You must pursue this investigation of Watergate even if it leads to the president. I'm innocent. You've got to believe I'm innocent. If you don't, take my job.
-- Richard Nixon
What do you think about this memo, Jim? You think there's anything to it?
A rather large amount of my email this week concerns The Memo.
The secret memo drafted by House Intelligence Committee chairman Devin Nunes, which allegedly describes some kind of chicanery at the FBI, particularly within the Russia Investigation. The Memo was supposedly written by Nunes and his staff, and is supposedly based on "highly classified" information that only a select group of House lawmakers have access to.
Now, naturally the various and assorted frothy conservatives have seized on this supposed memo as "evidence" of some "deep state" which is somehow in some way doing something something gazpacho to undermine Trump – and therefore America.
This memo, because of its supposed high level of classification, can't be released to the public.
Thus the problem: We are so far just required to take Devin Nunes word for it.
Apparently the memo is so classified, it can't even be shown to members of the Senate. Which is currently pissing off Senate Intelligence Committee Chairman Richard Burr to no end. And in addition to the Senate, Nunes has apparently rejected requests from the Federal Bureau of Investigation itself and the Justice Department to view the document.
Which is damned curious.
Because it would appear a large number of Republican congressman have seen this supposedly classified memo and, like my own idiot representative Matt Gaetz from the festering carbuncle that is Florida’s District 1, they are on every talk show in the country describing how it’s finally going to take down all of their political enemies and vindicate every suspicion they ever had about Barack Obama and Hillary Clinton.
Gaetz isn’t on the House Intelligence Committee. Yet it would appear that he is familiar with “every bit” of this classified memo.
In fact, a lot of Republican congressmen who aren’t on the House Intelligence Committee have, in their own words, seen this memo.
Hell, even former White House Deputy Assistant to the President, Seb Gorka, has apparently seen this memo. Emphasis on former.
Gorky Park here doesn’t work for the US Government any more.
Which makes me wonder how a guy who doesn’t have a clearance, got a look at this supposedly highly classified document and why we’re not investigating this blatant breach of security. It also makes me wonder why if Nunes can show this memo to Gaetz and Meadows and Gorka and any random hobo sleeping off a drunk on the Washington Mall, why he won’t show it to the Senate or the Justice Department or us, for that matter.
But I digress. Also, apologies for that crack about hobos, that was just mean to Steve Bannon for no reason.
Given my own background, my mail is unsurprisingly full of questions.
Do I think there’s anything to this memo?
I do think there’s something to it.
But probably not in the manner you imagine.
What do I think?
I think the memo is bullshit, through and through.
I think the memo is bullshit written by a guy who is literally (yes, literally) an expert in shoveling bullshit. We’ll come back to that.
Oh, I'm sure there's a memo.
And I'm sure it's all kinds of damning to the FBI.
And I'm sure that Barack Obama and Hillary Clinton feature prominently as villains.
And I’m sure that it says everything Republicans want it to say and more.
But I suspect that this memo is just about as reality free as any random episode of Hannity.
Let’s start here, I want you to ask yourself something: what intelligence?
Ask yourself what every alleged journalist in the country should be asking Devin Nunes right now: what intelligence?
Ask yourself what every Congressman and every Senator should be openly demanding from Devin Nunes right now: what intelligence?
The memo is supposedly based on "highly classified" intelligence. What intelligence?
Where did this intelligence come from? What agency produced this intelligence?
No, that’s not a rhetorical question. It’s a damned important one and everything starts here. What agency?
What agency is tasked and empowered to investigate the FBI?
And not only investigate the FBI, but an active and ongoing FBI investigation.
Who is that?
I mean, it's not the CIA or DIA or NSA or any other federal intelligence agency. That's not their job. Their job is foreign intelligence. They work for the Department of Defense. They don't investigate domestic law enforcement, and certainly not an agency under the Department of Justice. In fact, there are a couple of very specific laws preventing them from doing so for very good reason.
Those laws exist because once upon a time, a president used national intelligence agencies to target his political enemies. We called that Watergate. And after Nixon’s abuse of the National Security Agency, among others, laws were put in place to prevent that kind of abuse in the future.
This is that future.
So, who investigated the FBI?
The Secret Service doesn't do this kind of work.
So, who does that leave? The Department of Justice Inspector General?
Well yes, that should be the correct answer. The DOJ IG would be the only agency empowered to investigate the FBI.
But the DOJ IG answers to Jeff Sessions and ultimately to Donald Trump.
So, why would the Office of the DOJ’s Inspector General, a member of the Executive Branch turn over the results of such an investigation, assuming they actually conducted one, to the House Intelligence Committee? Who authorized that? I mean, by definition that authorization has to come from the Attorney General. So, why would Jeff Sessions have to ask Devin Nunes to see this memo? Doesn’t he already have access to the underlying intelligence? Doesn’t Trump?
And the IG is an investigatory organ, not an intelligence agency.
The only way this makes sense is if the DOJ IG wasn’t the entity who produced the intelligence.
So, where does that leave us?
Well, see, there is a difference between The Memo and the underlying intelligence that it is supposedly based on.
And there’s a difference between intelligence collection and an investigation. And so it is possible that one or more of those aforementioned national intelligence agencies did indeed produce the underlying information that Nunes used to then write his memo.
In point of fact, that’s the only possible way this information could have been produced, assuming it is in fact legitimate.
But this then becomes even more problematic and raises all kinds of red flags.
See, according to Nunes, the intelligence is highly classified. Not just the information, but how it was obtained. What the intelligence community calls method and means. Capability.
Now, any physical investigation of the FBI, by whatever agency, would have been public knowledge. Somebody would have had to authorize it. Warrants would have to be issued. And if there were inspectors interviewing FBI agents and carrying files out of FBI Headquarters, somebody would have noticed. Somebody would have said something. There would be no way to hide it. But there's been no report of any such thing, not even rumors of such. Nor would there be any reason to classify such an investigation, because the methodology for conducting it isn’t a secret.
You starting to understand?
So, this intelligence that Nunes is protecting, information gathering of this nature would, perforce, have to be clandestine and hands-off. The FBI couldn’t know about it. The public couldn’t know about it. The method and means used to gather the information would have to be covert.
That doesn't leave a lot of options.
Either the House Intelligence Committee has a mole in the FBI's Russia investigation feeding them information (which would be illegal) …
…OR they have access to the tools and expertise and collection capability of a certain US military intelligence agency.
One that specializes in electronic surveillance, signals and communications intelligence.
And that agency, ipso facto, would have to have the ability to monitor phone calls, emails, texts, and the internal communications of not only the FBI, but an ongoing, classified, investigation into possible government collusion with a foreign power.
And there’s only one US intelligence agency with that capability and that’s the National Security Agency, NSA.
And not only does NSA have this capability, but if what Nunes and other Republican congressmen are saying is true about the intelligence underlying this memo, then they used it.
Against the FBI.
Now, you’re going to want to think about that, take some time, and think it through all the way.
The implications are pretty damned ugly indeed.
First, who authorized this?
Who authorized a US military intelligence agency to spy on the FBI?
Somebody had to. So, who authorized NSA to monitor FBI communications?
There are only two options:
a) Either NSA was specifically tasked with monitoring the FBI, or
b) they were already doing it as part of a larger domestic collection effort.
Each option generates dozens of questions. And not one of those questions has a good answer.
Was there a FISA warrant? If so, what was it based on? Because FISA is the Foreign Intelligence Surveillance Court. Foreign. And the only way to get a FISA warrant to monitor Americans would be if you had reliable information indicating those Americas were colluding with a foreign target. Meaning in this case, you’d have to have evidence that the FBI, specifically somebody in the Mueller investigation, was communicating with Russia. Or was this done (if it was done) under some secret provision of the Patriot Act or similar such law? Or did they just bypass the law altogether? Power corrupts, absolute power corrupts absolutely. This is true no matter how many times you care to run the experiment. Worse, the intelligence cycle in America has been essentially broken and nonexistent since the end of the Cold War. Intelligence agencies have gone from being a supporting function which gathers information in direct response to a specific need to self-licking ice cream cones which gather information for the sake of gathering information based on their own internal tasking. And I’m not the only one who’s noticed this. This is an incredibly dangerous situation. No intelligence agency should be able to generate its own targets, that tasking should always come from an outside consumer. Because the power these agencies command is beyond anything you can imagine, the potential for abuse is almost astronomical, and the only thing holding them in check is that they must answer to higher authority. Since the end of the Cold War, that authority has become increasingly detached.
If the FBI – the FBI! – was a target of domestic spying, what other government departments are under surveillance?
When did it begin? With Bush after 9-11? With Obama? With Trump? Is this intelligence gathering against the US government by US Intelligence assets still ongoing?
What is the scope of this effort? Is monitoring of government communications part of a larger operation? One that monitors us all?
Who is the intelligence consumer? Intelligence isn’t generated in a vacuum. This kind of collection is expensive. It has to be funded. Meaning there has to be congressional appropriations. Meaning there is review and oversight (more or less, often the latter). Meaning there has to be a reason for it. Meaning there has to be a requirement. Meaning that requirement is set by a consumer. Who is that consumer? The President? Congress? NSA itself? Who? Because this very much matters.
How is the information stored? For how long? Who has access to it? What are the protocols for ensuring that it isn’t corrupted or manipulated or edited or sold to Wikileaks?
Which ultimately brings us to the question of why this information was given to Devin Nunes and the House Intelligence Committee in the first place and apparently not the President.
Because ultimately, the President is the executive agency for any such (assumed) intelligence program.
Which is damned curious indeed.
And it gets more damned curious the more you look at it.
The President is the Executive. Tasking for all the intelligence agencies is ultimately based on his authority.
The President tasks national intelligence, not Congress.
The President is the national classification authority. In accordance with US Code and Executive Order 12356, only the President, or his delegated subordinate authority, can classify or declassify information. Only the President or his delegated subordinate authority can authorize access to classified information.
By law, Devin Nunes cannot declassify or release this memo. Only the President or his delegated subordinate authority can do so.
Nor can Nunes declassify the underlying intelligence. Only the President can authorize that.
Nor can Nunes grant access to that information. Only the President can do that.
Nor can Nunes keep the memo from the President based on “classification,” the President is the classification authority, not Nunes. Nunes doesn’t decide who gets access to classified information, that’s the President’s job.
Which brings us back around to why Devin Nunes has access to classified intelligence information that the president, apparently, does not. Because otherwise why would the Justice Department, which works directly for the President, have to ask Nunes to see the information?
And why is Nunes giving his fellow Freedom Caucus members access to it?
Now, if you’ve been paying attention, you noticed a problem with that last sentence.
As I noted up above, there’s a difference between the intelligence and a memo based on that intelligence.
And there are many layers to intelligence.
First is the method and means used to obtain the raw information, which could be anything from phone taps to intercepting texts to the metadata encapsulating electronic communications (which is separate from the actual data itself) to watching people through a telephoto lens and so on. How the information is obtained is often more classified than the actual information itself.
Next is the raw intelligence, which often makes little or no sense to those not specifically trained in its analysis or without larger context.
And finally there is the finished intelligence product, the result of analysis and validation and weighting, tailored specifically to the consumer and sanitized of anything that consumer doesn’t need to know.
Now, here’s the thing: the consumer, despite all the various cautions that come with the finished product, can draw all sorts of conclusions from intelligence, some might even be accurate. Very often, they aren’t.
Let me give you a real-world example from my own personal experience: A few days before the Iraq War began, I led a security team onboard an Iraqi flagged vessel in the Persian Gulf. That vessel had once upon a time been a fishing trawler. Now, this is important because a trawler is a very specific type of vessel. A trawler is designed to drag a large net or nets behind itself, that net is called a trawl. There are many types of trawlers, depending on the species of sea creature they’re fishing for. This particular vessel was a stern trawler. Meaning it had a large ramp called a slipway and winch assembly in the stern. In short, the ship was designed to pull a large net behind itself, then when the net was full of fish, pull that net up the slipway onto the deck so it could be emptied. Now, it had been many years since this ship had gone to sea for fish. It was old and rusting and had passed through a dozen owners, each increasingly shadier. And it was in fact, a smuggler. Running contraband into and out of Iraq in defiance of UN Sanctions – and probably a dozen other countries around the Arabian Gulf. One of hundreds, perhaps thousands, of such vessels in every size and shape; smuggling is an old and honored trade in the region. It’s illegal, but not immoral. My team inspected the ship, I spoke to the master, but they were outbound from Iraq and empty and so we let them go. So long as we didn’t catch them shipping oil or weapons or helping members of Saddam’s regime escape, they weren’t my problem.
A day later the war started.
I was a Navy intelligence officer, it was my job to pay attention to damned near everything going on. And so, between missions, I was reading through a stack of strike orders … and I saw the name of that fishing trawler come up.
Someone had designated that ship as hostile and assigned an airstrike. And that airstrike was on the deck of the carrier preparing for launch.
Looking at the justification for the strike, I saw that there were “reports” that the vessel was laying mines. Mines? How the hell could they be laying mines? I’d just inspected that vessel, myself, with my own eyes. There were no mines. They hadn’t returned to port. They hadn’t rendezvoused with any other vessel. So, where did they get these mines? This had to be wrong, I thought. But when I queried the strike commander, I was told there were pictures of this vessel laying mines. Well, shit. Can’t argue with hard intel like that. Okay, I thought. It’s my fault. I missed something. It was war. None of us had slept since 9-11, I think. I was running on bad coffee and catnaps. I was doing several missions a day by then and things were starting to blur together. I must have missed something. But I just couldn’t see how.
So I asked for the pictures.
Nobody could produce them.
Several senior commanders told me they’d personally seen these pictures. But when I asked for them, nobody had a copy.
Now, we were about to kill 40 people, you’d think the intel that strike was based on would be right at the top of the queue. But it wasn’t.
And in fact, when I started pulling the thread, I could not find a source for this supposed intelligence at all.
With some considerable effort, I got the strike called off.
Instead of a bomb, we sent in a SEAL team. And instead of Saddam Fedayeen rolling mines down the stern chute and wishing death to America, they found a bunch of terrified smugglers sitting on a rusty old tub. They weren’t laying mines. They weren’t doing anything except trying desperately to stay the hell out of the line of fire.
So what happened?
What happened was that somebody read my intelligence report. They glossed over the part where we hadn’t found anything and grabbed onto the part where I’d described the vessel type: stern trawler.
Stern trawlers have slipways and winches.
Which might, maybe, sort of, somebody suggested, could be put to use for laying mines. And from there, the speculation grew among various staffers until that vessel ended up minutes away from being destroyed along with forty-three innocent (relatively speaking) Iraqi crewmen.
It’s war. Shit happens. We were all tired and amped and we’d been told a bunch of garbage by Washington D.C, most of which turned out to be wrong. Sometimes the fog of war is made by your own people. I eventually got a commendation for saving those Iraqi lives, but that’s not the reason I tell you this story. I tell you this story in particular because it’s one of the few examples from my past that I actually can tell you about and because it so aptly illustrates how even trained military commanders can take intelligence information and filter it through their own bias and create hobgoblins where none really exist.
Now, here’s the thing: Devin Nunes doesn’t even have that. He has no intelligence training at all.
No one, not one single member, on the House Intelligence Committee is an actual intelligence expert of any kind. In fact, they're not even amateurs. Not one of them, Republican or Democrat, has any actual intelligence background, no training, no experience. Of the very few members of the committee that have served in the military, none of them served in any intelligence capacity whatsoever. Two were enlisted army grunts, one was a surgeon, one was a JAG, another was a bomber pilot.
Nunes never served in the military. He was never a civilian intelligence analyst of any kind. He certainly doesn't have any kind of degree in it. He has no intelligence background at all.
Devin Nunes' degree, training, and experience is in agriculture. Specifically, cows.
He is quite literally an expert in bullshit.
You're going to want to think about this.
You're going to want to think about all of this.
Think about it in the context of the Constitution.
Think about it in the context of public perception.
Think about it in the context of government.
Think about it in the context of who has access to this kind of information and how that terrible power could be abused.
Think about it in the context of freedom and liberty and justice and ultimately what that means to the future of the Republic.
You're going to want to think about that, while bearing in mind the very government in question has recently taken to attacking itself, accusing various agencies of being part of some "Deep State.” Agencies such as the FBI. And suggesting that it be either dissolved or completely reorganized. Think about that in the context of this same government attacking the press, suggesting that it be shut down or even jailed for not saying what the President wants it to say.
This, this right here, is how agencies such as the Gestapo or the KGB are born and how information can be turned into a weapon to be used against a nation’s own citizens.
Which leads us to the final question, why isn’t the press asking these questions?
Why isn’t the press demanding answers to these questions?
There’s not much point in being the watchdog of freedom, if you’re going to sleep while burglars ransack liberty.
Until we have a better relationship between private performance and the public truth, as was demonstrated with Watergate, we as the public are absolutely right to remain suspicious, contemptuous even, of the secrecy and the misinformation which is the digest of our news.
-- John le Carre, British Intelligence expert, spy, author
Disclosure: I’m a retired US Navy intelligence officer. I worked in and around the National Security Agency and other various US and foreign intelligence agencies for more than 20 years. I still know many people who work for those various organizations, both civilian and military. Opinions and observations put forth in this essay are entirely my own. I would neither compromise the trust of my fellows nor betray my oath to protect my nation’s secrets. // Jim