UPDATE: FBI Will Not Confirm or Deny Surveillance of Presidential and Vice Presidential Candidates Going Back 40 Years
As the findings of the Horowitz Report continue to sink in, it is beyond dispute that the intelligence community abused its authority under the Foreign Intelligence Surveillance Act (FISA) to spy on members of the Trump presidential campaign and transition team. What is unclear is whether the FBI’s actions during the lead up to the 2016 election were outliers or business as usual for the intelligence community during a presidential campaign.
For the last several months, PPSA has used Freedom of Information Act requests to try to persuade the government to answer that question.
In September, we submitted a volley of FOIA requests to the FBI, CIA, ODNI, NSA, Department of Justice, and Department of State seeking (among other things) “[a]ll documents concerning the unmasking, or any request for unmasking, of any U.S. presidential candidate” since 1978. The FOIA request specifically sought information on both “those [candidates] who secured their party’s nomination and those who were defeated in the primaries,” as well as those candidates’ campaign workers. The agencies refused to comply, arguing that the requests were “overly burdensome and [did] not reasonably describe the records sought.”
Rather than appeal the decision, in October PPSA submitted a new round of FOIA requests to each of the agencies, seeking “[a]ll documents concerning the unmasking, targeting, upstreaming, or any request for unmasking, targeting, or upstreaming of any U.S. presidential or vice presidential candidate” or their staffs since 1978. Unlike the prior round of FOIA requests, here PPSA identified each presidential or vice presidential candidate by name in an effort to “reasonably describe the records sought.”
Yet this week the FBI has continued to dodge the question. Issuing a boiler plate Glomar response, the FBI claimed it could not “confirm or deny” whether it had spied on past presidential hopefuls. The agency claimed that the “mere acknowledgment of such records existence or nonexistence would in and of itself trigger harm to national security interests . . . and/or reveal intelligence sources or methods.” It also asserted that complying with PPSA’s requests “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”
These excuses are hard to take seriously.
For starters, the majority of the individuals identified by PPSA as former presidential or vice presidential candidates have passed away, nullifying any concern over personal privacy. In addition, PPSA has encouraged the government to redact any personal identifying information in responsive documents. With respect to the government’s national security concerns, it seems difficult to believe that responding in good faith to PPSA’s requests would actually reveal intelligence sources or methods or harm national security interests, particularly for those elections that took place 25-40 years ago.
It seems clear that the FBI is trying to hide something. The question is what?
PPSA intends to appeal the decision.
The Project for Privacy and Surveillance Accountability (PPSA) is pleased to add our name to a long list of distinguished civil liberties organizations in endorsing The Safeguarding Americans’ Private Records Act (SAPRA) of 2020. This legislation, supported by a bipartisan coalition of Progressive and Freedom Caucus members, should provide a strong benchmark for the House Judiciary Committee as it drafts its reauthorization of Section 215, which governs government access to our personal data held by businesses.
PPSA hopes SAPRA guides the HJC to craft Section 215 reauthorization with these strong protections.
We also propose that the HJC should go even farther than SAPRA to include greater First Amendment protections and expanded reliance by the FISC courts on amici. PPSA will be open to endorsing other strong bills in this spirit that arise in the House and Senate.
Ever wonder where your Member of Congress really stands on surveillance reform?
Does he or she talk a good game, but leave you concerned about the way your Member actually votes? Well, here is a handy, digital scorecard from a respected peer organization – decidethefuture.org – that rates Members of Congress not by what they say, but by how they vote.
Here’s a highly entertaining and insightful short on government surveillance from some of our civil liberties sister organizations. The programs have changed somewhat since this was made, but the overall perspective is spot on as Congress deliberates the reauthorization of the “business records provision” – Section 215, which gives the government easy access to some of our most sensitive data.
Government Sends Rapid “Neither Confirm Nor Deny” Response To PPSA's Query About Surveillance of Two Congressional Committees
WASHINGTON, D.C. – Four business days after receiving a Freedom of Information Act (FOIA) request from the Project for Privacy and Surveillance Accountability, the Office of the Director of National Intelligence answered the civil liberties organization with a “Glomar response.”
PPSA had asked Washington’s intelligence community – the FBI, CIA, NSA, ODNI, the Department of Justice and the Department of State – about possible electronic surveillance of Members of Congress serving on the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence.
The Glomar response, in the words of the ODNI’s letter to PPSA, means that the agency “can neither confirm nor deny the existence or non-existence of records responsive to of [sic] your request. The fact of the existence or non-existence of the requested records is itself currently and properly classified, and could reveal intelligence sources and methods information that is protected from disclosure …”
“We had asked for an expedited response, but a response in four business days from this bureaucracy is in my experience unprecedented,” said Gene Schaerr, PPSA general counsel. “To receive a Glomar response on the possible surveillance of House and Senate committee members is a troubling answer that should prompt deeper inquiries by Members of Congress.”
PPSA was inspired to file these requests after CATO Institute fellow Patrick Eddington filed FOIA requests to learn if the FBI collected national security or intelligence records on 23 civil liberties organizations. These organizations were alarmed when Eddington reported he received a Glomar response.
“PPSA and our supporters are rightly concerned about the potential for abuse of federal surveillance,” said Schaerr. “We give the government these surveillance authorities for the sole purpose of keeping us safe from terrorists and foreign spies. Given recent high-profile missteps by the FBI, civil liberties supporters and people in both parties have reason to worry about the potential for the abuse of this enormous grant of power.”
PPSA intends appeal the denial to the ODNI. If denied by ODNI, PPSA will file a lawsuit before the U.S. District Court of Appeals for the District of Columbia.
P: (202) 909-5824
When Christopher Wray, director of the FBI, testified before the House Judiciary Committee Wednesday on FBI oversight, Members expressed dismay over his written response regarding the DOJ Inspector General’s report on the 17 errors of omission and commission in the Carter Page FISA warrants.
Wray had called it “constructive criticism.”
Rep. Jim Jordan (R-OH) responded to Wray that “you’re not taking this seriously enough.”
Tom McClintock, Republican of California, gave the most eloquent rebuttal:
“The FBI is entrusted with the most terrifying powers that we can give our government – the power to ruin people’s lives, the power to invade their privacy, to launch pre-dawn raids on their homes, to bankrupt them with legal costs, to deprive them of their liberty.
“We entrust you and your agency with these powers to protect our liberty and protect our safety. And when those powers are abused in the manner that we saw in this whole Russian collusion hoax, that’s a direct threat to our freedom and the credibility of your agency."
PPSA Files Freedom of Information Act Requests: Are Members of Two Congressional Committees Being Surveilled?
WASHINGTON, D.C. – The Project for Privacy and Surveillance Accountability submitted Freedom of Information Act (FOIA) requests to Washington’s intelligence community – the FBI, CIA, NSA, ODNI, the Department of Justice and the Department of State. This request demands information related to the possible electronic surveillance of Members of Congress serving on the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence.
PPSA was prompted to file these requests after CATO Institute fellow Patrick Eddington filed FOIA requests to learn if the FBI collected national security or intelligence records on 23 civil liberties organizations. These organizations were alarmed when Eddington reported he received what is officially known as Glomar responses, a non-response/response in which the agencies can “neither affirm nor deny” the requested information.
“If such luminaries as the CATO Institute and Restore the Fourth might be subject to federal surveillance, is it possible that the intelligence community is also spying on Members of Congress?” asked Gene Schaerr, PPSA general counsel. “If we receive Glomar responses to these requests about members of the intelligence committees, that non-response itself will be a very telling answer.”
PPSA specifically requested all “documents, reports, memoranda, or communications” regarding the unmasking or upstreaming of any member of these two committees since 2008.
In the past, the intelligence community has been reluctant to disclose whether Congressmen or Senators have been unmasked or upstreamed, even to Members of Congress themselves.
“PPSA does not naïvely expect any answers except Glomar responses,” Schaerr said. “But a refusal by the intelligence community to answer whether they have surveilled Congress should clearly indicate that there is something here worth investigating.”
On Tuesday, the Project for Privacy and Surveillance Accountability submitted two Freedom of Information Act requests to the Department of Justice and the FBI, seeking any and all communications between department officials and David S. Kris since he resigned as President Obama's Deputy Attorney General for the National Security Division in early 2011. Kris was recently appointed by the Foreign Intelligence Surveillance Court to review the FBI's proposed plan to ensure that the "mistakes" made by the Bureau (and exposed in the Horowitz Report) during the Crossfire Hurricane Investigation are not repeated in future cases before the FISC. Kris's appointment has come under fire because of his defense of the FBI's handling of the Carter Page investigation and public criticism of the Nunes memo. These FOIA requests are designed to see if any agency officials solicited those comments or if Kris had any inside information about Crossfire Hurricane at the time he made those comments.
It's clear. The deficiencies of the FBI's FISA performance are symptoms of a broken system – US surveillance law needs statutory reform. Here's why:
We’ll have more to say as the implications of the Horowitz report emerge. Stay tuned.
Erik Jaffe, president of the Project for Privacy and Surveillance Accountability (PPSA) reacted to the decision by the leadership of the House Judiciary Committee to delay long-term reauthorization of Section 215 until early next year.
“Since the passage of the Patriot Act, the federal government has freely accessed Americans’ third-party data held by businesses if an investigating agency decides it is ‘relevant’ to national security. Recent hearings on the Hill confirm that this could include video from doorbell cameras and health records. There is no reason why the government wouldn’t likewise apply this standard to our genetic tests, or our personal videos stored on the cloud, or conversations overhead by virtual assistants like Amazon’s Alexa or Apple’s Siri.
“We took these concerns to the Hill with our peers in a broad, ideological coalition of civil liberties organizations. The decision by the leadership of the House Judiciary Committee to create a three-month window for further debate is a positive sign that we’ve been heard. We look forward to working with civil libertarians from left to right to make sure the weeks ahead are used to sharply define needed constitutional protections to safeguard Americans’ privacy and our rights under the First and Fourth Amendments.”