by Glenn Greenwald, Jon Schwarz, The Intercept:
ONE OF THE gravest and most damaging abuses of state power is to misuse surveillance authorities for political purposes. For that reason, The Intercept, from its inception, has focused extensively on these issues.
We therefore regard as inherently serious strident warnings from public officials alleging that the FBI and Department of Justice have abused their spying power for political purposes. Social media last night and today have been flooded with inflammatory and quite dramatic claims now being made by congressional Republicans about a four-page memo alleging abuses of Foreign Intelligence Surveillance Act spying processes during the 2016 election. This memo, which remains secret, was reportedly written under the direction of the chair of the House Permanent Select Committee on Intelligence, GOP Rep. Devin Nunes, and has been read by dozens of members of Congress after the committee voted to make the memo available to all members of the House of Representatives to examine in a room specially designated for reviewing classified material.
The rhetoric issuing from GOP members who read the memo is notably extreme. North Carolina Republican Rep. Mark Meadows, chair of the House Freedom Caucus, called the memo “troubling” and “shocking” and said, “Part of me wishes that I didn’t read it because I don’t want to believe that those kinds of things could be happening in this country that I call home and love so much.” GOP Rep. Scott Perry of Pennsylvania stated: “You think about, ‘Is this happening in America or is this the KGB?’ That’s how alarming it is.”
This has led to a ferocious outcry on the right to “release the memo” – and presumably thereby prove that the Obama administration conducted unlawful surveillance on the Trump campaign and transition. On Thursday night, Fox News host and stalwart Trump ally Sean Hannity claimed that the memo described “the systematic abuse of power, the weaponizing of those powerful tools of intelligence and the shredding of our Fourth Amendment constitutional rights.”
Given the significance of this issue, it is absolutely true that the memo should be declassified and released to the public — and not just the memo itself. The House Intelligence Committee generally and Nunes specifically have a history of making unreliable and untrue claims (its report about Edward Snowden was full of falsehoods, as Bart Gellman amply documented, and prior claims from Nunes about “unmasking” have been discredited). Thus, mere assertions from Nunes — or anyone else — are largely worthless; Republicans should provide American citizens not merely with the memo they claim reveals pervasive criminality and abuse of power, but also with all of the evidence underlying its conclusions.
President Donald Trump and congressional Republicans have the power, working together or separately, to immediately declassify all the relevant information. And if indeed the GOP’s explosive claims are accurate – if, as HPSCI member Steve King, R-Iowa, says, this is “worse than Watergate” — they obviously have every incentive to get it into the public’s hands as soon as possible. Indeed, one could argue that they have the duty to do so.
On the other hand, if the GOP’s claims are false or significantly misleading – if they are, with the deepest cynicism imaginable, simply using these crucial issues to whip up their base or discredit the Mueller investigation, or exaggerating or making claims that lack any evidentiary support, or trying to have the best of all worlds by making explosive claims about the memo but never having to prove their truth — then they will either not release the memo or they will release it without any supporting documentation, making it impossible for Americans to judge its accuracy for themselves.
Anyone who is genuinely concerned about the claims being made about eavesdropping abuses should understand why the issue of evidence is so critical. After all, the House, Senate, and FBI investigations into any Trump collusion with Russia have so far proceeded with many startling claims in the media, but to date little hard evidence for the public to judge. Nobody rational should be assuming any claims or assertions from partisan actors about the 2016 election are true without seeing evidence to substantiate those claims.
The good news is there are at least four easy ways for congressional Republicans and/or Trump to definitively prove that all the right’s darkest suspicions about the Obama administration are true. If this memo and the underlying documents prove even a fraction of what GOP politicians and media figures are claiming about them, then what could possibly justify its ongoing concealment? Any or all of these methods should be promptly invoked to ensure that the public sees this evidence:
1. Trump can declassify anything he wants.
All classification by the U.S. government has no basis in laws passed by Congress (with one tiny exception that is irrelevant here). Rather, all classification is based on presidential executive orders, which rely on the president’s constitutional role as commander in chief of the armed forces. According to the Supreme Court, the presidential power “to classify and control access to information bearing on national security … flows primarily from the constitutional investment of power in the president.”
That means presidents can also declassify anything they chose to — for any reason or no reason — as they have done in the past. George W. Bush, under pressure in 2004, declassified the section of the 2001 presidential daily brief headlined “Bin Laden Determined to Strike in U.S.” Barack Obama declassified the Justice Department memos produced during the Bush presidency on the legality of torture.
Thus if the House Intelligence Committee merely releases a version of its memo without the supporting documentation, that won’t be just because they don’t want Americans to see it – it will be because Trump doesn’t want us to see it either. Note that GOP House members are insistent that releasing the memo and the underlying source material would not remotely harm national security:
Releasing this classified info doesn't compromise good sources & methods. It reveals the feds' reliance on bad sources & methods.
— Lee Zeldin (@RepLeeZeldin) 18 January 2018
So what possible justification is there for Trump to continue to conceal this alleged evidence of massive criminality from the American people by hiding it behind “classified” designations? Indeed, it is illegal to abuse classified designations to hide evidence of official criminality: so not only can Trump declassify such evidence, one could argue that he must, or at least should.
2. The House (and Senate) intelligence committees can declassify any material they possess.
According to the procedural rules of both houses of Congress, their intelligence committees can declassify material in their possession if the committee votes that such declassification would be in the public interest. It is then declassified after five days unless the president formally objects. If the president does object, the full chamber votes on the question.
It is true that – in a measure of how embarrassingly deferential Congress is to the executive branch – neither the House nor the Senate intelligence committees has ever utilized this power, so it’s impossible to know how this gambit would play out in practice. But if Trump refused to release proof of the Obama administration’s misdeeds, congressional Republicans should have a straightforward way to overrule him.
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