About That FBI ‘Source’

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Wonder what the FBI is hiding?

 

By

Kimberley A. Strassel

Kimberley A. Strassel

The Wall Street Journal

•  
• BiographyKimberley A. Strassel
• @KimStrassel
• Kim.Strassel@wsj.com

May 10, 2018 6:50 p.m. ET

 

The Department of Justice lost its latest battle with Congress Thursday when it allowed House Intelligence Committee members to view classified documents about a top-secret intelligence source that was part of the FBI’s investigation of the Trump campaign. Even without official confirmation of that source’s name, the news so far holds some stunning implications.

Among them is that the Justice Department and Federal Bureau of Investigation outright hid critical information from a congressional investigation. In a Thursday press conference, Speaker Paul Ryan bluntly noted that Intelligence Chairman Devin Nunes’s request for details on this secret source was “wholly appropriate,” “completely within the scope” of the committee’s long-running FBI investigation, and “something that probably should have been answered a while ago.” Translation: The department knew full well it should have turned this material over to congressional investigators last year, but instead deliberately concealed it.

House investigators nonetheless sniffed out a name, and Mr. Nunes in recent weeks issued a letter and a subpoena demanding more details. Deputy Attorney General Rod Rosenstein’s response was to double down—accusing the House of “extortion” and delivering a speech in which he claimed that “declining to open the FBI’s files to review” is a constitutional “duty.” Justice asked the White House to back its stonewall. And it even began spinning that daddy of all superspook arguments—that revealing any detail about this particular asset could result in “loss of human lives.”

 

This is desperation, and it strongly suggests that whatever is in these files is going to prove very uncomfortable to the FBI.

The bureau already has some explaining to do. Thanks to the Washington Post’s unnamed law-enforcement leakers, we know Mr. Nunes’s request deals with a “top secret intelligence source” of the FBI and CIA, who is a U.S. citizen and who was involved in the Russia collusion probe. When government agencies refer to sources, they mean people who appear to be average citizens but use their profession or contacts to spy for the agency. Ergo, we might take this to mean that the FBI secretly had a person on the payroll who used his or her non-FBI credentials to interact in some capacity with the Trump campaign.

This would amount to spying, and it is hugely disconcerting. It would also be a major escalation from the electronic surveillance we already knew about, which was bad enough. Obama political appointees rampantly “unmasked” Trump campaign officials to monitor their conversations, while the FBI played dirty with its surveillance warrant against Carter Page, failing to tell the Foreign Intelligence Surveillance Court that its supporting information came from the Hillary Clinton campaign. Now we find it may have also been rolling out human intelligence, John Le Carré style, to infiltrate the Trump campaign.

 

https://www.wsj.com/articles/about-that-fbi-source-1525992611

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The Mueller house of cards is collapsing.

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Figured the name of the source would have been leaked this weekend, must not be damaging to Trump.

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Maybe it somehow sneaked into the 9% non-negative coverage of the President.  The media are slipping.

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I've seen some headlines stating things like 'Nunes has backed down after private meeting" or language similar to that. I honestly haven't read any of the articles though.

 

What are the precedents for the Justice Department sharing classified intelligence with the House or Senate? Not every FBI investigation has a corresponding simultaneous House and Senate investigation but I'm sure there have been cases before. Do they typically cooperate completely and share everything? I think this is a perfect situation where discussing what is "standard practice" is important. We may argue that standard practice should no longer be standard, but you also couldn't blame the FBI for continuing to operate based on a standard that they have used in the past (without people arguing otherwise at the time).

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8 minutes ago, bcking said:

I've seen some headlines stating things like 'Nunes has backed down after private meeting" or language similar to that. I honestly haven't read any of the articles though.

 

What are the precedents for the Justice Department sharing classified intelligence with the House or Senate? Not every FBI investigation has a corresponding simultaneous House and Senate investigation but I'm sure there have been cases before. Do they typically cooperate completely and share everything? I think this is a perfect situation where discussing what is "standard practice" is important. We may argue that standard practice should no longer be standard, but you also couldn't blame the FBI for continuing to operate based on a standard that they have used in the past (without people arguing otherwise at the time).

Look up Gang of Eight.

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7 minutes ago, bcking said:

"standard practice" is important

Standard practice = pediatric cardiology

8 minutes ago, bcking said:

We may argue that standard practice should no longer be standard

Nonstandard practice = pediatric cardiology + Chicago-style pizzeria + transmission repair + landscape sculpturing

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2 minutes ago, Bill & Katya said:

Look up Gang of Eight.

That applies to intelligence gathering. I'm not yet convinced that would apply in this case.

 

The FBI also has a history of sharing with the House/Senate Intelligence committees and they have a history of keeping that information private and secret unless the FBI helps approve its release. That wasn't the case with the "memo", so Nunes screwed the pooch on that one.

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https://fas.org/sgp/crs/intel/R40698.pdf

 

Discussing the "Gang of Four", which is an even more selective group.

 

"In either case—whether a given briefing about non-covert action intelligence activities is limited to the Gang of Four, or provided to the full membership of the intelligence committees—the current statute conditions the provision of any such information on the need to protect from unauthorized disclosure classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters."

 

One could argue that a source for an investigation into the President of the United States (or his/her campaign) could be considered an exceptionally sensitive matter. You could probably argue both ways on that.

 

In the same document:

 

"The “Gang of Eight” procedure is statutorily based and provides that that the chairmen and ranking Members of the intelligence committee, along with the Speaker and minority leader of the House, and Senate majority and minority leaders—rather than the full membership of the intelligence committees— are to receive prior notice of particularly sensitive covert action programs, if the President determines that limited access to such programs is essential to meet extraordinary circumstances affecting vital U.S. interests."

 

The Gang of Eight typically applies to covert actions. So before the Executive Branch carries out a covert activity, they can inform the gang of eight. It would also be something that the President is aware of. In this case obviously the President himself wouldn't be up to date on the investigation either.

 

Again I'm not saying they shouldn't share the information, but I don't think there was an accepted standard for a situation like this that stated that they should have. Perhaps this will set a precedent for the future.

Edited May 14, 2018 by bcking

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More from that same source (itself quoting Congress):

 

"The Administration recognizes that the intelligence oversight committees of the House and Senate are authorized to receive such information. However, it is recognized that in extremely rare circumstances a need to preserve essential secrecy may result in a decision not to impart certain sensitive aspects of operations or collection programs to the oversight committees in order to protect extremely sensitive intelligence sources and methods.8 [emphasis added]"

 

The question is who decides whether the situation meets those requirements? Can Congress make that decision when they don't even have the information? It would have to be someone who is fully informed deciding that the information shouldn't be shared. The AG seems to me to be a reasonable person (or in this case the Acting AG for the case).

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1 hour ago, bcking said:

That applies to intelligence gathering. I'm not yet convinced that would apply in this case.

 

The FBI also has a history of sharing with the House/Senate Intelligence committees and they have a history of keeping that information private and secret unless the FBI helps approve its release. That wasn't the case with the "memo", so Nunes screwed the pooch on that one.

Regardless, Congress does have oversight responsibilities of the Exec. Branch departments, so someone needs to be able to see what is going on.  We are a representative republic after all.

 

Based on Mueller's latest screw up, it might be the Russians that get to see the information before our representatives do.

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1 hour ago, bcking said:

More from that same source (itself quoting Congress):

 

"The Administration recognizes that the intelligence oversight committees of the House and Senate are authorized to receive such information. However, it is recognized that in extremely rare circumstances a need to preserve essential secrecy may result in a decision not to impart certain sensitive aspects of operations or collection programs to the oversight committees in order to protect extremely sensitive intelligence sources and methods.8 [emphasis added]"

 

The question is who decides whether the situation meets those requirements? Can Congress make that decision when they don't even have the information? It would have to be someone who is fully informed deciding that the information shouldn't be shared. The AG seems to me to be a reasonable person (or in this case the Acting AG for the case).

I think you can re-state the bold part to essentially say "when there is a need for CYA by the FBI and DOJ there may be some extremely rare circumstances where a need to preserve essential secrecy may result in a decision not to impart certain sensitive (that makes us look bad) aspects of operations or collection programs (that might have been illegal) to the oversight committees (we really don't answer to anyone) in order to protect extremely sensitive intelligence sources (and the DOJ's collective posterior) and methods (see the illegal bit again)."

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20 minutes ago, Bill & Katya said:

I think you can re-state the bold part to essentially say "when there is a need for CYA by the FBI and DOJ there may be some extremely rare circumstances where a need to preserve essential secrecy may result in a decision not to impart certain sensitive (that makes us look bad) aspects of operations or collection programs (that might have been illegal) to the oversight committees (we really don't answer to anyone) in order to protect extremely sensitive intelligence sources (and the DOJ's collective posterior) and methods (see the illegal bit again)."

I mean that was a statement written by Congress, not by the DOJ. It comes from the 1980's.

 

So even Congress back then admitted there were some situations where information sharing shouldn't be done. The problem is these days everyone has been politicized (the House and Senate Intelligence Committees are horribly politicized at this point, but then so is the DoJ it seems).

 

My major point was that it was standard practice not to share some information if it was deemed necessary to preserve secrecy. The House Committee proved that they can't "keep their mouth shut" about confidential information shared with them, so they kind of proved the DoJ's concern.

 

29 minutes ago, Bill & Katya said:

Regardless, Congress does have oversight responsibilities of the Exec. Branch departments, so someone needs to be able to see what is going on.  We are a representative republic after all.

 

Based on Mueller's latest screw up, it might be the Russians that get to see the information before our representatives do.

I agree it seems surprising that even in some exceptional cases the DoJ is permitted to withhold information. However as far as I can tell that is indeed the standard that was established since before this case. This case may change that standard but at least at the time the FBI was acting appropriately and within their limits of power. 

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33 minutes ago, bcking said:

I mean that was a statement written by Congress, not by the DOJ. It comes from the 1980's.

 

So even Congress back then admitted there were some situations where information sharing shouldn't be done. The problem is these days everyone has been politicized (the House and Senate Intelligence Committees are horribly politicized at this point, but then so is the DoJ it seems).

 

My major point was that it was standard practice not to share some information if it was deemed necessary to preserve secrecy. The House Committee proved that they can't "keep their mouth shut" about confidential information shared with them, so they kind of proved the DoJ's concern.

 

I agree it seems surprising that even in some exceptional cases the DoJ is permitted to withhold information. However as far as I can tell that is indeed the standard that was established since before this case. This case may change that standard but at least at the time the FBI was acting appropriately and within their limits of power. 

In the 1980s, the DOJ and FBI was much more forthcoming with Congress so it was a much more friendly relationship.  Not so much now after Holder and Lynch.

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5 minutes ago, Bill & Katya said:

In the 1980s, the DOJ and FBI was much more forthcoming with Congress so it was a much more friendly relationship.  Not so much now after Holder and Lynch.

As I mentioned we also now have someone like Nunes who isn't even shy about his willingness to let his politics influence his decision making. We have a House Intelligence Committee that released a memo including classified information that was shared by the FBI that they did not consult the FBI on when they decided to release it.

 

Unfortunately both sides have fallen off their pedestals. As I said this may change the precedent moving forward but that doesn't change the fact that up until now it has been perfectly reasonable and within their limits for the FBI/DoJ to decide in certain circumstances to withhold information. Congress gave them that ability and unfortunately the person who has to decide what information to withhold has to be someone on the DoJ/FBI side since it would defeat the purpose if you share it for the purposes of deciding if you should share it.

 

As I said at the beginning though - Didn't Nunes go and have a private meeting and he has cooled off a bit since? (https://talkingpointsmemo.com/livewire/nunes-seems-to-back-off-threats-after-department-of-justice - Just a quick google)

 

I don't disagree that there probably should be some oversight without exceptions, but that wasn't how Congress set up their statute. They have up until now allowed the DoJ/FBI to decide, in rare circumstances, to not share information. People without access to the classified information can determine when it qualifies (for obvious reasons based on logic), so that has to be an internal decision. If they don't like that, they can set a new precedent (and presumably change that statute?) but in this case the FBI and DoJ is acting APPROPRIATELY based on current statutes that set forth how they share information.