Republicans
Have Four Easy Ways To #ReleaseTheMemo...Not Doing So Will Prove Them
Shameless Frauds
Glenn
Greenwald
20
January, 2018
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 this week has 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.
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.
Just read the classified doc @HPSCI re FISA abuse. I'm calling for its immediate public release w/relevant sourced material. The public must have access ASAP! #Transparency
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.
3. The Constitution protects members of Congress from prosecution for “any speech or debate in either House.”
Members
of Congress have legal immunity for acts they commit as part of the
legislative process. Article I, Section 6, clause 1 of the
Constitution states that “for any speech or debate in either House,
[Senators and Representatives] shall not be questioned in any other
place.” It is this constitutional shield that protected
Sen. Mike Gravel of Alaska from legal consequences in
1971 when he read sections of the Pentagon Papers during a meeting of
the Senate Subcommittee on Public Buildings and Grounds, and then
placed the rest of the Pentagon Papers into the Congressional Record.
It’s
true that members could face legal consequences for ancillary acts —
perhaps if they unlawfully removed the relevant material from the
congressional SCIF. But they could go to the House floor and
describe both the memo’s revelations and the underlying evidence
for it without any fear of legal consequences.
If
the memo really proves what they claim, it would seem to be their
patriotic duty would compel them do this. Ordinary citizens — like
Daniel Ellsberg, Edward Snowden, and Chelsea Manning — have risked
prison in order to expose what they believed were serious official
crimes; these members of Congress can do this without any of those
consequences. So what justifies their failure to do this?
4. Republicans can leak everything to the news media.
If
for some reason Trump and the congressional leadership refuse to use
any of the above options to vindicate themselves, a brave member of
Congress could turn whistleblower and transmit the classified proof
of the GOP’s claims about the memo to the news media.
Many
outlets now have secure methods of sending sensitive material to
them, such as Secure Drop. Those for The Intercept can be found here.
(All leaking entails risks, as we describe in our manual for
whistleblowers.)
*
* *
So
that’s that. All
Americans, particularly conservatives, should ask every Republican
making spectacular assertions about this memo when they will be using
the above ways to conclusively demonstrate that everything they’ve
said is based in rock-solid fact.
If
they do not, Republicans will conclusively demonstrate something
else.
They
will prove conclusively that all of this is about them shamelessly
making claims they do not actually believe, fraudulently
posturing as caring about one of the most vital, fundamental issues
facing the United States: how
the U.S. government uses the vast surveillance powers with which it
has been vested.
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