Is the headline of an awsome analysis of the already leaked allegations of the memo. The questions are raised by JustSecurity.org a project of NYU Law School. It’s an “online forum for the rigorous analysis of U.S. national security law and policy.” Bookmark this site, it is awesome.
Here’s some snippets from the just security analysis of the memo, I highly suggest you read the whole thing, it’s worth it.
The House Intelligence Committee has voted to release the Nunes Memo, which allegedly outlines widespread abuses by the DOJ and FBI in obtaining a surveillance order against former national security advisor to the Trump Campaign, Carter Page. As a former FBI agent who has been through the process of obtaining these kinds of warrants under the Foreign Surveillance Intelligence Act (FISA), I know that such an allegation, if true, would require a vast number of people – across two branches of government – to be on board and willing to put their careers on the line for a conspiracy. To that end, in advance of the memo being released, I want to highlight five questions that the Nunes Memo must clearly address in order for its allegations of abuse to be substantiated and credible.
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1. When did the FBI open an investigation on Carter Page?
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THE TAKEAWAY: If the Nunes Memo does not indicate when the investigation underlying the Page FISA application was opened or how many months/years of investigative activity preceding the dossier is detailed in the Page FISA application, it is not telling a sufficiently complete or accurate story.
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2. Who in the DOJ conducted the Woods Procedures on the FISA application?
Snip the detailed explanation and strict requirements of the Woods procedures for carefully vetting FISA applications before they are presented to the FISA judge.
THE TAKEAWAY: If the Nunes Memo doesn’t address who conducted the Woods Procedures for the Page FISA application, any material deficiencies in those procedures, or address this part of the DOJ review process at all, it is skipping over a critical part of the vetting process.
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3. Who was the federal judge who approved the memo?
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THE TAKEAWAY: Alleging a concerted conspiracy by the FBI/DOJ in obtaining the Page FISA necessarily implicates the judge who approved it, and suggests they are incompetent (at best) or corrupt (at worst). If Nunes is alleging serious crimes on the part of the FBI and DOJ, he must put his money where his mouth is and identify the judge who approved the FISA application. If he doesn’t, it’s likely because even he knows that this would be taking his accusations too far.
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4. Was the FISA warrant ever extended?
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THE TAKEAWAY: Neither the FBI nor the DOJ has the power to extend a FISA surveillance order, they must request it. If a request to extend FISA surveillance that began in September 2016 was made by DAG Rosenstein in or around March 2017, the FBI had shown a federal judge that it had collected additional foreign intelligence information justifying the original order at least once already, around December 2016. The Nunes Memo should address the fact that additional information validating the original FISA order was obtained, and reviewed and approved by a (potentially additional) federal judge, in addition to new administration staff at the DOJ.
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5. Has Robert Mueller used anything derived from the FISA in his investigation?
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THE TAKEAWAY: Anything that discredits the Page FISA application by definition is intended to cast doubt on the Mueller investigation. (This may also be an attempted implication of the Nunes Memo if it tries to tar DAG Rosenstein, since each major step that has been taken by Mueller have been approved by DAG Rosenstein.) If this is the case, then Mueller should be named directly in the memo as someone who has personally engaged in misconduct in reliance on the Page warrant. If he is not, it is because Nunes knows that this is a line he cannot politically cross directly without real evidence – and is trying to do so indirectly.
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In sum, the Nunes Memo reportedly alleges that at least a dozen FBI agents and DOJ prosecutors fabricated evidence, engaged in a criminal conspiracy to commit perjury, lucked out on being randomly assigned Judge Low Blood Sugar who looked the other way, and – coincidentally – ended up obtaining evidence that justified extending the initial FISA surveillance. This conspiracy was presumably signed off on by former FBI Director James “I Cannot Tell a Lie” Comey – who, while conspiring to bring down Trump, actually shifted the election in his favor by informing Congress he had reopened the Hillary Clinton email investigation one month after the Page FISA warrant. The sham FISA was validated by one or more federal judges who either didn’t know better or were in on the whole secret and later accepted and used by Special Counsel Mueller who was not a part of the FBI during this time at all. And despite this widespread and outrageous conduct, the current Assistant Attorney General, a Trump appointee, wrote Nunes about the memo to say, “we are currently unaware of any wrongdoing relating to the FISA process.”
The answers to the questions above are necessary to substantiate allegations of misconduct in the FISA process. If Nunes has in fact singlehandedly uncovered this vast criminal enterprise, it’s hard to know what’s more astonishing: That a government bureaucracy managed to pull it off – or that Nunes has exposed it all in a scant four-page memo.
Again, read the whole thing for yourself it’s worth it. While you are there take a look around, this is an extremely valuable source for so many of our current legal and security issues.
Just so you know the type of people writing for justsecurity this analysis was written by
Asha Rangappa
Member, Board of Editors
Asha Rangappa (@AshaRangappa_) is a Senior Lecturer at Yale’s Jackson Institute for Global Affairs. Prior to her current position, she was an Associate Dean at Yale Law School in New Haven, Connecticut, where she has worked since 2005. Asha previously served as a Special Agent in the New York office of the FBI, specializing in counterintelligence investigations. Her work involved assessing threats to national security, conducting classified investigations on suspected foreign agents, and performing undercover work. While in the FBI, Asha gained experience in electronic surveillance, interview and interrogation techniques, firearms and the use of deadly force, and weapons counterproliferation. She has taught National Security Law and related courses at the Jackson Institute of Global Affairs at Yale University, Wesleyan University, and The University of New Haven. She is also a legal and national security analyst for CNN. Media Inquiries: ContactJohn Reed, Managing Editor E-mail: jtreed@justsecurity.org