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Why the Nunes memo is a very big deal

On Monday night, the House Intelligence Committee approved -- on a party line vote -- the public release of a memo al...

Posted: Jan 30, 2018 7:39 PM
Updated: Jan 30, 2018 7:39 PM

On Monday night, the House Intelligence Committee approved -- on a party line vote -- the public release of a memo alleging a litany of abuses by the FBI and the Justice Department. President Donald Trump now has five days to decide whether or not to allow the memo's release. While no final "OK" has been given, Trump had made little secret of his desire to release the memo.

In expectation of that decision, I reached out to 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.

Our conversation, conducted via email and lightly edited for flow, is below.

Cillizza: Walk me through the process going forward. The memo is now at the White House. When does Trump need to make a decision? And when might we see the memo publicly released?

Cordero: According to the House Rules, the President has five days to object to the release of the memo on national security grounds. As long as he does not object, the House Permanent Select Committee on Intelligence (HPSCI) can release the document. Given that timeline, and the statements from the White House that the President thinks the memo should be released publicly, it is possible that it will be released as early as Saturday, or, perhaps Monday, if business days are used.

There is still a possibility, however, that intelligence community and Department of Justice leadership, or perhaps Trump's national security lawyers who work in the White House, will persuade the President that releasing the memo in its current form will harm national security, and that it should be properly reviewed for declassification purposes. Alternatively, a new memo could be written in an unclassified format that is prepared specifically for public release.

Cillizza: How normal (or not) is a memo like this one - produced by the majority on the House Intelligence Committee that lots of intelligence officials haven't even seen?

Cordero: Highly unusual. Unprecedented, in fact. In my 18 years of professional and academic involvement with the Intelligence Community I have not observed HPSCI release a document using this procedure, and I am not aware of its having been used in the past (although I expect intelligence community historians to be hard at work this week).

The context is that information that is provided to the intelligence oversight committees is information provided by the executive branch of government. And, in circumstances when the intelligence committees write reports based on information provided by the community, they work with the relevant intelligence community agencies to review the reports and declassify information. That's why sometimes the committees produce reports that include both an unclassified report for public consumption, and a separate, classified version.

It is also not unusual for members of the committees to want to discuss publicly information they receive on the committee. This can be for a variety of reasons, including, for example, circumstances where those members are concerned about the use of legal authorities or oppose certain activities being undertaken by an agency or intelligence element as a policy matter.

Normally, what happens in those situations is the member of Congress will send the information he or she wants declassified to the specific agency, and/or to the Office of the Director of National Intelligence (ODNI) for review and approval. This is because the information belongs to the executive branch; not to the committees or the legislative branch. And it is officials in the Executive Branch -- the DNI and ultimately the President -- who have final classification or declassification decision-making authority.

When a member seeks that review, sometimes the intelligence community will approve the declassification, sometimes they will say "no," and sometimes they will declassify portions of the proposed statement or document. This is how members who respect the process and the national security equities at play, work.

Cillizza: What are the national security concerns - if any - to releasing this memo? And how should transparency be balanced with these concerns?

Cordero: I haven't seen the memo, so I can't speak to the precise national security risks that exist if it is released. At a general level, depending on the classification level of the document -- whether SECRET or TOP SECRET -- if released in an unauthorized fashion [it] could cause either "serious damage" or "exceptionally grave damage" to the national security of the United States.

If public reports are correct that the information in the memo is derived from applications that had been presented to and approved by the Foreign Intelligence Surveillance Court (FISC) then the information could include sensitive investigative information, and information about sources and methods; that is, how the intelligence community obtains its information. Release of such information without proper consideration of the harm that could result from the disclosure can jeopardize ongoing investigations, human sources, technical sources and important relationships with foreign intelligence services, as examples.

As a practical matter, it appears that the White House and the Chairman of the HPSCI have worked together in a way that bypassed the normal process of consultation and deference to the Intelligence Community. Proponents of #releasethememo might bill this as a transparency "win," but I think that scholars and knowledgeable observers of the intelligence community transparency efforts will understand that what is transpiring this week is the exact opposite, because it is "transparency" that will cloud the public's understanding of the actual intelligence information involved. It is hard to see this proposed release as meaningful transparency versus a harmful politicization of intelligence.

Cillizza: Let's say this memo is released. How will it land at the FBI and the broader intelligence community? And what - if any - are the long-term implications of doing something like this?

Cordero: The release of this memo under the process that is unfolding this week may cause serious damage to the relationship between the operational and policy professionals who work in the national security space in the executive branch, and the political leadership at the White House and in the House of Representatives.

There is an entire system of classification that exists to protect national security information. There are laws, policies and procedures. While many involved in the classification system understand that it is far from perfect, and needs to be improved and modernized, it is the system currently in place. There are professionals throughout government who work every day to ensure that national security information is appropriately protected. Those who mishandle classified information -- whether intentionally or deliberately -- are subject to a range of serious consequences, from administrative to criminal prosecution.

Cillizza: Finish this sentence: "Releasing the memo publicly would be a _______ thing for the country." Now, explain.

Cordero: "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.

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