Trump's Order to Reveal Docs Could Undermine Secret Court System
‘No one should be happy about the weaponization of declassification.’
When the Justice Department in July released a tranche of applications to the Foreign Intelligence Surveillance Court to wiretap former Trump campaign aide Carter Page, it provided the first public glimpse into one of the most tightly-held intelligence processes in the country.
No documents like those had never before been made public in the 40-year history of the clandestine court, which was established by Congress to regulate the federal government’s domestic collection of communications for counterintelligence purposes.
Now, President Trump has ordered the department to declassify a handful of additional, highly-sensitive pages from that release that were blacked out during the interagency review process—a highly controversial demand that overrides the recommendations of his own intelligence community.
The implications of that demand—along with the initial, unprecedented release of documents—are poised to reverberate beyond the Trump presidency, former national security officials and intelligence experts warn. Not only might the release of the additional pages from the applications expose sensitive intelligence sources and methods in the short term, the new spectre that an affidavit might become public could strain the Justice Department’s ability to be completely candid in future disclosures to the court.
The perception inside the executive branch is that the FISC is “absolutely airtight,” said David Kris, a former assistant attorney general for the National Security Division at the Justice Department and expert on the FISA process. Government officials must show the court probable cause that an individual is acting as an agent of a foreign power by producing the voluminous applications containing sensitive intelligence in order to obtain a surveillance warrant. The trust that the information in those documents will remain classified has been critical to the success of the process, Kris said. It allows the government to be candid with the court about the information it has and how it obtained it in an environment where the proposed target lacks his own legal representation, or even knowledge that he is the subject of such a proceeding—without fearing that information will leak.
The July release and Trump’s subsequent decision on Monday to override the classification recommendations “is putting a lot of strain on that assumption,” Kris said. “At the margins, there will be discretionary calls to include information or to not include some information.”
Kris and others argue there also is a risk that the pages might endanger sensitive human intelligence sources or expose a technical capability to U.S. adversaries. Another possible long-term consequence: if any of the information in the redacted pages comes from a third-party, that provider may be less willing to cooperate with the Justice Department in the future.
Trump told reporters at the White House that he was forcing the declassification of the materials because “what I want is total transparency.”
The president and a small group of vocal supporters on Capitol Hill have claimed that the application materials show that the Obama administration abused the FISA process to inappropriately spy on his campaign in order to stymie his chances in the 2016 election. Specifically, they argue that officials failed to disclose to the court that some of the information bolstering their case to wiretap Page came from a former British spy, Christopher Steele, who was paid in part by Hillary Clinton’s campaign.
The July release confirmed that officials told the court that Steele was hired by someone whose motive was to discredit the Trump campaign, but “masked” their identity, a common practice to protect the privacy of Americans implicated in such applications.
Civil liberties critics of the FISA system have long argued that it lacks transparency and favors the U.S. government over the alleged foreign agent. Debate flares over the issue whenever there’s a legislative opportunity to shift the balance between security and civil liberties. Reform efforts in 2015 resulted in the creation of a role for an “amicus curiae,” or friend of the court, to represent the interests of the person the government wishes to surveil. The discretion to appoint an amicus curiae rests with the court and it’s not known whether one was appointed in Page’s case.
One current amicus curiae for the court, Marc Zwillinger, said the information that the initial release provided about the U.S. intelligence gathering apparatus contributed to public understanding of a powerful program that intelligence officials consider critical to combating espionage and terrorism.
But although he has called for more transparency from the court in the past, he is skeptical of the president’s order to release selective pages that he has cherry-picked for release from an ongoing investigation in which his campaign own is implicated.
“We’ve already had a declassification review and the intelligence agencies have said release of this information would pose a grave danger to national security,” Zwillinger said.
“It really depends on how much you trust the president.”
While there is ongoing debate amongst national security professionals and civil liberties advocates about the need for further reforms to the law, there’s little public evidence to substantiate the president’s claims of “really bad things happening” insofar as the Page application is concerned.
Indeed, Sen. Richard Burr, N.C., the Republican chairman of the Senate Intelligence Committee called President Trump’s July order to release the secret wiretap applications “an awful precedent,” and said at the time that the documents showed that “there was great justification to the courts as to why a FISA application was approved.”
“What stands out to me frankly is that if this application is viewed as insufficient, I can't imagine any surveillance application passing muster,” Zwillinger told NPR in July.
Several former officials warily watching the president’s decisions argue the unprecedented disclosures forced by Trump and his allies on the Hill seem rooted in politics, not a broader reform effort. If the president is selectively declassifying a single application as a political cudgel against the Russia investigation—which his critics say is clearly the case—they argue he is setting a far more dangerous precedent than some of the institutional concerns.
“No one should be happy about the weaponization of declassification,” argued Steve Vladeck, national security professor at the University of Texas Law School.
“If your problem with the Carter Page warrant is that the standard is too lax, your claim is not that the system is abused, it’s that the system is abusive,” Vladeck continued. “The way to fix an abusive system is not to cherry-pick cases. The way to fix the system to reform it.”
So far, there has been no significant new FISA court reform legislation introduced on the Hill, nor have lawmakers or the president pushed for other applications to be made public.
As of late Tuesday, it was unclear when the specific pages of the warrant applications Trump identified might be made public—or whether the Justice Department will fight back on the president’s order. In a statement, the department said that the president’s order “triggers a declassification review process that is conducted by various agencies within the intelligence community, in conjunction with the White House Counsel, to seek to ensure the safety of America's national security interests”—a review process that those applications have already undergone and the president’s Monday night order appeared to override.
According to Rep. Adam Schiff, of California, the top Democrat on the House Intelligence Committee, FBI Director Chris Wray and Deputy Attorney General Rod Rosenstein told him that the release of the documents would be "a red line that must not be crossed as they may compromise sources and methods."
Rosenstein has said previously that the Justice Department “is not going to be extorted” in the fight over access to top-secret documents.