informant who told the police that he had not only seen a meth lab in the house but had even helped others to try to manufacture meth there. The magistrate judge issued the warrant based on the informant’s detailed tip. The search was successful and charges followed.

The defendants challenged the warrant on the ground that the affidavit had failed to mention the remarkable ulterior motives of the informant. The affidavit didn’t mention that the “informant” was actually a married couple that had been in a quarrel with the defendants; that the couple was facing criminal charges themselves and had been “guaranteed by the prosecutor that they would not be prosecuted if they provided information”; and that they had been paid by the government for giving the information. The affidavit didn’t mention any of that. A big deal, right?

According to the court, no. “It would have to be a very naive magistrate who would suppose that a confidential informant would drop in off the street with such detailed evidence and not have an ulterior motive,” Judge Noonan wrote. “The magistrate would naturally have assumed that the informant was not a disinterested citizen.” The fact that the magistrate wasn’t told that the “informant” was guaranteed to go free and paid for the information didn’t matter, as “the magistrate was given reason to think the informant knew a good deal about what was going on” inside the house. ​

If this is accurate, and if it’s also acceptable to include uncorroborated information in warrant applications, this means that the bar for approving government spying against domestic political opponents is significantly lower than most Americans have been led to believe.

A former government official, having read the Kerr argument, writes via email:

In meth cases, the judges all know the informants are dirtbags. But as Kerr admits, context is everything in these fact determinations. It’s hardly irrelevant that one presidential campaign is being spied on with the collusion of the existing administration and its candidate. Perhaps prosecutors should be mindful of their high ethical obligations in such a unique case. After all, there is the small matter of the credibility not only of law enforcement but the entire democratic process riding on it. ​

The Democrats on the Intelligence committee seem eager to release their own memo so perhaps we’ll learn more, but based on today’s release it appears either that the Obama administration engaged in historic abuse or that the FISA court cannot be trusted to protect our liberties, or perhaps both.

Readers concerned about the government’s surveillance authority may be interested to know about one current member of the Intelligence committee who began focusing on this issue all the way back in the George W. Bush administration.

In March of 2007, he announced that he was “deeply troubled” by what he called “abuses of authority” by the FBI in acquiring personal information on U.S. citizens. Over the years, he urged various restrictions on the ability of the executive branch to get information on Americans’ phone calls. In order “to protect privacy and increase transparency” he sought in various ways to reform the Foreign Intelligence Surveillance Court—the very court that approved the electronic surveillance of a Trump associate for reasons that are still not entirely clear.

Way ahead of the news, this particular lawmaker specifically introduced the “Ending Secret Law Act” which according to a press release from his office, “would require the Attorney General to declassify significant Foreign Intelligence Surveillance Court (FISC) opinions, allowing Americans to know how the Court has interpreted” its legal authorities.

This lawmaker said that his legislation “will help ensure we have true checks and balances when it comes to the judges who are given the responsibility of overseeing our most sensitive intelligence gathering and national security programs.”

His name is Adam Schiff, and he is now the ranking member on House Intelligence. But oddly he doesn’t seem to want to take credit for his early concern for civil liberties.

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