Foreign Policy Research Institute A Nation Must Think Before it Acts The Risk to American Intelligence Operations: Devin Nunes and the False Carter Page Narrative
The Risk to American Intelligence Operations: Devin Nunes and the False Carter Page Narrative

The Risk to American Intelligence Operations: Devin Nunes and the False Carter Page Narrative

Since I first discussed the Carter Page FISA[1] Applications in February,[2] the partisanship that initially spawned the production of the Devin Nunes-sponsored memorandum accusing the Federal Bureau of Investigation (FBI) and Justice Department of FISA abuses[3] and that continues to supply the Nunes Memo with oxygen despite its demonstrable factual shortcomings has only intensified in ways that pose increasingly serious dangers to valuable intelligence sources and methods.

In July 2018, the Carter Page Applications became the first FISA applications ever publicly released, even in redacted form. As I explained in July,[4] what was made publicly available in those Applications provided no sustenance for the conspiratorial views of untoward political bias that are the central theme of the Nunes Memo. Then, again, as I noted, this was not particularly surprising given that Nunes, in an interview with Fox News this past February, admitted that he himself had not read the Page FISA Application (or, presumably, any of them)—a distancing from the facts that he has continued to employ even as he hectors the Department of Justice about its cooperation in supplying highly sensitive materials like those FISA applications to the House Intelligence Committee for purposes that bear little resemblance to legitimate congressional oversight.[5]

But keeping the facts, and the materials containing those facts, considerably beyond his own arm’s length, has not deterred Chairman Nunes from his appointed task of excoriating the FBI, insulting the Department of Justice, and endangering intelligence sources and methods. With the mid-term elections just weeks away, this weekend saw Nunes, Fox News, and the White House engage in a choreographed minuet intended to tear away the classified safeguards designed to protect the nation’s security and safeguard its intelligence sources and methods.

Nunes Talks and Fox Listens

The charade began on Sunday Morning Futures, the Fox Business News show hosted by Maria Bartiromo, who obligingly provided Nunes with a platform to launch a fusillade of criticism aimed, directly, at the Department of Justice and the FBI and, indirectly, at the Special Counsel. Nunes was appearing remotely from the “World Ag Forum” in Tulare, California, which seemed fitting given the amount of a certain agricultural by-product he was shoveling on behalf of his increasingly worn narrative. But he presumably had an audience since Trump had spent at least part of his Sunday morning touting Nunes’ appearance as “MANDATORY watching” for people seeking to understand “the massive governmental corruption and the Russian Hoax.”[6]

And so, the chairman of the House Intelligence Committee blathered on about the mainstream media “drinking the Russian Kool-Aid” (a phrase he used three separate times), while it ignored “the walls beginning to close in on corrupt officials at the Department of Justice and the FBI.” According to Nunes, the media’s myopic focus on the Special Counsel indictments misses the important question of whether there was collusion between the Trump campaign and Russia—“which the answer is ‘no.’”

Nothing in Nunes’ comments deviated from the script he has been promoting since the release of the Nunes Memo earlier this year. Even Bartiromo played her role by voicing lemming-like agreement in all of Nunes’ points and chiming in at the appropriate time to chide the “fake news” appearing in the mainstream press. In Nunes view, all of this could be more readily apparent to the American people if the White House declassifies the “Bruce Ohr documents” and the “Carter Page FISA” materials. According to Nunes, the president has no choice but “to declassify” and, to do his part, Nunes promised to help the American people reach the desired epiphany by releasing the transcripts of those numerous witnesses the House Intelligence Committee has deposed as part of its own “investigation.” Nunes expects to have all of this material publicly available before the election so long as the Office of the Director of National Intelligence doesn’t, in his words, “slow roll” the declassification effort.

According to Nunes, all of this declassification is necessary to achieve the “transparency” essential to exposing the false claims of collusion between the Trump campaign and Russia, and to rebut the “fake [Clinton] dirt” that was used to obtain the approval of the Foreign Intelligence Surveillance Court (FISC) to surveil Carter Page.

What’s Wrong with the Nunes Narrative

Let us start with the allegation of “fake [Clinton] dirt,” which is Nunes’ euphemism for the notorious Steele dossier. Nunes, and Fox, continue to peddle the false narrative that, without the salacious details of the Steele dossier, the Carter Page FISA applications would never have been approved—and the Steele dossier, according to the Nunes Memo, is the product of an unholy alliance between the Clinton campaign and corrupt officials at the Justice Department and the FBI. However, as I explained in August,[7] this theory fails on multiple levels. First, Carter Page had previously been established as a tool of Russian intelligence agents in an FBI counterintelligence investigation that led to the deportation of one Russian agent and the imprisonment of another following the filing of a 2015 criminal complaint. During that investigation, Page’s recruitment as a Russian intelligence asset had been confirmed via electronic surveillance of those Russian operatives. So, Carter Page already was legitimately on the FBI’s radar, and the predicate of Carter Page as Russian agent was well-established when Page joined the Trump campaign in early 2016.

Further confirmation for that predicate also was readily available. In April 2016, shortly after Page had been anointed as a Trump policy advisor, the National Review called him an “out-and-out Putinite” while noting that Page “ha[d] a direct financial interest in ending American sanctions against [the Kremlin’s state-run gas company] Gazprom.” The article also noted Page’s harsh condemnation of the Obama administration, and of American policy regarding Russian activities in the Ukraine. Page then returned to Russia in July 2016, while still a Trump foreign policy advisor, and gave a speech at the New Economics School in Moscow that continued his sharp criticism of American Russian policies while arguing that “Washington and other Western capitals have impeded potential progress through their often hypocritical focus on ideas such as democratization, inequality, corruption, and regime change.” Although Page subsequently has sought to minimize his activities while in Moscow on that July 2016 trip, he emailed Trump campaign staffers on July 8 about the “incredible insights and outreach I’ve received from a few Russian legislators and senior members of the Presidential administration here.” Separately, in a memo prepared for the Trump campaign, Page wrote, “In a private conversation, (Russian Prime Minister Arkady) Dvorkovich expressed strong support for Mr. Trump and a desire to work together toward devising better solutions in response to the vast range of current international problems.” Whether coincidentally or not, shortly after Page’s input to the Trump campaign, Trump associate J.D. Gordon successfully lobbied for a change to the Republican platform that benefitted Russia by inserting platform language vowing not to provide lethal aid to Ukrainians in their fight against Russian-backed separatists. Page has argued this was coincidence, but in a July 14, 2016 memo to Gordon, Page wrote: “As for the Ukraine amendment, excellent work.”

There is nothing lascivious or salacious about this depiction of Page’s activities in the Steele dossier—and that is the point. The prurient aspects of the Steele dossier, i.e., the “fake [Clinton] dirt,” involve the activities not of Carter Page, but of the current occupant of 1600 Pennsylvania Avenue, and those details are of little relevance to the question of whether there was probable cause to conclude that Carter Page was acting as a Russian agent. Examining what the dossier says about the activities of Carter Page reveals only truthful details about a July 2016 trip to Moscow where Page did, in fact, meet with senior Russian officials purportedly on the very topics about which Page spoke during his public comments made in Moscow.

With all of this information in hand, four different federal judges on the FISC unsurprisingly concluded that the probable cause standard had been met, and each authorized a FISA application to surveil Carter Page.

The Danger of Declassification

This all has been covered before and regurgitating the details of the Carter Page FISA surveillances is becoming as tedious as … well … listening to Devin Nunes misrepresent those details in his tiresome effort to besmirch the legitimacy of the Special Counsel’s investigation. But the stakes have increased with Sunday’s Nunes/Bartiromo choreography that has now been followed by the president’s decision, right on cue, to declassify a plethora of classified information including additional parts of the Carter Page FISA Applications.

As I noted in my earlier analysis of the redacted Carter Page FISA Applications first released in July,[8] the pervasive use of b(1), b(3) and b(7) annotations[9] appearing throughout the 412 pages of the Page FISA Applications suggest that large swaths of the information contained in those Applications is, and remains, properly classified for national security reasons. The cited b(3) exemptions most likely apply to the invocation of specific statutes (like the National Security Agency Act) that protect against the disclosure of those intelligence sources and methods that would be compromised if revealed. The use of the b(7) exemption is likely specific to FBI-originated redactions directed to protecting against the disclosure of law enforcement and counterintelligence techniques. Thus, while the substantive content of the redacted information remains secret, the cumulative effect of the redactions found in the applications suggests the existence of a highly classified counterintelligence investigation involving multiple agencies employing sensitive intelligence sources and methods that was pursuing, among other elements, the prospect that Carter Page was serving as a Russian agent.

Intelligence requires secrets, and the secrecy needed to properly conduct U.S. intelligence operations has been under assault throughout the contrived “investigation” orchestrated by the Republican majority on the House Intelligence Committee. With this latest one-two punch from both the drum major for that Republican majority and the elected official ultimately responsible for the effectiveness of U.S. intelligence activities, the protection of valuable sources and methods is further jeopardized. When secrecy is breached, the ability of foreign adversaries to neutralize sources and evade or exploit methods is enhanced at direct cost to U.S. intelligence capabilities.

No prudent intelligence officer would view “transparency” as among those factors properly introduced into the decision making employed in protecting intelligence sources and methods. Moreover, notwithstanding the questionable and irresponsible activities of Nunes and his Republican confederates, congressional recognition of the importance of sources and methods is reflected in multiple statutes addressing the need for their protection and the penalties for failing to do so.[10]

But, it is no longer clear that the intelligence sources and methods used to obtain the information included in the Carter Page FISA Applications, or the underlying information collected using those sources and methods, will be protected by the two institutions most responsible for their preservation—the executive and legislative branches of the federal government. With their recent orchestrated maneuvers, it seems increasingly likely that the President of the United States and the Chairman of the House Intelligence Committee are prepared to sacrifice intelligence capabilities to serve a partisan political agenda. While we do not yet know exactly what will be released, their willingness to expose fragile intelligence activities for craven political advantage creates a debilitating sense of unease about the prospects for the U.S. Intelligence Community during the tenure of this administration.

Stay tuned, there surely is more to come.

[1] “FISA” is the Foreign Intelligence Surveillance Act.

[2] George Croner, “Where’s the Beef: The House Intelligence Committee Memo Provides Few Answers and Leaves Many Questions,” FPRI E-Notes, February 6, 2018.

[3] Provocatively titled “Foreign Intelligence Surveillance Act Abuses at the Department of Justice and the Federal Bureau of Investigation” (the “Nunes Memo”), the FBI has expressed “grave concerns” about the “accuracy” of this “Memo” since its release.

[4] George Croner, “The Carter Page FISA Applications, Much Risk to FISA, Little New Insight But a Rebuff to the Nunes Narrative,” FPRI E-Notes, July 23, 2018.

[5] I wrote about the limits that define legitimate congressional oversight in “Intelligence Oversight or Forbidden Intrusion – How Far Can Congress Go?,” FPRI E-Notes, June 8, 2018.

[6] Michael Burke, “Trump Praises Fox News Show as ‘MANDATORY watching’ to understand government corruption, ‘Russian hoax,’” The Hill, September 16, 2018.

[7] George Croner, “Out ‘Foxed,’ the Vulpine Network Continues to Swing and Miss at the Carter Page Applications,” FPRI E-Notes, August 16, 2018.

[8] George Croner, “The Carter Page FISA Applications: Much Risk to FISA, Little New Insight, But a Rebuff to the Nunes Narrative,” FPRI E-Notes, July 23, 2018.

[9] Designating materials exempted from disclosure under the Freedom of Information Act, 5 U.S.C. § 552.

[10] See, e.g., 18 U.S.C. § 798 (protection against disclosure of classified information relating to communications intelligence activities); 50 U.S.C. § 402 Note (protection against disclosure of information related to the activities of the National Security Agency); 50 U.S.C. § 403 (protection against the disclosure of intelligence sources and methods).