President Donald Trump plans to declassify documents as early as this week about the FBI’s surveillance of campaign advisor Carter Page pursuant to the Foreign Intelligence Surveillance Act (FISA), as well as “the investigative activities of senior Justice Department lawyer Bruce Ohr,” according to a report in Axios. Trump supporters believe this will vindicate the President’s claims that the Russia investigation was broken from the start, while his detractors believe the release will constitute an unprecedented compromise of a national security investigation for political purposes. I will not take a position on this debate, because my focus is on what comes next.
After the dust has settled and the Russia investigation is either crippled or compromised (depending on your perspective), what other ramifications will this decision have? In my opinion, that is what should be driving the President’s decision-making — not how this will affect this particular investigation, but how it will affect others. And it will quite dramatically affect others.
To understand how this will play out in the long run, we have to first understand two basic concepts of transparency that are, essentially, two sides of the same coin. On the one side, you have the concept of “prior disclosure,” which means that the government cannot withhold information that it has previously released. On the other side, you have a phenomenon that doesn’t really have a catchy name, but boils down to the idea that certain information is kept secret (whether through classification or other means) not because of what it would reveal about a particular document but because of what it would reveal about other matters. For ease of discussion, I’ll call this concept “big picture withholding.”
What Is “Big Picture Withholding?”
This idea is best explained by example. First example: imagine that there is a footnote in the Page FISA application which states, “A search of the Signal Fortress database yielded no results about Carter Page.” This simple sentence conveys three pieces of information. The first piece of information is obvious: there are no records about Carter Page in the Signal Fortress database. Depending on the context of this footnote, that is likely to be of low importance because it reveals no real information about the Page investigation, and yet it is classified. Why would it be classified if it reveals nothing new about the investigation? The answer is, because of the other two pieces of information.
The second piece of information is much more basic, and therefore more easily overlooked: The Signal Fortress database exists. The mere existence of this (hypothetical) database has never been publicly revealed before. The third piece of information is even more revealing: this database is something the government uses in national security investigations. So now, thanks to this one footnote, we now know that a database exists called Signal Fortress and we know at least one of its purposes.
This is but one example. Let’s consider that the footnote stated instead that “No information about Russia was found in Carter Page’s Twitter Direct Messages.” Now we know that the government somehow has a way to read the Twitter Direct Messages of people, apparently without a warrant. That would be huge.
This is the type of painstaking analysis Freedom of Information Act (FOIA) officers perform (or at least, are supposed to perform) when reviewing records for release, especially law enforcement and intelligence records. For every sentence, they have to identify each discrete piece of information being relayed by that sentence, and then independently decide what effect would be of release each element.
This kind of effect is the reason most often relied upon to withhold information in law enforcement and intelligence agencies. In essence, they treat the public as hostile intelligence analysts, for the simple reason that hostile intelligence analysts can see anything anyone else in the public can see. In fact, there’s a whole field of intelligence analysis called Open Source Intelligence (OSINT) that is basically just that.
So What If a Database or Program Is Revealed? It’s Still Secret, Isn’t It?
OK, the fact that Signal Fortress is a thing that was used in the Carter Page investigation is now out there. What’s the big deal? We still don’t know anything about it.
Well, not exactly. This is where prior disclosure comes in. The primary relevance of the revelation that Signal Fortress exists isn’t just that it exists. It also carries with it a huge legal consequence: other records can no longer be withheld if the only reason for withholding is the fact that Signal Fortress is secret. Or, going with our second hypothetical, records about how FBI can access Twitter Direct Messages, or records about other cases where they did it, are now less protected, because of prior disclosure.
To be fair, just because one piece of information about something has been officially disclosed does not mean that everything about that subject has to be released. In our first example, just because the name “Signal Fortress” has been disclosed would not mean that FBI would have to release all records about how the database works and who it contains information about. This is generally called the “matching” requirement in prior disclosure cases, which generally boils down to the idea that the prior disclosure of a piece of information only prohibits the government from making withholdings that match that piece of information and nothing more. This limitation is best exemplified in the case Fitzgibbon v. CIA, in which the existence of a Congressional report revealing the presence of a CIA station in Iran in 1975 did not constitute a waiver of the government’s ability to withhold information about the station in any other years.
However, even with the matching requirement in place, there is a significant amount of power in even the most banal of revelations, simply because many things are classified or otherwise withheld by law enforcement and intelligence agencies simply because they reveal such a fact as the existence of a program.
Consider the second example concerning Twitter Direct Messages. Such an ability might be classified not just because it would reveal the existence of such an ability, but because of the effect that might have; people who were seeking to avoid FBI scrutiny would no longer send Twitter Direct Messages. This effect is the reason that the false claim keeps reappearing that Osama bin Laden stopped using satellite phones after a report that the CIA could intercept his calls; the specific example is bogus, but the underlying idea is sound.
This analysis is further complicated by the fact that the matching requirement is not even a universal standard. Different courts treat it differently. For example, while a strict interpretation of Fitzgibbon is the standard in the D.C. Circuit, the Second Circuit stated in 2014 that the Fitzgibbon matching requirement “would make little sense” because “[a] FOIA requester would have little need for undisclosed information if it had to match precisely information previously disclosed.” The Second Circuit supported this holding with a meticulous analysis demonstrating the “questionable provenance” of the matching requirement in D.C. Circuit case law.
So the FBI could rest assured that a FOIA requester who chose to bring a case in Washington, D.C., would be unlikely to prevail in litigation over future requests based on the revelation that it could read Twitter Direct Messages. But the bureau would be in a significantly weaker position if the requester sued in New York.
So What’s the Point?
There are people who will say that the idea that FBI may be forced to release a significant amount of information about anything is an undeniably good thing, and there are people who think that every release poses an existential risk to the Republic. I have opinions on the matter, but they’re not represented here.
The purpose of this piece is to explain. Decisionmakers will make decisions, and the most that lawyers can generally hope for is that they make those decisions after considering all the facts. For people who think that there is far too much secrecy in the FISA process, this article might encourage them to support the President’s decision to release this information. For people who strongly believe that the strength of the FISA process lies in its secrecy, this article may provide ammunition to make their arguments against the President’s intended action. All I can do is make sure everyone has the best information about the consequences of such an action.
Whatever one’s view of the merits related to these particular files, blanket declassification of information related to the Page FISA warrant and Ohr’s counterintelligence work will have significant consequences beyond the Russia investigation.