Attacks on FBI upend privacy debate
Civil libertarians who have criticized surveillance struggle with allies’ support for it in the Russia case.
WASHINGTON — 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 ACLU. 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. Re-
publican 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 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, typically skeptical of surveillance, to defend the law enforcement agencies that civil liberties groups have tried to constrain.
The California Democratic Party is defending the FBI against what it calls Nunes’ “open declaration of war.” Sen. Richard Blumenthal (D-Conn.) warns that Nunes is out to “degrade and discredit” the FBI. A petition from the liberal group Credo Action, which had amassed over 142,000 signatures as of Wednesday, lauded the bureau. The same group recently pilloried the agency in another petition.
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 .... What they are talking about is not an example of abuse,” said Liza Goitein, who co-directs the Liberty and National Security program at the Brennan Center for Justice at New York University law school.
What they are talking about is the four-page Nunes memo. The document discloses details used by law enforcement 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.
The argument by Nunes and President Trump that the memo is a damning indictment of this surveillance operation is challenged by legal experts; many say it does not show evidence of law enforcement abuse.
But Nunes’ charge that 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 American Civil Liberties Union’s legislative office in Washington. “When any congressman cries wolf ... it undermines others who truly have seen abuse.”
The ACLU is not alone. Democrats are clamoring to publish their own memo, with details that shed light on how the warrant was obtained. 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.
And the New York Times has filed a case seeking to force the government to disclose all the materials used to get the warrant.
The increasing pressure on Republicans to release more information means the debate could go sideways for them, as the public learns more of the details of how surveillance is conducted.
As the Intelligence Committee deliberated 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 reauthorized. “This is a slippery slope I don’t think any of us want to see happen to our intelligence community,” she said.
But it’s fine with Sen. Ron Wyden (D-Ore.), who has led the fight in Congress to rein in 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 be disclosed, privacy advocates are asking allies on the left to tone down the praise they’ve 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.