After years of toiling against the surveillance state, sounding alarms about privacy and warning of Orwellian law enforcement overreach, civil libertarians now find their talking points have been hijacked.
A serious case of intellectual whiplash has ensued.
Suddenly, House Intelligence Committee Chairman Devin Nunes — a longtime advocate for the nation’s intelligence agencies and their eavesdropping authority — has started talking like a lawyer for the American Civil Liberties Union. The same Republican congressman from Tulare who only weeks ago led the drive to extend for years the government’s vast electronic surveillance powers is railing about an FBI run amok and an anti-democratic “deep state” creepily monitoring political enemies.
For many on the left, the effort by Nunes and his allies to reinvent themselves as warriors against the surveillance apparatus is maddening.
Even some libertarians on the right are annoyed. Republican Rep. Justin Amash of Michigan recently weighed in on Twitter about the irony of Nunes and House Speaker Paul D. Ryan warning of surveillance abuse when “just three weeks ago … the speaker gave a dramatic floor speech about the importance of giving the FBI power to violate everyone’s civil liberties.”
After clamoring for a national reckoning on surveillance overreach, privacy advocates are dismayed that the debate finally is taking place on grounds thoroughly muddied by politics. They have an uninvited frontman, Nunes, who shares virtually none of their values and, they believe, has co-opted their cause for political convenience. And the coalitions they painstakingly built are fraying as a result.
Nunes’ attacks on the FBI have moved much of the left, which typically has been skeptical of surveillance, to rush to defend the law enforcement agencies that civil liberties groups have tried to constrain.
The California Democratic Party stepped up to defend the FBI against what it called Nunes’ “open declaration of war.” Sen. Richard Blumenthal (D-Conn.) warned in a floor speech that Nunes was out to “degrade and discredit” the FBI. A petition from the liberal group Credo Action, which had amassed 141,000 signatures as of Tuesday, lauded the bureau. Just recently, the same group had pilloried the agency in a petition accusing it of rampant abuse of its surveillance authority.
Many on the left are more worried about Nunes derailing the Russia investigation than about the surveillance.
“We need to see more transparency” around government monitoring, said Lisa Gilbert, vice president of legislative affairs at the watchdog group Public Citizen. “But it needs to be balanced with this investigation needing to continue.”
The way the debate has developed concerns privacy advocates.
“It’s a real shame that the debate over surveillance abuse is happening in this context,” said Liza Goitein, who co-directs the Liberty and National Security program at the Brennan Center for Justice, a public policy institute at New York University School of Law. “It does not belong here. What they are talking about is not an example of abuse.”
What they are talking about, of course, is the four-page Nunes memo. The document discloses some previously top-secret details used by law enforcement officials to persuade the court that oversees national security wiretaps to permit surveillance of Carter Page, a former advisor to Donald Trump’s presidential campaign.
The memo is an incomplete snapshot, including only details that Nunes handpicked amid a broader effort to discredit the investigation into the Trump campaign’s involvement with Russian operatives.
The argument by Nunes and Trump that the memo is a damning indictment of this particular surveillance operation is challenged by legal experts. Many of them say the Nunes memo does not show evidence of law enforcement abuse.
But the charge by Nunes that federal agencies misused their surveillance powers has complicated the battle that civil liberties groups have waged against those agencies. They complain Nunes has trivialized a serious issue in his bid to undermine the Russia investigation.
“What he was saying was happening was not happening” in this case, said Christopher Anders, deputy director of the ACLU’s legislative office in Washington. “When any congressman cries wolf about our problems, it undermines others who truly have seen abuse.”
Anders said the ACLU was initially intrigued by Nunes’ push to disclose top-secret information about a warrant obtained through the Foreign Intelligence Surveillance Act. “Anytime someone claims there is abuse of surveillance, we want to hear what the claims are and see all the facts,” Anders said. But then Republicans released only selective facts.
“We want to see the rest,” he said.
The ACLU is not the only one. Democrats are clamoring to publish their own memo, with additional details that shed light on how law enforcement obtained the warrant. The House Intelligence Committee voted to release that memo, but the White House has the authority to block its disclosure or redact any portion of it.
In addition, the New York Times has filed a case seeking to force the federal government to disclose all the materials used to get the warrant. Their suit piggybacks on the argument made by Nunes that the national interest in knowing what happened in this case outweighs national security concerns over disclosing classified details.
The increasing pressure on Republicans to release more information means the debate, ultimately, could go sideways for them, as the public learns more of the uncomfortable details of how secret surveillance is conducted. The nation’s attention could shift from the fiery accusations Nunes is making in the Page case to larger questions about the way the surveillance program, which Nunes has championed, is used every day.
As the Intelligence Committee deliberated over whether to release Nunes’ memo, Rep. Jackie Speier, a Bay Area Democrat, warned Republicans they were going down a path that could threaten the surveillance program that Congress just last month voted to reauthorize.
“Before long there will be a demand for the FISA application to be made public,” she said. “This is a slippery slope I don’t think any of us want to see happen to our intelligence community.”
But it’s fine with Sen. Ron Wyden (D-Ore.), who has led the fight in Congress to rein in government surveillance of Americans. The fight over the Nunes memo “lays bare the hypocrisy around the argument that pervasive secrecy is necessary for national security,” he said.
Still, as lawyers for Congress, the Trump administration and the media battle over which details of the Page warrant should and should not be disclosed, privacy advocates are appealing to their allies on the left to tone down all the praise they have been heaping on the FBI.
“Pretending the FBI is this man on the white horse — this paragon of virtue — is fundamentally at odds with the facts,” said Daniel Schuman, policy director of the progressive advocacy group Demand Progress.