PPSA Files Appeal to Force Agencies to Disclose Political Unmasking

The Project for Privacy and Surveillance Accountability today announced the filing of an appeal before the U.S. Court of Appeals for the D.C. Circuit, challenging the refusal of six government agencies to respond to Freedom of Information Act (FOIA) requests seeking information on the surveillance of campaign and transition officials in the 2016 election.

“We ask the court to understand that judicial doctrine is being distorted into a cover-up of alarming misbehavior by the U.S. intelligence community,” said Gene Schaerr, general counsel of PPSA. “Americans deserve to know if our government has used its sweeping surveillance authority under the Foreign Intelligence Surveillance Act (FISA) as a political weapon wielded against the campaign and presidential transition team of an opposing party.

“However you feel about the candidate in question, Donald Trump, what was done to him in 2016 can be done by an administration of either party in a future election,” Schaerr said.

The genesis of the issue was the surveillance of Trump campaign aide Carter Page, which Department of Justice Inspector General Michael Horowitz later investigated and found 17 “significant errors” and omissions in filings before the FISA Court. An FBI attorney was later convicted of introducing falsified evidence before the Foreign Intelligence Surveillance Court in that case. It later came to light that Obama Administration UN Ambassador Samantha Power, a political appointee and not an intelligence official, “unmasked” the identities of American citizens incidentally caught up in warrantless foreign surveillance more than 260 times. Over a 12-month period between 2015 and 2016 the Obama Administration unmasked 9,217 persons. Nor did this practice end with the election of Donald Trump, whose administration saw 16,721 unmaskings in 2018.

FOIA requests filed with the Department of Justice, the FBI, CIA, National Security Agency, Department of State and the Office of the Director of National Intelligence sought records regarding the unmasking and “upstreaming” (the interception of internet communications) of people, including Members of Congress, who were affiliated with the Trump campaign and transition. Each agency issued a “Glomar” response that refused to confirm or deny the existence of such records.

PPSA’s appeal challenges the government’s expansive interpretation of Glomar as a doctrine that “not only forbids the disclosure of such fundamental wrongdoing but does not even permit a preliminary search for such safely disclosable records.”

PPSA’s filing informs the court of a deep contradiction in the government’s case: “Because the government’s searchless responses failed to rule out the likelihood of finding those unprotected records, those responses cannot shield them from their FOIA-mandated duties to search for and disclose any such records.”

PPSA concludes that that the prospect of political surveillance “should be a question of deep concern to any American regardless of political ideology or affiliation.”
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For all these reasons, PPSA asks the court to vacate the district court’s grant of summary judgment and order the defendants to search for and disclose records regarding the unmasking and upstreaming of American citizens involved in the 2016 presidential campaign.