There have been many reports about US government overreach and FISA abuses since the revelations by Edward Snowden in 2013. What is known and confirmed has been grounded in the violations of constitutional rights against all Americans. In addition, there is also deep concern that FISA (the Foreign Intelligence Surveillance Act) is a profiling tool used against Asian-Americans, with real-life victims.
There are also allegations of other abuses that remain to be confirmed, including the recently released Nunes memo that has sensationally dominated the recent news cycle.
Republican Representative Devin Nunes serves as the chairman of the House Intelligence Committee, which is in charge of oversight of the US intelligence community. Representative Adam Schiff is the ranking Democratic member. The committee has 13 Republican members and nine Democrats.
Nunes’ staff wrote the four-page memo, which alleges abuse of FISA authorities and political bias in the 2016 US presidential campaign.
The House Intelligence Committee voted along party line to make the Nunes memo public. The memo was released with President Donald Trump’s approval on February 2, amid dire claims that it would be so shocking that democracy is threatened.
Opposition to the release of the Nunes memo came from the Department of Justice, the Federal Bureau of Investigation and some members of Congress in both the House and the Senate. Some have called the memo inaccurate and its release reckless, irresponsible, and a politicized stunt to interfere with and discredit the ongoing investigation into alleged Russian collusion with the Trump election campaign. Some charge that the Nunes memo attempts to influence public opinion instead of correcting systemic flaws.
This article does not intend to discuss the veracity of the Nunes memo. There will be plenty of interpretations by pundits and politicians. Average citizens do not have access to the entire collection of source materials to provide a complete, objective picture.
Instead, the following personal observations and questions are shared about the background and process on the Nunes memo. Readers are encouraged to review the available facts and draw their own informed opinions
Nunes led vote against FISA reform
There was an excellent opportunity to correct government overreach and FISA abuses in the recent legislative process to reauthorize FISA.
The Nunes memo makes a reference to “a troubling breakdown of legal processes established to protect the American people from abuses related to the FISA process.” However, Nunes himself led the opposition against FISA reform.
As committee chairman, he has the authority but did not call public hearings to debate the needs and options for FISA reform. Nunes voted for reauthorizing FISA with no reform and helped to revive the infamous “about target” program to surveil Americans without warrant, which is at least as egregious as an allegedly biased justification for a FISA Court warrant.
Nunes’ claim of shocking FISA abuse appears to be contradictory to his actions in opposition to fundamental reform, especially when he was in a leadership role to effect change in the recent reauthorization process only a few weeks ago.
Democrats’ rebuttal not concurrently released
An explanation for the public release of the Nunes memo is “to let the American people know the truth.” Indeed, the FISA operations have been overly secret. For example, the government has refused to report even an approximate number of Americans under secret warrantless surveillance. There should be more transparency without compromising national security in the interest of the American people.
The Democrats have also prepared a 10-page memo that contains rebuttals to the Nunes memo, alleging it “cherry-picks facts, ignores others and smears the FBI and the Justice Department.” However, Nunes and the House Intelligence Committee voted to forbid this competing memo to be publicly released at the same time. If pursuing the truth were indeed the purpose, public interest would be better served with concurrent public release of both memos.
What did Nunes memo try to achieve?
The US is a democracy with three independent branches of government. The president heads the executive branch to enforce the laws created by the legislative branch that is represented by Congress. The judiciary branch, led by the Supreme Court, interprets laws according to the constitution and adjudicates federal issues.
The three branches have separate powers so that one branch cannot dominate the other two. Under FISA, Congress and the FISA Court have respective legislative and judiciary oversight responsibilities. House and Senate committees are supposed to monitor ongoing operations, conduct hearings and reviews, gather and evaluate information, and recommend courses of action as an institution.
It is not unusual for one or a group of congressional representatives to consult and work with the White House on legislative issues. However, it is unprecedented and deeply troubling for a House committee chairman to lead the abdication of congressional mandate and duty to issue a four-page uncorroborated memo in an obvious partisan manner.
Not only has the rebuttal from the minority committee members been suppressed, consultation with Senate counterparts including fellow Republicans was also bypassed. Warnings by the Department of Justice and the FBI whose officials were appointed by the current president were not heeded.
In fact or in appearance, these oversights raise the question of what the Nunes memo was attempting to achieve by risking the credibility and integrity of Congress as an independent institution to oversee government operations under the constitution.
Nunes is not known as a champion of privacy and civil liberties. His vote in the FISA reauthorization shows that he does not support FISA reform. If the release was intended to offer transparency, partial transparency cannot be accepted as transparency. If it was intended to tell the truth to the people, selectively using a four-page uncorroborated memo cannot be accepted as telling the truth.
What it means to Asian-American community
Humans are known to make mistakes. Some have implicit bias; some have explicit prejudice. These can also be embedded and hidden in modern technology. APA FISA Watch does not discount the potential presence of political bias in the current system. It reinforces the fear and contention that race may be a factor in the use of FISA as a tool to profile innocent Chinese-Americans.
The US is not a perfect nation. Some describe it as a grand experiment of a new form of government. The nation improves over time when identified flaws are corrected through its design as a democracy and a constitutional government. Ideally, this requires each branch of the government to carry out its respective responsibilities, and most important, the participation of its people to strive for the good of the society, regardless of political party.
FISA needs reform for more oversight, transparency and accountability. Along with like-minded organizations and individuals, APA FISA Watch made recent FISA-reform efforts through the legislative process. Professor Xiaoxing Xi is seeking justice through the judiciary process.
Pursuit of FISA reform was and will continue to be a bipartisan effort. We at APA FISA Watch will not be tarnished by the partisan nature of the Nunes memo. For example, we are alarmed and call for public attention and bipartisan congressional oversight about the National Security Agency’s recent removal of “trust” and change of meanings to terms such as “transparency” as core values in its mission statement.
Author’s note: The views and opinions expressed in this article are mine and mine only. They do not reflect the official position or policy of any organization or any agency of the US government.