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Experts warn: Dangerous politicizing of U.S. intelligence

by Jonathan Allen /

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WASHINGTON — The House Intelligence Committee's release of a memo declassified Friday by President Donald Trump alleging a government cover-up creates a dangerous precedent of partisans politicizing the government's secrets, according to veterans of the intelligence world.

"There is no precedent for this: to take a memorandum about the FISA application process, write a memo, vote it out on party lines — and then clearly there was some coordination with the White House," said Michael Allen, a former staff director for the committee under then-Chairman Mike Rogers, a Michigan Republican.

"If this leads to widespread condemnation (of the committee) and the whole exercise becomes discredited, people will not want to go there again," Allen said. "But if this comes off well for the committee, this will increase the risks that people will use the intelligence committee as a political platform."

Sen. Susan Collins, R-Maine, a member of the Senate’s Intelligence Committee, condemned her House colleagues for pushing forward on partisan lines.

"Oversight of the intelligence community, the FISA process and this investigation are far too important to be tarnished by partisanship," she said Friday. "When the Senate Intelligence Committee released a controversial report some years ago, we spent months meeting with the intelligence community to redact sensitive information. We also simultaneously voted on a bipartisan basis to release a rebuttal from the CIA and minority views, which were Republican views at that time."

The memo, drafted by aides to the House Intelligence Committee's chairman, Rep. Devin Nunes, R-Calif., and released Friday, alleges that officials at the Justice Department and the FBI acted improperly in obtaining a special Foreign Intelligence Surveillance court's authorization of warrants to monitor Carter Page, a foreign policy adviser to Trump's 2016 campaign.

The preamble asserts that the memo's findings "raise concerns with the legitimacy and legality" of DOJ and FBI officials with the court and "represent a troubling breakdown" of processes put in place to prevent abuses of Americans' civil liberties. In particular, the memo takes issue with U.S. officials using an anti-Trump dossier compiled by onetime British spy Christopher Steele as part of the justification for obtaining the warrants without disclosing to the court that Steele had been paid by Democrats.

The creation and release of a classified memo by the committee — typically the domain of the executive branch of government — represents the first use of an obscure clause in the House rules that was established in 1977.

Democrats are furious about what they see as an attempt by congressional Republicans and the Trump administration to undermine the credibility of an ongoing investigation into whether Trump's campaign coordinated with Russia.

"The selective release and politicization of classified information sets a terrible precedent and will do long-term damage to the intelligence community and our law enforcement agencies," said Rep. Adam Schiff of California, the ranking Democrat on the House Intelligence Committee. "If potential intelligence sources know that their identities might be compromised when political winds arise, those sources of vital information will simply dry up, at great cost to our national security."

While Trump's most loyal allies on Capitol Hill pushed for the release of the memo, some Republicans expressed concern about the potential fallout.

"No Members of Congress-nor their staff-should risk divulging sensitive sources/methods of Intelligence for partisan gain," Rep. Charlie Dent, R-Pa., wrote on Twitter Friday. "This sets a dangerous precedent that may have far reaching implications."

The criticism wasn’t limited to Congress. On MSNBC Friday, former acting CIA director John McLaughlin said the White House should not have declassified the memo in the face of concerns expressed by top law-enforcement officials.

"Just to step back a bit here, it's worth saying in a single sentence what’s happening," McLaughlin said. "We have the president of the United States now having issued to the American public a memo that the director of the FBI says is false. That has never happened in our democracy."

House Speaker Paul Ryan, R-Wis., an ex-officio member of the Intelligence Committee, supported Nunes' decision but said Thursday that the allegations should not be taken as "an indictment" of the FBI, the Justice Department or special counsel Robert Mueller's Russia investigation.

Orin Kerr, a former Justice Department lawyer and U.S. attorney, wrote in a Lawfare blog post this week that the origins of Steele's payment would likely have little relevance to a court.

"The apparent idea is that the failure to adequately document the funding behind Steele's work is a huge deal and a fraud on the court," he wrote. "But as a matter of law, that seems pretty unlikely to me. When federal judges have faced similar claims in litigation, they have mostly rejected them out of hand."

Stephen Stigall, who worked on cases requiring FISA court authorization as a lawyer in the U.S. attorney's office in New Jersey, suggested the precedent set by House Republicans could lead to politics being prioritized over national security interests in the handling of U.S. secrets.

"If this starts to be a way to force declassification and analyze only parts and not the whole, then you’re running the risk every time of revealing any source or method and then allowing other aspects that have nothing to do with the law to take over," said Stigall, who now works as a white-collar defense lawyer at the firm Ballard Spahr.

That would "start to erode our ability to keep material classified," he said, "and that puts people in harm’s way."

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