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

[steve]

We know the truth here. They want to keep the investigation going long enough to be able to interview Trump. At that point they ask him questions about this past sexual encounters. Then, they have enough to impeach him as we know they will get opposition support to impeach someone who lies about sex.

Steve

[jld]

What is the "Feline-American Community"?
I know only of the Elephantine and the Asinine ones.

[robt willmann]

The main "executive order" about classification of information is number 13526, which I think was last amended by president Obama at the end of his first year in office and published on 5 January 2010. You can easily read it because it is only 25 pages long--

https://www.gpo.gov/fdsys/pkg/FR-2010-01-05/pdf/E9-31418.pdf

What the so-called press and journalists, and members of Congress, and lawyers, and people on television should be doing is waving around section 1.7(a) of EO 13526--

"Sec. 1.7. Classification Prohibitions and Limitations. (a) In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not require protection in the interest of the national security."

The issues from the fishy and probably illegal conduct regarding surveillance, wiretapping, the unmasking of the names of people whose communications were intercepted, and Russian this-and-that before and after the 2016 presidential election seem to fall under section 1.7(a)(1) and (2), and in some cases, (4).

[Jack]

Kelley apparently says he's seen the memo and it will released to the public. It will be interesting to see if the Democrats push for declassification of the evidence or just play political football.

[Flavius]

The administration of justice is beginning to take on the aspect of a 3 ring circus with no ringmaster.
As another commenter has written, the 4 page memo is of secondary importance. What matters is the evidence that supports the conclusions that the memo specifies. The key question is whether the evidence that the memo adduces makes it reasonable to suspect that a Federal violation or violations have been perpetrated and what those potential violations are - specifically.
Trey Gowdy who is a former AUSA certainly understands what a Federal violation looks like and it appears evident that he believes that what he has seen, and included in the memo, meets the threshold.
The materials in that memo contain nothing that was not in the possession of the FBI and the DOJ and it should not have been necessary for a Congressional Committee to formulate the predicate for the case. Nevertheless, now that it has, some responsible authority has to make the decision as to whether there is going to be a case opened and who, and how, is it going to be handled.
The proper authority is the AG, Jeff Sessions. This has only marginal relevance to the free floating Trump/Russian collusion investigation that Mueller is running where I have yet to see precisely what laws Trump is suspected of breaking and the evidence supporting the predication. Sessions is not recused with respect to the allegations of the FBI, and potentially the CIA, being corruptly coopted to favor a candidate in a Presidential election.
Sessions needs to get on the stick and make a decision. Having a matter of this importance play out through competing tweets, media interviews, and tweets is not going to cut it and the country and the institutions involved are being badly served.
If Sessions isn't up to it, Trump should find someone who is. Eventually the blame will be on them for not getting to the bottom of this mess.

[Anna]

Why Rod Rosenstein is still in the US Justice Department? Seems that he is situated at the fulcrum of the Russiagate scandal, in a position of a principal traitor to the US Constitution:
http://theduran.com/russiagate-scandal-approaches-its-implosion-point/
"Allegedly the US attorney who represented the Justice Department when the application for this FISA warrant was presented to the FISA court, and who did not provide the FISA court with the information that it came from the Trump Dossier which the Democrats had paid for, was none other than Rod Rosenstein, who is now the Deputy Attorney General of the United States, and who was the Justice Department official who appointed Robert Mueller Special Counsel to investigate the Russiagate collusion allegations which are based on the Trump Dossier."
-- Moreover (from Comment section): "I would not doubt that it is Rosenstein whole is suppressing and inhibiting the investigation of the Wasserman-Schultz spy scandal."
-- Rod Rosenstein, the current Deputy Attorney General of the United States, has some interesting reputation.

[Richardstevenhack]

I second everyone reading Alexander Mercouris' piece at The Duran referenced by Anna:

Russiagate scandal approaches its implosion point
http://theduran.com/russiagate-scandal-approaches-its-implosion-point/

He believes that Rosenstein - the man who appointed Mueller - will be forced to resign after the memo comes out. And with that, it is possible that Mueller will be forced to resign.

He believes the Democratic competing memo will be released with Republican approval, albeit after being redacted since apparently it contains even more secret information than the Republican memo.

Alexander also comments on - and pretty much dismisses - the Dutch hacking story, pointing out that it seems the Dutch may or may not have been watching the alleged Russian hackers during the period in question of the alleged DNC "hack", as it appears they were only watching during the period 2014-2015.

See my comment in response to that at The Duran. While it may be true that Russian intelligence uses private Russian hacking groups on occasion, as TTG insists, there is zero evidence in the article either that this is true in the current case, and still less evidence that it has anything to do with the emails received by Wikileaks.

I continue to dismiss the Dutch story as a complete fabrication intended to bolster both Dutch intelligence and the Russiagate witch-hunt.

[Richardstevenhack]

Further comment on the Dutch hacking story from Jeffrey Carr, the primary debunker of the "DNC hack" hoax.

From Twitter:

When evaluating the Dutch intel services story for credibility, consider the known facts about the DNC breach by Cozy Bear / APT 29. Then decide. Will you believe what the facts say or what anon sources claim?

The DNC: Swimming In Malware But Never Once Targeted
https://medium.com/@jeffreycarr/the-dnc-swimming-in-malware-but-never-once-targeted-50cfd0ccf484

Points out that the alleged groups behind the DNC hack were known for specifically targeted phishing campaign. None of that happened in the alleged DNC "hack."

He also, in another Twitter post, references Robert Graham's analysis of why the North Korean WannaCry attribution is problematic.

"Why attribution is problematic. The best reason, and the one that attribution advocates hate, is that of 'shared assets'.

Graham's piece is worth reading:

The problematic Wannacry North Korea attribution
http://blog.erratasec.com/2018/01/the-problematic-wannacry-north-korea.html

In particular, this quote:

Quote:

"...North Korea develops external hacking "assets", supporting several external hacking groups in China, Japan, and South Korea. This is similar to how intelligence agencies develop human "assets" in foreign countries. While these assets do things for their handlers, they also have normal day jobs, and do many things that are wholly independent and even sometimes against their handler's interests.

For example, this Muckrock FOIA dump shows how "CIA assets" independently worked for Castro and assassinated a Panamanian president. That they also worked for the CIA does not make the CIA responsible for the Panamanian assassination.

That CIA/intelligence assets work this way is well-known and uncontroversial. The fact that countries use hacker assets like this is the controversial part. These hackers do act independently, yet we refuse to consider this when we want to "attribute" attacks.

End Quote

In other words, even if a hacker group occasionally sells intel they've found to an intelligence agency, that doesn't mean that's all they do on their own.

He also recommends reading this - and I heartily concur because it really trashes the DNC hoax based on the fact that everyone in the IC and infosec community was wrong about the Georgia hacking story.

From Russia, with Panic
Cozy bears, unsourced hacks—and a Silicon Valley shakedown
https://thebaffler.com/salvos/from-russia-with-panic-levine

This quote pretty much sums up my position:

Quote:

The level of wild assertion has gotten to the point that some of the most respected pro-Western voices in Russia’s opposition have expressed alarm. As much as they despise Putin, they don’t buy the bungled investigations. “In the real world outside of soap operas and spy novels . . . any conclusions concerning the hackers’ identity, motives and goals need to be based on solid, demonstrable evidence,” wrote Leonid Bershidsky. “At this point, it’s inadequate. This is particularly unfortunate given that the DNC hacks were among the defining events of the raging propaganda wars of 2016.”

End Quote

As I've been saying, without the DNC hack, much of "Russiagate" would be ignored. Even anti-Putin Russians understand this...

[Seamus Padraig]

Sadly, I think you're right. It's an old truism that propaganda doesn't work because its logic is airtight; it works because the target audience wants it to work.

[JohnB]

Indeed as I mentioned on another post Trump's in office but not power.

I wont comment on the domestic aspects of his State Of The Union Address but on Foreign Policy, no lessons from Bush/Obama years learned. Fairly worrying rhetoric which looks aimed at Iran & Hezbollah. Granted the jury is still out but I think we will be seeing more US military adventures in 2018.

John Bolton could have written the FP part of his speech and long as Trunp continues to talk this aggressive language he ain't going anywhere.

[Seamus Padraig]

Preach it, brother!

[Anna]

"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".
-- Still dreaming of Steele's revelations coming true? Any concern for the US Constitution? https://www.zerohedge.com/news/2018-01-31/game-over-adam-schiff-says-memo-could-lead-firings-mueller-rosenstein

[Lee A. Arnold]

Who cares about the Steele dossier? If the police get a tip, and they go to investigate and the tip turns out to be false, but they find evidence of another crime while investigating the tip, that crime can still be prosecuted. So if the Steele dossier has remained unverified (which we don't know), it still doesn't matter for the Mueller investigation.

The charges being made here are very different: that the Steele dossier was the only thing presented to get a FISA warrant, or else that it was misrepresented in the warrant application.

If the Democrats' counter-memo challenges either of those charges, and the underlying classified evidence would confirm the Democrats' counter-memo, then the Republicans may be the first to claim that the public cannot see the underlying evidence.

[robt willmann]

Now that The Memo from the House Intel Committee is almost certain to be released, and attempts by the Department of Justice and the FBI to prevent its disclosure in meetings have failed, the action is "going public".

The FBI released a statement on its website today, 31 January--

https://www.fbi.gov/news/pressrel/press-releases/fbi-statement-on-hpsci-memo

"The FBI takes seriously its obligations to the FISA Court and its compliance with procedures overseen by career professionals in the Department of Justice and the FBI. We are committed to working with the appropriate oversight entities to ensure the continuing integrity of the FISA process.

"With regard to the House Intelligence Committee’s memorandum, the FBI was provided a limited opportunity to review this memo the day before the committee voted to release it. As expressed during our initial review, we have grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy."

In response, the intelligence committee chairman, Representative Devin Nunes, made a statement on the committee's website, explaining that they have been on the receiving end of "material omissions" by the FBI in presentations to the committee (as have, he says, the courts)--

https://intelligence.house.gov/news/documentsingle.aspx?DocumentID=854

"Having stonewalled Congress' demands for information for nearly a year, it's no surprise to see the FBI and DOJ issue spurious objections to allowing the American people to see information related to surveillance abuses at these agencies. The FBI is intimately familiar with 'material omissions' with respect to their presentations to both Congress and the courts, and they are welcome to make public, to the greatest extent possible, all the information they have on these abuses. Regardless, it's clear that top officials used unverified information in a court document to fuel a counter-intelligence investigation during an American political campaign. Once the truth gets out, we can begin taking steps to ensure our intelligence agencies and courts are never misused like this again."

Rep. Nunes explicitly says that "top officials" used "unverified information" in a "court document".

[Jack]

So the FBI is worried about omissions? Ok then--let's put all the documents out there. Tell Americans the full story.

I don't think they want that either, though--they've been stonewalling Congress for a year. It's time for full transparency.

Rep. Mark Meadows.

https://twitter.com/RepMarkMeadows/status/958857040830529536

As some have been postulating here, the pushback by the FBI/DOJ & the Democrats will get met with the push to declassify all the evidence. This story ain't going away any time soon.

[Anna]

"If the Democrats' counter-memo challenges either of those charges..."
-- Dream on.
"Who cares about the Steele dossier? … The charges being made here are very different: that the Steele dossier was the only thing presented to get a FISA warrant..."
--Could you decide whether people "care" about the dossier or not and whether the unraveling story of the partisan use of the national security apparatus during the election of POTUS has any significance for the nation? It is hard to follow your logic.

[Valissa]

Thanks Robert for a great post on this topic. Appreciate all the data gathering and insightful analysis.

Thanks also to blue peacock for your insights and uncommon common sense about this situation.

I have to admit I have a hard time motivating myself to follow all the ins and outs of this, as well as Russiagate, because it seems to mostly be tribal political warfare. And there's a lot of evidence and detail to wade through so I appreciate anyone who can make my research easier, and better yet more entertaining.

Never been a Republican and not a fan, but the Democrats have seemingly lost their minds with this whole Russiagate ploy and also with the doubling down on the shrieking about racists and white supremacists. I am shocked with how lame their political strategies continue to be and this independent voter very much hopes the Democrats suffer for their stupidity and hubris. Of course, the Republicans could still snatch defeat from the jaws of victory. And mid term elections do tend to favor the opposition. A lot will depend on where the news cycle is on these political dramas in September and October.

As numerous people have said in this thread, it is unlikely that there will be any definitive resolution to these issues. And the political tribal warfare will continue. After all, politics is a type of 'Forever War'. Perhaps this is not a bad thing. Gridlock is a lot better IMO than more mega-page bills that nobody bothers to read that mostly waste tax payer money.

[Lee A. Arnold]

Anna wrote, " It is hard to follow your logic."

Three big questions:

1. Did the Trump and/or Clinton campaigns commit crimes?

2. Did U.S. law enforcement & intelligence engage in dishonest efforts against Trump and/or Clinton?

3. Is Trump trying to fire everybody in the chain of command who stands in the way, so he can fire Mueller?

The Steele dossier may be useless to answer #1 or #2. Why? Because "opposition research" by political campaigns is legal. They do it all the time. Then, if it was handed to the FBI, that is legal. It immediately turns that dossier into unverified raw intelligence from a paid informant. That is also legal. Then, it would be legal for honest law enforcement to add it to other intel items, in an application for a warrant to investigate further, to see if there is a real criminal case.

So the Steele dossier does NOT answer the question, one way or the other, about whether the FBI was really being honest or dishonest.

Now, maybe the Nunes memo sheds light on this. Or maybe the Nunes memo is cherry-picked misdirection, coming at the behest of the White House.

Zerohedge makes it sound like Adam Schiff said that the Nunes memo is a proper reason to fire Mueller and Rosenstein. But it is clear from Schiff's comments on camera that he thinks that the Nunes memo is a fake ruse to get Rosenstein fired -- in order to get Rosenstein out the way so Trump can fire Mueller. So Zerohedge is giving the wrong interpretation.

[Morongobill]

I am of the opinion that your take on presidential firing authority is correct and that, keeping it in mind, one way Trump could avoid being caught in a "perjury trap" would be to answer any and all questions on the firing of Comey with that answer. Period.

Let them try to take it to the federal courts or the court of public opinion. I would put my faith in Trump's sales ability on winning that latter battle.

[Jack]

All

Well worth listening to Sen. Rand Paul interview with Stephen Colbert on surveillance.

https://www.infowars.com/video-rand-paul-drops-truth-bomb-on-colbert/

[Anna]

"Then, it would be legal for honest law enforcement to add it to other intel items, in an application for a warrant to investigate further, to see if there is a real criminal case. So the Steele dossier does NOT answer the question, one way or the other, about whether the FBI was really being honest or dishonest."
--- Unlike your interpretation, Zerohedge interpretation relies on the known facts and documents, such as a transcript of two famous lovers' conversations, in which they admit that the FBI does not have any substantial evidence to pester Trump with surveillance.
Trump does not need to make any political contraption to fire Mueller. As for Rosenstein, it was his partisanship that put him in a hot spot. Manwhile, why there is a dead silence about these related matters:
Murder of Seth Rich?
Awan affair?
CrowdStrike partisan (rather treasonous) behavior?
The FBI leaks?
Wiener emails?

[Anna]

More on Adam Schiff (a cocky progeny of Yakob Schiff, the main financier of the Bolshevik revolution): https://www.zerohedge.com/news/2018-02-01/schiff-accuses-nunes-secretly-altering-fisa-memo-white-house-review
-- If everything is proper, then why the hysterics?
"In Schiff's letter, it is noted that "material changes" were made to the original four-page memo that members of the House have been able to view since January 18."
Byron York: " The total changes: A) Unknown number of 'grammatical and clarifying' fixes. B) One change requested by FBI due to sources & methods concerns. C) One two-word change requested by Democrats for accuracy."
Nunes: “The FBI is intimately familiar with ‘material omissions’ with respect to their presentations to both Congress and the courts, and they are welcome to make public, to the greatest extent possible, all the information they have on these abuses. Regardless, it’s clear that top officials used unverified information in a court document to fuel a counter-intelligence investigation during an American political campaign. Once the truth gets out, we can begin taking steps to ensure our intelligence agencies and courts are never misused like this again.”

[Sid Finster]

I am a large tabbycat that has learned to walk on my back feet and type, among other things.

[Sid Finster]

The Finster's blood runs icy cold.

[Jack]

The DOJ has an obligation to inform the court in the FISA application that some of the justification is based on unverified oppo research paid for by a rival political candidate. They can't pass it on as legitimate evidence since they have not verified it. That is why the Fusion GPS dossier is important. The court needs to be informed about the evidence to adjudicate the application.