![](\"https:\/\/media.wired.com\/photos\/5a67d34bcbdb8102845aff75\/master\/pass\/DevinNunes.jpg\"\/)
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Credit to Author: Louise Matsakis| Date: Wed, 24 Jan 2018 20:15:44 +0000<\/strong><\/p>\n \u201cEXCLUSIVE: Infowars has obtained and is now releasing the secret FISA memo,\u201d conspiracy theorist Alex Jones blared on Twitter Tuesday. Jones thought he had a mysterious four-page document authored by Republican Congressman Devin Nunes<\/a>, who leads the House Intelligence Committee. The memo purportedly proves that intelligence officials abused surveillance powers authorized under the Foreign Intelligence Surveillance Act in investigating Trump\u2019s campaign ties to Russia.<\/p>\n Jones had not, in fact, obtained the Nunes memo. But that confusion, and the fuss over the memo more generally, demonstrate just how little the American public understands about how FISA actually works. That misunderstanding makes it easy for the law to be twisted for partisan purposes.<\/p>\n Republicans who have viewed the Nunes document will have you believe it\u2019s incredibly explosive. Congressman Matt Gaetz said<\/a> it\u2019s \u201cjaw-dropping,\u201d and called for its public release. Representative Steve King said<\/a> it was \u201cworse than Watergate.\u201d Over the past week, thousands of Americans\u2014as well as likely bots<\/a> linked to Russia\u2014have flooded Twitter with the hashtag #ReleaseTheMemo. Wikileaks even pledged<\/a> a $1 million reward to anyone who leaked the document to the organization. Everyone from Breitbart and Fox News to Mike Cernovich has talked about it ceaselessly.<\/p>\n 'It\u2019s easy to capitalize on Americans\u2019 misunderstandings about the law for partisan purposes.'<\/p>\n Elizabeth Goitein, Brennan Center for Justice<\/p>\n Nunes has successfully manufactured a controversy designed to undermine the Justice Department\u2019s investigation into the Trump campaign\u2019s connections to Russia, and he used FISA to do it. (This also isn't his first time<\/a>.) The 1978 surveillance law is not only densely complicated, but operates via a secret court staffed by judges entirely appointed by the Chief Justice of the Supreme Court, making it a prime target for conspiracy theories.<\/p>\n \u201cFISA is mysterious to most Americans. It\u2019s a complex statutory scheme,\u201d says Elizabeth Goitein, co-director of the Liberty and National Security program at New York University School of Law\u2019s Brennan Center for Justice. \u201cThe government routinely puts out a lot of misleading descriptions of it. It\u2019s easy to capitalize on Americans\u2019 misunderstandings about the law for partisan purposes if someone wants to do that.\u201d<\/p>\n The confusion over FISA has allowed Nunes and fellow Republicans to tell the public that intelligence officials abuse the law, while at the same time moving to expand its powers. Nunes, as well as Gaetz and King, all voted in favor<\/a> of expanding surveillance authorities authorized under Section 702 of FISA earlier this month. They cast their votes while at the same time telling the public that FISA is terribly abused by the FBI and the Justice Department. So what\u2019s really going on? Let\u2019s start with Nunes\u2019 memo.<\/p>\n Unlike the Alex Jones mix-up, the actual four-page document says, according to The New York Times<\/a>,<\/em> that intelligence officials improperly obtained a warrant to surveil Trump campaign advisor Carter Page<\/a>, who is believed to be connected to Russia. Here\u2019s where the mechanics of FISA come in.<\/p>\n Under Title 1 of the law, nicknamed \u201ctraditional FISA,\u201d law enforcement must go before the Foreign Intelligence Surveillance Court (FISC) to receive a warrant to surveil an individual or group of people. To get that warrant, law enforcement must show probable cause that a person is an agent of a foreign power. That means the government had to demonstrate Page was acting as an operative for Russia.<\/p>\n \u201cWhen we talk about traditional FISA and we say someone has to get a court order based on probable cause,\u201d says Goitein, \u201cthat means there has to be some sort of criminal activity, such as espionage, in order to qualify.\u201d<\/p>\n Nunes\u2019 memo reportedly alleges that to obtain their warrant, law enforcement officials relied on research from a dossier written by former British intelligence officer Christopher Steele. Yes, that<\/a><\/em> dossier, made public last year<\/a> and subsequently revealed to be financed in part by the Democratic National Committee and Hillary Clinton\u2019s campaign.<\/p>\n You can start to see rough outlines of the conspiracy theory already: Unverified research, funded by Democrats, led to the surveillance of an advisor to a Republican presidential candidate. But we don\u2019t know what other evidence law enforcement may have relied on to obtain a warrant to investigate Page. While the dossier may have been cited, officials could have also included a significant amount of evidence collected by the US intelligence community.<\/p>\n The House Intelligence Committee\u2019s lead Democrat, Adam Schiff, has said he believed the memo was misleading. \u201cIt\u2019s designed to push out a destructive narrative and further the attacks on the FBI. It\u2019s basically a burn-the-house down strategy to protect the president,\u201d he told Politico<\/a>.<\/p>\n Nunes apparently wants it to look like the FISC judge issued the warrant on shaky grounds. But to assess whether that\u2019s the case, you have to know again how FISA works.<\/p>\n All of the judges currently serving on the Foreign Intelligence Surveillance Court were appointed by a single person: Chief Justice John Roberts of the Supreme Court. The judges are tasked with overseeing requests for surveillance warrants. Most requests are granted, though the standard is usually higher to target a US person like Page, rather than a foreigner.<\/p>\n \u201cThey pretty infrequently turn down wiretap requests,\u201d says Julian Sanchez, a senior fellow at the Cato Institute studying technology, privacy, and civil liberties.<\/p>\n The FISC isn\u2019t necessarily free from abuses, and merits a healthy amount of skepticism, especially because so much of its process occurs behind closed doors. What we know usually comes from a small set of declassified opinions made public by the Director of National Intelligence\u2019s office.<\/p>\n Nunes and fellow House Republicans have focused their fretting on traditional FISA, rather than Section 702.<\/p>\n But Title 1 of FISA is not the part most susceptible to abuse. Lost in the conversation over Carter Page is an entirely separate portion of the law, called Section 702. This section doesn\u2019t involve a judge at all: It authorizes a series of warrantless<\/em> surveillance programs<\/a>, several of which were first made public by Edward Snowden<\/a>. Section 702 is the piece of FISA that most worries civil liberties activists at organizations like the ACLU and the Electronic Frontier Foundation. Experts say it\u2019s much more troublesome than traditional FISA, because it has far less oversight.<\/p>\n Nunes and fellow House Republicans have focused their fretting on traditional FISA, rather than Section 702. In fact, Nunes sponsored a version of a bill passed earlier this month<\/a> that greatly expanded the surveillance powers authorized under Section 702. He and other Republicans turned down an amendment that would have imposed a warrant requirement on the FBI, requiring officials to go before a judge before it searched through communications pertaining to Americans.<\/p>\n \u201cIt\u2019s a slightly different authority, but it\u2019s very hard for me to enter the mental space of someone who really believes there\u2019s this problem of political surveillance abuse and then is uninterested in imposing any additional safeguards on exactly the kind of thing they\u2019re worried about,\u201d says Sanchez.<\/p>\n If you just saw the #ReleaseTheMemo campaign, but didn\u2019t know that Nunes is one of Section 702\u2019s staunch supporters, you might think civil liberties was his primary concern. That\u2019s the point. Public confusion over various parts of FISA allow him to dupe the public into believing he cares about anything other than derailing investigations into Russia\u2019s meddling with the 2016 presidential campaign.<\/p>\n It\u2019s ultimately hard to say exactly what Nunes\u2019 \u201ctop secret\u201d document really contains, because it hasn\u2019t yet been released to the public. Despite cries from Twitter for its disclosure, it\u2019s possible that it won\u2019t ever see the light of day, because it could reveal how the FBI and other agencies gather intelligence. With that said, President Trump is reportedly inclined to release the memo, according to CNN<\/a>.<\/p>\n So far, it looks like only Congress has viewed the secret report. Not even the agencies it implicates have seen it: Both the FBI<\/a> and the Justice Department<\/a> say they haven\u2019t looked at the memo. And to be clear, neither has Alex Jones. InfoWars, the dubious site Jones\u2019 runs, didn\u2019t publish Nunes\u2019 memo, but actually a Foreign Intelligence Surveillance Court opinion made public eight months ago. A simple Google search turns up the document<\/a> on the Director of National Intelligence website. The opinion concerned Section 702, the part of FISA Nunes and his fellow Republicans just reauthorized and expanded.<\/p>\n Devin Nunes has coordinated with the White House before to use FISA<\/a> to deflect from the Russia investigation<\/p>\n And he led the charge to reauthorize warrantless surveillance under Section 702<\/a><\/p>\n Regardless of what the memo might say, Carter Page was still involved enough with foreign powers<\/a> to warrant surveillance\u2014which is to say, pretty deeply involved<\/p>\n