The House Intelligence Committee’s dueling partisan memos about FBI surveillance of a Trump campaign adviser will result in federal agents keeping secrets to themselves because they no longer trust Congress, experts warn.
“It’s already having an impact,” said Mike Rogers, a retired Michigan Republican congressman and ex-FBI agent who chaired the committee from 2011-2014. “The intelligence community isn’t going to lie to the committees. But they’ll go into the 100-question mode: if a committee only asks three questions, they’ll leave the other 97 on the table. They’re not going to volunteer information any more.”
Andy Arena, former FBI agent in charge of the Detroit field office, calls it giving the “Reader’s Digest” version of a classified briefing to Congress.
“As an FBI agent, I’m going to do what I’m legally bound to do,” said Arena, who is now a professor at Western Michigan University’s Cooley Law School. “You’re going to talk to the committee, but you’re going to be cringing and you’re going to give them the short version and not get into details. You’re not going to linger and swap war stories any more.”
Republicans on the House Intelligence Committee recently released a memo — approved by President Trump — alleging that FBI and Justice Department officials relied on an unsubstantiated dossier compiled by former British spy Christopher Steele and paid for by the Democratic National Committee to get a warrant to conduct surveillance of Carter Page, who served on the Trump campaign’s foreign policy advisory team.
Democrats charge that the memo, which was written by GOP aides at the direction of Chairman Devin Nunes, R-Calif., is misleading and is little more than an attempt by Trump and his allies to divert attention away from special counsel Robert Mueller’s Russia investigation. Mueller is probing Russian interference in the 2016 presidential election, possible collusion between the Trump campaign and Russians, and possible obstruction of justice by the president.
Democrats wrote a rebuttal memo to refute the findings of the Nunes memo, but Trump refused to release it Friday night. The White House said the Justice Department had concerns that the memo would create national security and law enforcement problems.
Michael McDaniel, former deputy assistant secretary for homeland defense strategy, prevention and mission assurance at the Pentagon, said he thinks the memos and the committee’s partisan sniping will increase the natural inclination of intelligence agencies to over-classify information to keep it secret.
“Beyond that, I think there will be a tendency now to think: ‘Should I even put this down in writing?’ ” said McDaniel, associate dean at Western Michigan University’s Cooley Law School, and an expert in homeland and national security law. “I think there will be a lot more internal second-guessing.”
The result is that Congress will have less information as they attempt to oversee the intelligence agencies and help keep the country safe, said former New Jersey Gov. Thomas Kean, who chaired the 9/11 Commission.
“There could be long-term damage here that will be hard to repair,” Kean said. “If the agencies don’t have confidence in the committees to protect sensitive documents, then that represents a serious breakdown. It undermines the ability of Congress to do its job and it could be very damaging to national security.”
America’s foreign allies are watching what’s happening in Congress and deciding not to share as much information with the United States, Rogers and Arena said.
“I just got back from overseas recently, and these (foreign) intelligence agencies are starting to put restrictions on the information they share — and it has to be classified in a way that members of Congress can’t get access to it,” Rogers said. “They’re genuinely concerned about information leaking out.”
Similarly, Arena said he had recently talked to someone involved in intelligence gathering for another nation and “they’re really looking seriously at whether they want to share information with us now.”
More at risk today
“We’re all at more risk today than we were last week (before the Nunes memo came out),” Arena said. “If the Brits, the Saudis or other allies decide not to share something because of this and we get hit (by terrorists), shame on them, but shame on us too.”
It also could discourage people from spying on their own countries to help the U.S. or from becoming FBI informants, Rogers said.
“They’re going to ask themselves: can I trust my personal safety in cooperating with the FBI on this,” Rogers said. “And their answer now may be: ‘I’m not sure.'”
Experts say the fierce partisan polarization in the House Intelligence Committee is a major departure from the panel’s past reputation as what Arena called “a bipartisan bastion of sanity in Washington.” Things have gotten so tense with the current panel that the GOP majority is erecting a wall between the Republican and Democratic staffs, which had been working together in one room.
“You always had a feeling (in the past) that they were looking to do the right thing,” Arena said, even when that meant that committee members were offering criticism privately to the agencies. “I don’t know that my successors are going to be looking at the committee in the same way.”
Since 2001, when the 9/11 attacks exposed intense distrust among intelligence agencies and inadequate oversight by Congress, Kean said much progress had been made.
He said the FBI, CIA and other intelligence agencies have acknowledged the grave risks of failing to share information, while lawmakers have generally taken more active roles in holding them accountable. But the memo battle in the current House committee is threatening to undo that progress, Kean said.
“This is the first time in my memory that partisanship threatens to do this kind of damage,” he said.
Problems can extend past D.C.
The potential damage, said former Obama administration attorney general Eric Holder, threatens to extend far beyond Washington and the interactions between agencies and lawmakers.
The constant rebukes of the FBI and Justice Department strike at the very credibility of the criminal justice system, where public trust in the work of agents and prosecutors on everyday cases is crucial.
“There will be a time…when a case will be tried in Illinois, Mississippi, Missouri…where a credibility determination will have to be made,” Holder said earlier this week, adding that jurors will have to assess the testimony offered by an FBI agent that may be at odds with witnesses and defendants.
The criticisms voiced by Republican lawmakers likely “will raise doubts in the minds of people as they listen to that FBI agent in…a way that never existed before,” Holder said.
“The long-term negative, collateral consequences are substantial; they’re real,” he said.