DECLASSIFY IT ALL, DONALD:

In last week's special edition of the Lawfare Podcast, I had the following exchange with David Kris, the country's leading authority on FISA, concerning whether there was any way to make public whatever discussion takes place between the FISC and the government on this matter:

Wittes: [I]f I were at either DOJ in your former position, that is head of NSD, or at the [FBI], I'd be looking at this and saying "wait a minute, the House Intelligence Committee isn't ultimately the actor who gets to decide whether our warrant application was defective. That job belongs to the FISC." My temptation would be to file a public document with the FISC saying, "Of course the Justice Department and the FBI is prepared to answer any questions or provide any information that the court might need in response . . . to this disclosure by the president and by the House intelligence committee," and allow the FISC to use that if it so chose to maybe issue a one sentence order that says, "no thanks. We're good"--or else to give the FISC the opportunity, by filing that, to say something in public. I'm wondering how plausible you think this is?

Kris: I think that's quite plausible. But first I think it is very likely that the government was updating the court across these four renewals that have been disclosed . . . as to the changing nature of the situation . . . and I would further imagine that now, the government is either on its way to the court or thinking about how to go to the court to officially advise the court of this memo (which I'm sure the judges have read in the newspaper). . . . So I would expect first that the government has provided notice updates as things evolve, which is the normal thing to do, and that they will now have to go to the court and . . . have some formal vehicle for acknowledging this and giving the court an opportunity to weigh in. The part that I don't know, and I think is part of a larger challenge here, is whether and to what extent any or all of that, either the fact of the interaction with the court and the fact of the court's response, or even the substance of it will be made public. This is part of a conundrum that the government is in here, similar to one that it's faced in, . . . for example, the Snowden situation, where certain information is made public and then in order to provide a fuller picture, the government is forced to exacerbate the classification problem and release further information that would be classified and it has to pay a price then in sources and methods. . . . That balance between those competing interests puts the government in a little bit of a box. . . . It may be easier to solve in correspondence with the court, and I can imagine ways the court could go public with a statement that didn't compromise sources and methods, so there may be a way out of it here. But it's part of a larger problem that can't be ignored whenever these types of situations come up.

Sophia Brill, writing on Lawfare Tuesday, was thinking along similar lines. Her post outlines several procedural mechanisms by which the court could publicly issue an order addressing the Nunes memo's claims. Such a disclosure would be highly unusual, she acknowledges--but "the FISC is uniquely positioned to resolve this question [of whether the allegations in the Nunes memo are true] while still avoiding the hemorrhaging of additional classified information."

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