The President’s Authority to Disclose Information, and the National Security Threat of the Nunes Mem
By: Maximilian Raileanu
A couple of times over the past year, the Trump Administration has come under heavy fire for the declassification of sensitive information: first concerning President Trump’s meeting with the Russian Foreign Minister, and now the Nunes memo. During the meeting with the foreign minister, the President disclosed intelligence detailing critical insights into the Islamic State, insights that had not been shared with certain allies. This sparked a debate as to whether the disclosure would pose significant national security threats. A similar debate among republicans and democrats has emerged regarding the Nunes memo that allegedly exposed misconduct by senior U.S. officials during an investigation into President Trump’s campaign. Amidst the political divide and the media frenzy these two instances have caused, the average citizen may be thinking, how can classified information be legally divulged so easily, and how much of a threat does the Nunes memo pose?
Authority for Presidential Disclosure of Confidential Information
Article II, section 2 of the United States Constitution states “[t]he President shall be Commander in Chief of the Army and Navy of the United States. . . .” Pursuant to this, the President can determine whether certain documents are to remain confidential as a part of the duties as Commander in Chief, or when concerning national security. The United States Supreme Court analyzed the language of Article II, section 2 and arrived at this conclusion in Department of Navy v. Egan. The Court explained that the President’s power primarily stems from Article II, and further acknowledged that the President may confer upon worthy individuals the rights to view or use such confidential information. What Section 2 and the Egan case do not mention, however, is how the president can use this power, and to whom he or she can disclose information. This is up to each particular president, and this is the reason for the ongoing debates revolving around national security. The President can unilaterally disclose information without worrying about a formal vetting process.
National Security Implications of the Nunes Memo, or lack thereof
So, does the Nunes memo pose a significant national security threat to the United States and its allies? Strictly viewing the actual language of the memo, the answer is more or less clear. The memo describes alleged Foreign Intelligence Surveillance Act (FISA) abuses by senior officials in the Department of Justice. Particularly, it discusses the DOJ’s FISA applications to investigate one Carter Page, a volunteer advisor to President Trump’s election campaign. FISA applications are confidential, which is most likely where the belief that this memo poses a national security threat, stems from. But let’s look closely.
The memo discusses in general terms the role that Christopher Steele, a former FBI source, played in formulating the FISA applications. The memo explains that certain information provided by Steele generated much of the probable cause required to obtain a FISA application to investigate Page. But reading closely, some of the information provided by Steele was, thanks to Steele, already public knowledge as of 2015. Steele admitted, in British court filings that are public knowledge, that he met with representatives from Yahoo News and other source outlets. So far, the Nunes memo is describing information that was already made public.
What about the fact that Steele was a former FBI source and British spy? Wouldn’t the release of this information compromise national security? Again, viewing the language of the memo, the FBI no longer trusted Steele because of his inability to keep information confidential, and thus terminated him as an FBI source. The national security implications for detailing the termination of an FBI source that had a habit of releasing confidential information appears to be minimal. Also, the alleged harm done to our allies is also minimal. Support for this statement lies within British court documents that detail a court’s order to have Steele undergo a lengthy pre-trial questioning that Steele’s lawyers believe would reveal confidential information that could harm the United Kingdom’s national interests. Notice that our longtime ally, the United Kingdom, is even interested in questioning Steele, despite national security threats to the UK. The memo then begins to unnecessarily delve into the political beliefs of Steele, and cannot be categorized as a national security threat.
The President of the United States, by express authorization from the Constitution, has the authority to disclose sensitive information without a formal vetting process. Exactly what information gets disclosed is up to the discretion of the President and his or her cabinet and advisors. The exact national security implications of these disclosures must be meticulously analyzed, and the primary way to do this is reading the language of the disclosure. The language of the Nunes memo contains an explanation of the political views and conduct of a formally terminated FBI informant, whom UK authorities have taken an interest in interrogating, some information contained in FISA applications, and the political views of two other FBI agents. FISA applications are confidential due to the nature of the information contained in them, which is perhaps why there was a large concern regarding national security when this memo was released. Having sufficiently examined the language of the memo, the potential national security threats stemming from the memo are minimal.