How the U.S. House Can Disclose the Tantalizing Secret Memo About Surveillance

By Robert Willmann

On Monday, 29 January 2018, the U.S. House of Representatives Permanent Select Committee on Intelligence met for a business meeting and voted on five agenda items or motions concerning classified executive session memoranda.  This is the tantalizing matter of conduct by one or more executive branch agencies of surveillance, perhaps of president-elect Donald Trump, campaign members, and others.  Also said to possibly be involved is the secret federal court created by the Foreign Intelligence Surveillance Act (FISA), and maybe even the bawdy paper pushed during the presidential campaign by "former" (or current?) British MI6 agent Christopher Steele about Donald Trump and Russia.  Here are the agenda items and the votes on each one by committee members--

http://docs.house.gov/meetings/IG/IG00/20180129/106822/HMTG-115-IG00-20180129-SD001.pdf

The big one was item number four, which passed, and authorized the disclosure of one classified executive session memo.

Of equal interest is the fact that the U.S. Congress can declassify and make public a document or item that was deemed secret and not to be disclosed.  Buried in the 45 pages of fine print in the Rules of the House of Representatives is the language that is claimed to authorize the disclosure.  Rule 10 governs the organization of committees.  Section or clause 11 of Rule 10 deals with the Permanent Select Committee on Intelligence.  The good stuff describing the authority and procedure is on pdf pages 19 and 20 (document pages 15 and 16) of the rules, in parts 11(f) and 11(g).  You start near the bottom of the middle column with part "f" on pdf page 19 and go through part/clause 11(g)(2)(G) in the first column on pdf page 20--

https://rules.house.gov/sites/republicans.rules.house.gov/files/115/PDF/House-Rules-115.pdf

That Congress can decide what is classified secret and what is not, and can authorize disclosure, is self-evident from Article 1, section 1 of the U.S. Constitution:  "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives".  However, the House rules are not legislation.  I have not yet tried to find a law passed by Congress that creates this unilateral power to declassify material, but I assume that it does exist, or it certainly should.

The members of the House intelligence committee are listed here--

http://clerk.house.gov/committee_info/index.aspx?comcode=IG00

One little item of interest is that committee member Will Hurd (Repub. Texas, 23rd District) is a former CIA officer.  His Congressional district includes part of the San Antonio area.  According to the committee document cited above with the motions that were voted on, he participated in all of the votes except number four, the one that starts the process to try to disclose the memo to the public.  He did not vote "present", so he may have ducked out of the room for that one.  If he has a philosophical objection to disclosing material previously designated as classified, he may not be put on the spot as the deciding vote to disclose if the whole House has to vote on that question. If the Republicans have a surplus in their majority in the House, he might either not vote at all or make a symbolic "no" vote.

If the underlying material for the memo was submitted by the "executive branch" and the executive branch requests that it be kept secret, the committee notifies the president that the vote to disclose was made.

 

The committee itself can disclose the memo five days after it tells the president that it took a positive vote. The day of notice was probably yesterday. If so, the fifth day is Saturday, 3 February.

The memo could be released on 4 February, just in time for the Sunday morning talk shows, if the president does not notify the select committee personally in writing "that the President objects to the disclosure of such information, provides reasons therefor, and certifies that the threat to the national interest of the United States posed by the disclosure is of such gravity that it outweighs any public interest in the disclosure".

The operative phrase is "national interest" and not "national security".

If the president objects to disclosure, the whole House has to vote positively to reveal the memo. 

A person would do well to be cautious about how powerful the memo is, because all the buildup about it is like a striptease dancer in a burlesque show. The memo itself appears not to be the evidence from which it is derived. The Democrats in the House have produced their own memo allegedly based on the same material, and it most certainly says the opposite. The Democrats will then claim that the public cannot see the evidence on which it is based and draw its own conclusions, because that evidence has to remain "classified". 

In addition, the memo and its hype should not provide misdirection from all possible problems associated with the issue of surveillance, investigations, and politics. Look at this shiny object: the memo! the FISA court! the FBI application! the Christopher Steele paper! the Justice Department maneuvers! 

The problems involved are serious soap. This is not just the Department That Calls Itself Justice, the FBI, and a lurid paper from Christopher Steele likely used to get a surveillance warrant from the FISA court. Surveillance, wiretapping, and other clandestine activities may have been done illegally by other government agencies or private persons or organizations, or done by foreign governments such as Britain or Israel, and then handed off to the CIA, FBI, or other persons or organizations to be used politically within the U.S.  

Perhaps the cellular phones that are hand-held computers the candidates and their associates were happily using were illegally being activated as tracking and listening devices. No bugs need be planted.

You can see how difficult it is to try to have a memo declassified without even getting into revealing the claimed evidence underlying it.  The bad actors in this drama hide behind forms of governmental immunity and the concept of classified information, while continuing to be paid by the taxpayers.

But in the face of that, we withdraw permission to be defeated, and take one step at a time.

 

Comments

[blowback]

Just to muddy the waters along comes another "dossier", this time by Cody Shearer, "a controversial political activist and former journalist who was close to the Clinton White House in the 1990s".

The Shearer memo was provided to the FBI in October 2016.
It was handed to them by Steele – who had been given it by an American contact – after the FBI requested the former MI6 agent provide any documents or evidence that could be useful in its investigation, according to multiple sources.

https://www.theguardian.com/us-news/2018/jan/30/trump-russia-collusion-fbi-cody-shearer-memo

So its existence is made public just before the release of the secret HIC memo. Are we soon to be told that this rather than the Steele Dossier, gossip passed by on the Australian HC in London, or the warning from the AIVD triggered the FISA surveillance of the Trump campaign. Someone is getting desperate.

[blue peacock]

robt,

Wray and Rosenstein were at the White House yesterday. We know that Boyd at DOJ wrote Nunes last week objecting to the release of the memo. HPSCI voted to declassify anyway. However, FBI Director Wray did read the memo on Sunday evening. Since the POTUS is the head of executive branch, all the agencies like FBI, DOJ, CIA that report to him now need to bring their concerns to him. Of course White House staff like McMaster, Kelley, White House legal staff will also weigh in. At the end the decision to object is for Trump to make. I don't see why he would not want more sunshine. And why he would not want the spotlight to shine on the Deep State conspiracy. We'll find out in a few days.

[blowback]

More information on Sidney Blumenthal's mate, Cody Shearer, here.

http://www.nationalreview.com/article/419131/meet-cody-shearer-strangest-character-hillarys-vast-left-wing-conspiracy-brendan

Someone is really f*****g desperate.

[Richardstevenhack]

The RT Crosstalk I was watching yesterday suggested that this memo is not nearly as "explosive" as the Republicans are making it out to be.

However, it seems to me that if it clearly shows that the Steele dossier and the FBI were in collusion with Fusion GPS and the Clinton campaign and Obama used it to authorize spying on Trump in some form, then it should be another solid blow against Russiagate.

But just like the commentators on Crosstalk, I agree that this won't stop Russiagate from going ahead.

The Crosstalkers suggested the Mueller investigation is merely intended to create waves until the mid-term elections with the Democrats hoping to ride into office on the basis of it, capturing Congress so they can then try impeaching Trump.

What WOULD stop Russiagate is proof that the DNC "hack" was not a hack, but a leak. The Steele dosser is a distraction from that, unfortunately. All that bureaucratic nonsense would pale before proof that the entire "Russian hack" was a complete fraud perpetrated by the DNC, the Clinton campaign, assorted Ukrainian-Americans, and CrowdStrike - and possibly including various intelligence agencies including the FBI and the CIA.

We may have to wait for Assange to get out of the Ecuadorian Embassy before we get the proof - or Sy Hersh's "long form journalism" report. Proof that Seth Rich was the leaker would sandbag this entire farce.

[Eric Newhill]

Robert,
Interesting. "The operative phrase is "national interest" and not "national security".

IMO, the memo is not what is key here. It is the material behind the memo the counts.

I agree that the Democrats are going to play the game you suggest. They will claim the Republicans have crafted a misleading memo for partisan political reasons, that the memo is merely their (R's) inaccurate summary of facts that cannot be released and that the truthful Democrat memo is being suppressed for the same partisan reasons. Bottom line; without release of the underlying classified material and evidence, either side (R v D) can sow confusion and doubt - the entire matter can be written off as a head scratcher and politics as usual. Same can be done to explain inconvenient realities such as McCabe's dismissal/early retirement/whatever you elect to call it.

However, doesn't Trump have the power to declassify anything he wants to? If the situation is as the Rs are claiming it to be, would it not be in Trump's best interest to declassify enough material to cover his own ass and to prove his point as well purge some enemies of the republic? Yes, Trump would take some flak for "damaging national security", etc. from his enemies, but he takes that kind of flak all day long anyhow. Nothing to lose there.

If Trump has the legal power that I believe he does, then we will know the truth before too long. He either declassifies underlying material that is evidence and proves he's been right all along - or he fails to declassify evidence behind the memo and we are left to assume that the memo is as the Ds say it is.

[JamesT]

Eric Newhill

I don't think Trump will declassify everything right away - I think he is taking a "drip, drip, drip" approach, and I think that makes sense. Unfortunately that means that politics in the nation is going to become yet more partisan and the nation yet more divided.

[Fred]

"The bad actors in this drama hide behind forms of governmental immunity and the concept of classified information, while continuing to be paid by the taxpayers."

Just what governmental immunity does Obama now possess? I believe he is only hiding behind a giant smoke-screen generated by the institutional left and the walls of his DC compound.

[blue peacock]

Eric,

The "he said, she said" scenario is one of the purposes of the Nunes memo, in my opinion. The Democrat & media response that the memo does not accurately reflect the underlying classified evidence is what Nunes wants. This then sets up the case for the declassification and even the appointment of another special counsel to probe and prosecute the conspiracy. The Democrat memo has not yet been made available to the entire House to review. Once they do what Nunes did, I am sure it too will be released.

Trump of course can declassify anything that the Executive Branch classifies. That is his prerogative as POTUS. He may well do that at some point. But he has to walk a fine line as he doesn't want to give Mueller any grounds for an obstruction of justice charge.

The Nunes memo, IMO, should be looked at as the first of several memos. This memo if the leaks are correct will focus on FISA abuse. Others will come out emphasizing other aspects of the conspiracy. Then there is the DOJ IG report due later in Spring. That is the internal investigation conducted by the IG, who has provided Congress a million documents couple weeks ago. All that needs to be reviewed. More will be coming out as those documents get scrutinized. I am convinced the momentum behind this will become huge as we get to the fall election season. There is a decent probability that as we get further down the track, this will lead into the Obama White House and Obama himself.

[Martin Oline]

I have watched Senator Grassley over the last couple of months with alarm because it seemed that many of his speeches were made with little effect. His requests for information was consistently ignored by the FBI. I see now that he was very carefully digging a grave for those who would obstruct justice, who assumed that when Hillary was elected, their actions would be swept under the rug. This fascinating You Tube presentation, recorded by Jason Goodman interviewing Dr. Stephen is about the chronology of the memo that is in the news this week. I would encourage anyone who has the time to spare for this viewing to do so, especially the first 50 minutes. It will be worth your time and leave you feeling much better about our future.
https://www.youtube.com/watch?v=CuFvaSriWck

[Eric Newhill]

blue peacock #9

Oh, I totally agree with all you say. I didn't mean to imply that what I described would happen this week; only that it is going to happen if there is any reality to what Trump, Nunes, Gowdy, et all imply - and, IMO, there is much reality to it. Clinton and Obama are both at risk here, as you say.

I never thought that "lock her up" and "drain the swamp" were merely bombastic campaign sloganeering. IMO, it is a serious mistake to think Trump is just another blowhard promise forgetting politician. Trump seems to enjoy toying with his targets before zapping them when he can get away with it. I think this has been privately recognized by some of the targets. So expect frequent lunatic kamikaze attacks from the leftwing tools.

[turcopolier]

All

Since the system of classification exists by EO the president can de-classify anything he wishes to. pl

[Sid Finster]

Honestly, returning to my favorite "cognitive dissonance" hobbyhorse, I cannot imagine any conceivably facts derailing russiagate's credibility among those who want so desperately to believe.

[Sid Finster]

How would declassifying information give rise to an obstruction charge?

[steve]

Trump should just declassify it. Let's see what is in it.

Steve

[blue peacock]

Eric

Yes, Hillary Clinton & Obama and their minions in government & the media can't be resting easy.

The alleged Russian intelligence operation and the hacking or leaking of the DNC & Podesta emails are not the priority of the Congressional Republicans investigating these matters. They are focused on two things. One is the FBI investigation into Hillary's mishandling of classified information. The second is the framing of Trump for collusion with the Russians and the attempted "soft coup" after his election. The Nunes memo if the leaks are accurate relates to the latter and in particular one element of that, FISA abuse.

Recall the Loretta Lynch & Bill Clinton meeting on the tarmac to discuss "their grandchildren" and then Lynch stating that she would accept whatever recommendation Comey makes. Well, Lisa Page texted in that context at the time of Lynch's announcement, that Lynch's statement wasn't any profile in courage as she already knew the outcome of the investigation. This was when the investigation was ongoing and Hillary had yet to be interviewed. This fix of the investigation is what Grassley and Goodlatte are digging into. The Hillary investigation could very well be re-opened or even a special counsel appointed. The IG report should shed more light on this FBI investigation and how Comey, McCabe, Strzok and Page among others fixed the result.

The Democrats have intentionally not seen all the classified evidence. Schiff did not go to the White House SCIF to review the PDBs. Nunes did and noted in a subsequent press conference that he saw information about US persons, presumed to be Trump transition officials, but no information on related Russian matters. Then there is all the unmasking that Susan Rice and others did. Recall Evelyn Farkas's interview on MSNBC around all this. This could all get unraveled and point to Obama and the White House involvement, maybe even directing the conspiracy.

At this point we have to wait and see how this cat & mouse game between the Congressional Republican investigators and the Deep State actors evolves. Trump already knows what happened. Admiral Rogers briefed him a week after the elections. He too has to sit tight while the Mueller probe continues. Nunes, Grassley and Goodlatte already have the Deep State putschists in a tough spot. Notice all the demotions and resignations. They are slowly building their case against the big fish.

[Keith Harbaugh]

As a sample of what the MSM is saying about releasing the memo,
there is this analysis from

Carrie Cordero, a CNN contributor who has extensive background on the subject having served as
Counsel to the Assistant Attorney General for National Security;
Senior Associate General Counsel at the Office of the Director of National Intelligence;
and Attorney Advisor at the U.S. Department of Justice.

https://www.cnn.com/2018/01/30/politics/cordero-nunes-memo/index.html

The conclusion of her analysis:

"Releasing the memo publicly would be a sad thing for the country."
Because it means that there is a real reason for Americans to have less faith that the components of their government are functioning in the American people's best interests.
The committee vote that already took place last night was a major crack in the credibility of an important American institution: HPSCI.
HPSCI is one of two intelligence committees created to provide an important check on intelligence community overreach.
The vote last night, and if this document is released by the White House this week, means that an important component of intelligence oversight is broken.

BTW, I am not certainly not endorsing this analysis,
merely offering it for comment.

[turcopolier]

james

There is no time frame. POTUS can de-classify any information he wants to at any time with the possible exception of atomic energy information for which I believe there is a specific piece of legislation. The five days that people keep talking about is a courtesy that the Congress gives him in which he can object to a de-classification before they de-classify their own document. pl

[Annem]

It has been said that the matter of FISA and the WH started way back before the Trump campaign and was not related to it at first. It seems that Carter Page had been providing material [nothing classified] on the US economy to a Russian who turned out to be one of three people in a spy cell. It had all the markings of the early stage of a recruitment effort. When Carter Page joined the campaign and then the White House alarm bells went off and led to the FISA warrant for Page's phones, a request that was granted by a judge and as usual, had to be renewed every three months.
The FBI, which had managed to get bugs in the Russian Embassy skif. They listened to the spies discussing their activities in the US, including with Page, with Moscow. Meanwhile, the spy cell was rolled up. Two of the three, with dip passports, fled before he could be caught. The third, who worked at a Russian bank in New York, was caught, tried and convicted and spent time in prison.

Page continued to be a source of concern to the FBI because of trips to Russia and meetings with seemingly important people, something he tried at first to deny. If and when the FBI/DOJ informed the President about this, I do not know. They certainly got rid of Page quickly after public questions about him arose.

[Richardstevenhack]

This looks interesting if true.

New Book: McCabe Initiated White House Meeting That Led To Leak
http://thefederalist.com/2018/01/29/new-book-mccabe-initiated-white-house-meeting-that-led-to-leak/

The book claims that Priebus was approached by McCabe, who said one thing, and then the FBI promptly leaked the accusation to the media that Priebus was the one who initiated the contact.

If true, this would seem to be in line with other FBI operations wherein a Trump associate is "set up", then the FBI leak information to the media that makes it look like the associate was in violation of legality by talking to the FBI.

Quote:

Partisan operatives in or close to the FBI communicated snippets of information with reporters who didn’t demand proof or substantiation, then FBI officials denied to White House officials who knew the facts that they were seeding that information, then officials suggested that White House operatives were obstructing justice by asking for the truth to out. At a time when people are looking for patterns, this is a pattern of improper behavior that deserves focus from the media.

End Quote

That seems to sum it up well.

[blue peacock]

Similar to firing Comey created the hysteria around obstruction of justice and led to the Mueller special counsel appointment.

Note that POTUS has the authority to fire any top official in the Executive Branch for any reason.

[Rocketrepreneur]

Robert,

One of the thing that has bugged me the most about the release the memo crowd is how many of them literally just got through voting for extending and expanding the very FISA surveillance powers they claim were abused by the FBI and DoJ. Some of them knew about this memo at the time they were arguing for and voting for giving more secret surveillance power to the government.

As a libertarian, I can believe that the FBI is an agency that has too much power for flawed mortals, and that that power can get abused by unscrupulous individuals. But if that's the case and they really have evidence for it, they sure aren't voting as though they actually believe their memo...

~Jon

[JohnB]

Sid

As an observer from across the pond I concur with that. Russiagate will run and run, a bit like the Mousetrap. In fact the likelihood is the believer's will 'double down'.

On the subject of the memo. I suspect this won't be anywhere near as explosive as proponents think.

As with all these sort of things it's never 'black and white' but different shades of grey. The truth will now doubt be found somewhere between the words of the Rep & Dems memo.

[Lee A. Arnold]

Sen. Joe Manchin says the Nunes memo vote has "neutered the House Intel Committee's work on Russia probe". This is a big danger signal from a conservative Democrat who sometimes votes with Senate Republicans. Paul Ryan may be driven into letting the HPSCI minority Democrats release the counter-memo, just to prove that the GOP is fair-minded. After that point, the news cycle will be "dueling memos", and the public will want to see the underlying classified evidence to see who is telling the truth. And that, in turn, could open a big can of worms for the GOP. So it may be Republicans, not Democrats, who are the first to claim that the public cannot see the evidence on which the memos are based to draw its own conclusions, because that evidence has to remain "classified".

[blue peacock]

Well said Jon.

The Republicans are no believers in the Constitution either. They made sure FISA was reauthorized before their memos were released. Although they claim that they reformed the Query procedures that make it more difficult to use 702s for domestic political purposes.

I have always believed the Patriot Act and FISA were both unpatriotic and unconstitutional as it authorized mass surveillance and data collection as well as secret courts. What I find most disconcerting is the sophistry the courts have used to justify their constitutionality. IMO, they are the very antithesis of our founding creed. This is part and parcel of our devolution to idiocy.

The George W. Bush administration backed by the "national security" Democrats like Hillary Clinton & Diane Feinstein brought this monstrosity. Recall when the Patriot Act was passed, only one senator, Sen. Russ Feingold (D) voted against it.

Those that opposed this like Russ Feingold and Ron Paul were dismissed as fringe and not serious. They warned it was only a matter of time when these surveillance and data collection capabilities would be used for political purposes domestically. With the exception of a few civil libertarian types the vast majority of Americans were quite happy to voluntarily give up their liberty for perceived increased security.

Now the genie is out of the bottle. The Obama administration weaponized law enforcement and the IC for partisan political purposes. It is only a matter of time before the tables are turned and a GOP administration does the same and probably even worse. The Democrats who all now support the lawlessness at the IC and law enforcement will rue this day.

[Sid Finster]

As a member of the Feline-American Community, my suspicion with the memo is that anything emanating from Congress that is only four pages long will at most talk about the evidence and what it is and the conclusions it might lead to, but not present the evidence itself.

The other reason that Russiagate will continue to run is because it is useful to the Deep State. An aggressive prosecutor can always find an excuse to bring charges, especially if the target is engaged in high-level business or politics. If nothing else, all that need be done is to ask enough questions until an untruthful answer is given. Viola! Perjury or lying to investigators.

Therefore, Russiagate can be made into a serious threat to Trump at almost any time.

The takeaway is that as long as Trump is compliant, the Deep State need not make good on that threat. Trump will be allowed to hold office but not be allowed to hold any real power.