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.