Keeping DOJ and FBI Safe from a Partisan President & Congress

By General Michael Hayden

General Michael V. Hayden is a retired four-star General in the United States Air Force; he served as Director of the Central Intelligence Agency from 2006-2009 and as Director of the National Security Agency from 1999-2005.

The White House is deciding whether to make public a classified memo on the Russia investigation penned by House Intelligence Committee Chair Devin Nunes, R-Calif. The memo claims the FBI and Justice Department broke the rules when they attempted to extend surveillance on someone identified in press accounts as a member of the Trump presidential campaign.

The administration has promised to turn to the National Security Council and White House Legal Counsel for a policy and legal review, but I think we all know where this is going. Leaving the floor of the house after his State of the Union speech last night, President Donald Trump was caught on a hot mike assuring one member that it was “100%” that he would release the memo.

And that, despite a late, direct plea to the White House by Deputy Attorney General Rod Rosenstein and FBI Director Andrew McCabe not to do so, because they doubted the memo’s accuracy, feared classified information could be compromised and opposed the precedent this would set.

From the outside looking in, everything about this seems wrong. The memo is a highly partisan document, approved only by the Republicans on the House Intelligence committee, and there is no window for publicly airing dissenting interpretations by the committee’s Democrats.

When the Senate intelligence committee published a report on CIA detentions and interrogations, a report that I found flawed and inaccurate and political, at least the Republicans on the committee also got to weigh in publicly, issuing their own report and the agency also was able to respond with its own public commentary. That’s what you do when you want to be transparent and let people judge, even on a hotly partisan issue.

This current affair also politicizes a process—preparing and presenting a Foreign Intelligence Surveillance Act (FISA) application to the court—that I have never seen politicized before. A decision to cover a certain target is traditionally made by the Foreign Intelligence Surveillance Court based on a request prepared by career professionals governed by the rule of law, because we want to separate the necessary business of spying from the influence of politics.

By injecting the partisan divide into espionage, I fear that this current round will be destructive of the FISA process, congressional oversight, the effectiveness of law enforcement agencies, and frankly, to the office of the president itself. We are chiseling away at processes and institutions on which we currently depend – and on which we will depend in the future.

All this, however, is useful in the moment for the current incumbent who needs to discredit certain people and organizations so current motivations need to be seen in this light. There have already been other attempts—faux dramas around “unmasking” of U.S. identities in NSA reports and even charges that there is a “secret society” inside the FBI. Failing to undercut the legitimacy of federal law enforcement and intelligence with those, we now have this new accusation.

I find it striking that the Republicans have refused a DOJ and FBI offer to come before the committee, explain the process and this particular application, and answer any question the members still might have. The purposes of those pushing the memo seem better served by lingering ambiguity than clarity, by persistent questions more than precise answers.

Predictable allies have weighed in. “Release the memo” is a recurring theme on FoxNews. Indeed, former White House staffer and now Fox commentator Sebastian Gorka says this is a hundred times worse than the causes of the American Revolution. Ever willing to stoke American controversies, Russian-oriented social media accounts are racking up posts with the hashtag #ReleaseTheMemo.

It is some comfort that the Senate oversight committee, also under Republican control with access to the same background data but less driven by partisan fantasies, will have none of this.

But the train rolls on inexorably in the executive branch. If it is to be stopped, someone really important – someone still doing an important job – is going to have to break ranks and step up and say what many now out of government are already saying. Like former acting CIA Director John McLaughlin’s tweeted view of the memo: “…it’s a carefully picked bowl of cherries. Made all the more dishonest by holding back the minority rebuttal memo. A real debate needs both. Someone fears that.”

So a senior official in Justice or a senior official in intelligence needs to say, “We need to take a knee here. We need to take a deep breath. What we are now doing is destroying the institutions we need to keep America safe.”

The FBI Director’s strong statement Wednesday was exactly that, but will others follow, especially when working for a president whose desires are clear and who puts such a great weight on personal loyalty to him even at the expense of institutions, processes, propriety or established norms?

Other dissent might be expressed in private to increase the odds for success, perhaps during that promised NSC policy review. But if that fails, public dissenting statements calling attention to the damage being done would seem to be in order.

And who else might do that? A cabinet level official—perhaps involved with justice, law enforcement, intelligence or security whose equities seem particularly implicated—or perhaps just one concerned with how government should function?

And if not now, then when? What level of damage to institutions or people is needed to compel such action?

And what will be the ultimate institutional and personal casualty count if it never happens?

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