Washington is debating the significance of the memo released by House Intelligence Committee Chairman Devin Nunes, but this much should not be debatable: The effort by the FBI to prevent its release was scandalous. The ostensible reason for suppressing the memo was that it was classified. But now that we have seen the memo, it is hard to see anything that justifies a national security classification, much less the highest level of classification – top secret. No diplomatic secrets were revealed, and no sources or methods were exposed by making it public. If that is the case, then what was the real reason the FBI opposed the memo’s release? The bureau’s public statements made clear that their real concern was something other than the release of national security information, when the FBI declared it had “grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.”
But there is nothing in the law that allows the government to suppress the release of a document simply because it has “material omissions of fact.” The only justification for classifying information is to protect national security. Indeed, government officials are explicitly prohibited from preventing the release of a document under the guise of “classified information” because they believe it is politically biased or may embarrass the government. Executive Order 13526, signed by President Obama on Dec. 29, 2009, clearly says: “In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to: conceal violations of law, inefficiency, or administrative error; prevent embarrassment to a person, organization, or agency … or prevent or delay the release of information that does not require protection in the interest of the national security.”
Recall that in 2014, then-Senate Intelligence Committee Chairman Dianne Feinstein released a document prepared by committee Democrats about the CIA’s terrorist interrogation program that was rife with “material omissions of fact.” Indeed, Feinstein and her staff did not interview a single CIA official involved in the interrogation program, because they did not want to hear inconvenient facts that might undermine their predetermined narrative. Former Democratic Sen. Bob Kerrey of Nebraska, who had sat on the Intelligence Committee, decried “the partisan nature of this report.” Yet no one in the media decried its release, nor did the Obama administration suppress it. Instead, the Republican minority was allowed to publish a separate report and the CIA released a document of its own rebutting Feinstein’s many falsehoods – and then left it to the public to judge.
If the FBI thinks the Republican memo is incomplete or misleading, then, by all means, the bureau should prepare and release a rebuttal. But under no circumstances did they have the right to try to suppress it. Not only were they wrong on legal grounds to oppose the memo’s release, they were politically stupid for doing so. All they accomplished was to draw more attention to the document and its recitation of the bureau’s failings.
If the FBI knew the Christopher Steele dossier was paid for by the Hillary Clinton campaign and the Democratic National Committee when they submitted it as (in the words of the Nunes memo) “an essential part” of the Foreign Intelligence Surveillance Court application for a warrant to spy on an American citizen, and failed to tell the court its provenance, then that is corrupt. This revelation is embarrassing. But in a democracy, that does not allow them to use government classification laws to keep it from the American people.
The real threat to national security came not from the memo’s release, but from the FBI effort to suppress it. We depend on FISA warrants to obtain critical intelligence on terrorist threats to the American homeland. If the FBI’s actions cause Americans to lose trust in the FISA process, then their elected representatives may impose greater restrictions on it, making it harder for the intelligence community to protect America.
The only way to restore that trust is full transparency. Democrats and the FBI should be able to offer their versions of the story. But trying to keep this information from the public is corrupt, undemocratic and arguably unlawful. Let the American people see the evidence and decide who is right.
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