Following Revelations of DOJ Spying, PPSA Pledges to Share Any Response from NSA on Overdue FOIA Request Regarding Surveillance of Congress

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Late Thursday, news broke that the Department of Justice (DOJ) under the prior Administration accessed metadata belonging to members of the House Intelligence Committee, their aides and family members, including a minor.
 
The New York Times, which broke this story, called DOJ’s move an “extraordinary step of subpoenaing communications metadata from Members of Congress – a nearly unheard-of move outside corruption investigations.”
 
But was it? Or is it the first glint from an iceberg’s tip?
 
In December, 2020, PPSA anticipated this issue by filing a Freedom of Information Act request seeking records from NSA and five other departments and agencies on the possible surveillance of 48 current and former Members of Congress, including House Intelligence Committee Chairman Adam Schiff and then-Sen. Kamala Harris.
 
After NSA rejected this FOIA request, PPSA appealed the agency’s decision. The agency reversed its position pledging to process the records request, though the agency is now past the statutory deadline to produce responsive records.
 
In May, PPSA filed another FOIA request asking DOJ to produce records on how the department might be modifying, implementing or replacing two key memos establishing safeguards against the political misuse of federal investigations. PPSA had previously asked the department to make permanent rules requiring heightened scrutiny when federal officials, candidates and staff are targeted for surveillance. Meanwhile, a PPSA lawsuit to compel agency responses remains pending.
 
“As soon as we get information from NSA regarding the potential surveillance of Members of Congress, we’ll report that,” said Gene Schaerr, general counsel of PPSA. “And we are doubling down on our call for DOJ to make permanent rules regarding the investigation of federal officials and candidates.
 
“The First Amendment implications of investigations of Members of Congress are obvious,” Schaerr said. “Intelligence agencies under both Republican and Democratic administrations have shown a capacity to play fast-and-loose with surveillance. It is time to clean that up.”