The Project for Privacy and Surveillance Accountability announced today the filing of a motion that the U.S. District Court of Appeals compel the Department of Justice and the FBI to release records related to the unmasking of Members of Congress in surveilled communications.
This motion, which counters a motion filed by the government, is the latest twist in a long contest with between PPSA and the FBI. In December 2019, PPSA filed a Freedom of Information Act (FOIA) request asking for all correspondence between individual Members of Congress and any agency, or between an agency and Congressional leadership, or with intelligence committees, concerning the “unmasking” of Senators and House Members. In September 2021, PPSA filed a lawsuit after almost two years of government stonewalling.
PPSA provided a list of Members of Congress from both parties and from each end of the ideological spectrum who had been at various times acerbic critics of the intelligence community.
The FBI is attempting to shield itself from this request by invoking the Glomar doctrine, which allows the government to refuse to even acknowledge the existence of such records if it involves matters of importance to national security. Among the records the FBI is refusing to conduct any search for includes letters sent to the FBI, despite several Members of Congress publicly discussing such correspondence.
“The government’s interpretation of the so-called Glomar doctrine in so overbroad and aggressive that it amounts to an administrative form of the state secrets privilege,” said Gene Schaerr, PPSA general counsel.
In its motion, PPSA noted that the FBI’s Glomar response fails in part because an agency cannot refuse to confirm or deny the existence of requested records unless the fact of the records’ existence is itself classified.
That is clearly not applicable to this case. In June, 2017, Sen. Lindsey Graham told Fox News: “I have written to the FBI, NSA, CIA and I want to know is there any incidental collection on Senator Lindsey Graham and if so, was that collection unmasked and if so who made the request?”
Schaerr asked: “Why can’t the government release correspondence from Senator Lindsey Graham, who publicly mentioned these letters? Where is the threat to national security in that? Why won’t the FBI even conduct a search for documents that are a matter of public record?”
PPSA will continue to report developments in this case.