The following article by Charlie Savage and Adam Goldman was posted on the Washington Post website February 5, 2018:
WASHINGTON — The New York Times is asking the Foreign Intelligence Surveillance Court to unseal secret documents related to the wiretapping of Carter Page, the onetime Trump campaign adviser at the center of a disputed memo written by Republican staffers on the House Intelligence Committee.
The motion is unusual. No such wiretapping application materials apparently have become public since Congress first enacted the Foreign Intelligence Surveillance Act in 1978. That law regulates electronic spying on domestic soil — the interception of phone calls and emails — undertaken in the name of monitoring suspected spies and terrorists, as opposed to wiretapping for investigating ordinary criminal suspects.
Normally, even the existence of such material is a closely guarded secret. While applications for criminal wiretaps often eventually become public, the government has refused to disclose the contents of applications for intelligence wiretaps — even to defendants who are later prosecuted on the basis of information derived from them.
But President Trump lowered the shield of secrecy surrounding such materials on Friday by declassifying the Republican memo about Mr. Page, after finding that the public interest in disclosing its contents outweighed any need to protect the information. Because Mr. Trump did so, The Times argues, there is no longer a justification “for the Page warrant orders and application materials to be withheld in their entirety,” and “disclosure would serve the public interest.”
The Republican memo acknowledged that the intelligence court had approved surveillance targeting Mr. Page in October 2016 and later approved three applications for 90-day extensions, meaning he was observed for at least a year under the warrant. The memo named the officials who signed off on the applications and described purported claims and purported omissions in those materials.
The central claim of the Republican memo, which was drafted under the direction of Representative Devin Nunes of California, the Republican chairman of the Intelligence Committee, is that law enforcement officials running the early stages of the investigation into Russia’s interference in the 2016 election and possible links to the Trump campaign abused their surveillance authorities and misled the court.
The memo contends that the application used material gathered by Christopher Steele, a former British intelligence agent, without disclosing to the court that the Democratic National Committee and the Hillary Clinton campaign financed his work as opposition research. The implication is that judges who approved the wiretapping did not know it might be biased and were thus misled about its credibility.
But the credibility of the accusations in the memo are themselves the subject of intense dispute. Democrats who have seen the underlying materials say the Republican memo contains serious material inaccuracies and omissions, such as failing to include unrelated evidence about Mr. Page and Russia that the court also saw and mischaracterizing other facts.
For example, Democrats say that the FISA judges were, in fact, told that the financing of Mr. Steele’s research was politically motivated, even if the funders were not identified by name.
They have produced their own, still-classified rebuttal memo, but the Republican majority on the House Intelligence Committee voted against making it public at the same time as their own memo.
Democrats are still pushing to make its contents public and the committee voted on Monday to do so, but it is not clear whether Mr. Trump will permit that to happen. If he objects, the full Republican-controlled Congress would then vote on whether to release the document.
“Given the overwhelming public interest in assessing the accuracy of the Nunes memorandum and knowing the actual basis for the Page surveillance orders,” The Times’s motion says, the court should direct the publication of its orders and the application materials “with only such limited redactions as may be essential to preserve information that remains properly classified notwithstanding the declassification and dissemination of the Nunes memorandum.”
The Times sent the motion and related documents to the Justice Department on Monday to commence the action. It also submitted a Freedom of Information Act request to the Justice Department on Friday asking the executive branch to disclose, following a declassification review, the same materials about the wiretapping of Mr. Page, who had left the Trump campaign a month before the government applied to wiretap him.
That request is not yet ripe for litigation. Separately, a USA Today reporter and the James Madison Project, an anti-secrecy organization, are pursuing a Freedom of Information Act lawsuit, filed last spring, asking the executive branch to disclose any FISA wiretap orders or applications targeting the Trump Organization, the Trump campaign, Mr. Trump or people associated with him.
In the motion asking the intelligence court to unseal the Page materials, The Times is being represented in part by the Yale Law School Media Freedom & Information Access Clinic.
View the post here.