DOJ Says Trump's Tweets Declassifying All Russia Investigation Docs Doesn't Mean Anything; Judge Says They Better Go Ask Him

from the how's-that-work-again? dept

Investigative reporter/FOIA terrorist Jason Leopold has been suing the US government for a while now, trying to get access to the full Robert Mueller special counsel report investigating President Trump's alleged ties to Russia. While a version of the report has been released, it was heavily redacted, sometimes in important areas. Leopold and Buzzfeed are seeking the report along with additional interview details, emails, memos, letters, and charts used by Mueller's office in preparing it. Not surprisingly, the DOJ has been fighting this.

Then, on October 6th, Trump announced on Twitter (naturally) that he had "fully authorized the total declassification of any & all documents" regarding the investigation:

About 40 minutes later, he tweeted that "all Russia Hoax Scandal information was Declassified by me long ago. Unfortunately for our Country, people have acted very slowly":

That put the DOJ in a bit of a bind, because it had been saying in the lawsuit that it couldn't reveal this classified information. Leopold and his lawyers quickly filed an emergency motion, pointing out that the President had now declassified this information, and thus the DOJ no longer had any excuse to withhold it:

On October 6, 2020, the President of the United States directed that all documents pertaining to investigations into Russian interference in the 2016 election, which includes the Mueller investigation, be released to the public, and stated that he had, in fact, previously ordered this be done. Twitter, @realDonaldTrump, Oct. 6, 2020 at 8:41pm (“I have fully authorized the total Declassification of any & all documents pertaining to the single greatest political CRIME in American History, the Russia Hoax. Likewise, the Hillary Clinton Email Scandal. No redactions!”); Twitter, @realDonaldTrump, Oct. 6, 2020 at 9:21pm (“All Russia Hoax Scandal information was Declassified by me long ago. Unfortunately for our Country, people have acted very slowly, especially since it is perhaps the biggest political crime in the history of our Country. Act!!!”) (attached as Group Exhibit A). As a result, (1) Exemption 1 no longer applies because the records are no longer classified, and (2) any FOIA exemptions have been waived with the exception of disclosures prohibited by the Privacy Act, Rule 6(e), or other statutes that prohibit release.

As a result, Plaintiffs ask the Court to order the government to reprocess the 302s to remove all redactions or withholdings based on Exemption 1 or any discretionary exemptions like Exemption 5, by October 28, 2020. This should be a simple process that requires no independent analysis or consultation beyond simply reviewing which exemptions were asserted and removing the applicable redactions based solely on which exemption claimed.

It should be noted here (and this is kind of important) that the President of the United States has total freedom to declassify anything on his own whims at any time. And these tweets sure looked like him doing exactly that.

The DOJ has now decided to pretend that the statements from the President are not actually official statements from the President. In its opposition to Leopold's filing as well as the declaration in support, they argue that the President's tweets insisting that he is declassifying everything don't mean jack squat.

There is no basis to require the Federal Bureau of Investigation (“FBI”) to reprocess over 4,000 pages of FD-302s from the Special Counsel’s investigation into Russian interference in the 2016 Presidential election by October 28. The President’s recent statements on Twitter referencing the “declassification” of information were not an order to the Department of Justice (the “Department” or “DOJ”) to declassify the materials in this case.... The Twitter statements do not constitute a self-executing declassification order. ...

Oh really? The declaration from the Deputy Attorney General Bradley Weinsheimer basically says that White House lawyers told them to ignore the tweets.

As concerns the above-referenced tweets from the President, the Department has not received a declassification order from the President related to the materials at issue in this or any other FOIA case. After the President issued his statements on Twitter, I and other Department officials consulted with the White House Counsel's Office about the matters discussed in those statements, including potential declassification of documents related to the Russia Investigation and Hillary Clinton's emails, and whether the Twitter statements were meant as an order to alter any redactions that have already been taken on any materials in this case and other FOIA cases. The purpose of this consultation was to obtain the official position of the White House regarding the meaning and effect of the President's statements.

In other words, the DOJ is saying that it can't actually follow the plain language of the President's own tweets, and must check with the White House's lawyers to ask "did he really mean that?"

The White House Counsel's Office informed the Department that there is no order requiring wholesale declassification or disclosure of documents at issue in this matter. The Department was further informed that the President's statements on Twitter were not self-executing declassification orders and do not required the declassification of any particular documents. Instead, the President has authorized the Attorney General to declassify documents as part of his ongoing review of intelligence activities relating to the 2016 Presidential election and certain related matters. The Attorney General has not ordered the declassification and release of any of the redacted material in this case based on the President's tweets. The Department was further informed that the President's statements on Twitter do not require altering any redactions on any record at issue in this case, including, but not limited to, any redactions taken pursuant to any discretionary FOIA exemptions. Nor do the President's statements on Twitter prevent the Department from taking appropriate exemptions and redacting documents consistent with law and the positions the Department takes in FOIA matters.

So: we're just ignoring what the President tweeted because we want to.

Leopold and Buzzfeed have since responded by pointing out that the President regularly makes decrees by Twitter, and that those are him "conducting official business." The DOJ can't just ignore that:

or the last three years and nine months, the President has governed this country by tweet. The President has stipulated that he uses Twitter “to announce, describe, and defend his policies; to promote his Administration's legislative agenda; to announce official decisions; to engage with foreign political leaders; [and] to publicize state visits.” Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 231-32 (2d Cir. 2019) (emphasis added). His administration describes the President’s Twitter account as “one of the White House’s main vehicles for conducting official business” and his tweets are “official statements of the President.” Id. at 232. He has even used his tweets to make “official” “legal notice” to Congress. Donald J. Trump (@realDonaldTrump), Twitter (Jan. 5, 2020, 2:25 PM), available at https://twitter.com/realdonaldtrump/status/1213919480574812160 (notifying Congress the United States “will quickly & fully strike back, & perhaps in a disproportionate manner,” should Iran attack any U.S. target).

It is not at all surprising, therefore, that the President would use Twitter as the means by which he would declassify records and waive FOIA exemptions on behalf of the Executive Branch over which is holds Constitutional authority. Indeed, it would be surprising if he did so by any other means. The Court should reject the Government’s back-pedaling and order DOJ to comply with the President’s clear directive to declassify and remove redactions from the narrative FD-302 forms responsive to Plaintiffs’ FOIA requests. And if the Court requires any clarity beyond the President’s unequivocal tweets, it should direct the Office of White House Counsel to appear at the hearing scheduled for Friday.

The filing further notes that there is no rule that declassification can't come by tweet or has to take a special form. If the President says something is declassified it is declassified.

There is nothing in the Constitution, Executive Order 13,526, or otherwise that prohibits a president from declassifying records in whatever way and through whatever form of communication the president sees fit. Thus, an official presidential tweet stating “I have fully authorized the total Declassification of any & all documents pertaining to the single greatest political CRIME in American History, the Russia Hoax. . . . No redactions!” is more than sufficient to exercise that Constitutional authority. The government offers nothing indicating that the President did not mean exactly what he said or that he lacked the Constitutional authority to do what he has done. Instead, it claims that Plaintiffs “have pointed to no order declassifying the documents at issue in this case,” ECF No. 107 at 4, which is plainly wrong: the tweet is the order, and it came in an official statement directly from the President himself.

The filing also notes that what the White House counsel thinks doesn't matter. The only one who matters here is the President himself:

The Weinsheimer declaration does not support the government’s position, and in fact supports Plaintiffs’. As the declaration makes clear, the question is whether the tweets were “meant as an order to alter any redactions that have already been taken on any materials in this case and other cases.” .... But the declaration makes clear that neither the DOJ nor the White House Counsel’s Office actually attempted to get an answer to that question from the only person who can definitively answer it: the President. Instead, they sought, apparently without actually asking the President, to determine whether the President issued some further “self-executing declassification order” beyond the tweets and somehow concluded that the President merely “authorized the Attorney General to declassify documents as part of his ongoing review of intelligence activities relating to the 2016 Presidential election and certain related matters.”.... But the President himself has already made clear that this interpretation of his intent is wrong: he clearly stated in an official presidential communication that this same material “was Declassified by me long ago,” but “people have acted very slowly.”

This morning, in a hearing before Judge Reggie Walton (who is not known for being happy when the government plays games in front of him), it appears that Leopold's argument is absolutely winning the day. Walton told the DOJ that Trump's tweets seem pretty clear and he doesn't see how they can argue he didn't declassify stuff. He also seemed perturbed that no one actually asked the President what he meant, and postponed the rest of the hearing to tell the DOJ to go ask the President if he actually meant what he tweeted:

Of course, it now seems likely that the White House lawyers and the DOJ will very carefully explain to the President why they want him to say he didn't mean what he clearly said, potentially allowing him to walk back his fairly unequivocal statements. At the very least, though, that should enable reporters to question the President further on why he falsely claimed to have declassified stuff. At the end of the day, either all of the documents have been declassified or the President will need to admit that he lied about declassifying them.

Filed Under: declassification, doj, donald trump, jason leopold, reggie walton, robert mueller, russia investigation, tweets
Companies: buzzfeed, twitter

Court Hands Jason Leopold A Partial Victory In Case Involving Sealed Dockets And Electronic Surveillance

from the openness-with-a-small-'o' dept

A half-decade's worth of litigation by "FOIA terrorist" Jason Leopold is finally bearing fruit. The petition, filed in 2013 to peel back a few layers of opacity from the Feds' favorite court (DC District Court), has been partially granted by Chief Judge Beryl Howell. (h/t Mike Scarcella)

Nearly two years ago, substantial progress was made when Judge Howell ordered the US Attorney's Office (USAO) to examine sealed dockets (of which there are many -- the DC circuit is home to hundreds of dockets rendered invisible by government requests for secrecy) and to start unsealing anything that wasn't related to ongoing investigations.

The government fought back, but as the lengthy opinion [PDF] shows, there was much more cooperation between the USAO and Leopold than one would expect, given the government's antipathy towards him goes so far the Pentagon once offered Leopold a stack of documents in exchange for him promising to never file another FOIA request.

Several pages are given over to the facts of the case. They're definitely worth reading. It details the push-and-pull of the two parties, the logistical hurdles standing in the way of compliance, and the unexpected compromises made by both parties. Leopold was requesting access to Pen Register/Trap and Trace (PR/TT) requests and Stored Communications Act (SCA) warrants, many of which are apparently obtained by DOJ components with little input from from the USAO. Leopold agreed to limit his request to USAO documents, only to find out the USAO had no reliable system in place to track its own involvement in federal prosecutions.

In particular, determining whether the USAO or a different DOJ component had filed a PR/TT or SCA application would be challenging, as the USAO maintained no lists of docket numbers for PR/TT and SCA matters initiated by USAO prosecutors, and because the USAO’s internal tracking system for criminal investigations did not correspond to the Miscellaneous (“MC”) docket numbers assigned by the Clerk’s office. Moreover, even the USAO lacked access to the sealed MC dockets and, thus, could not determine which PR/TT and SCA applications were filed by the USAO or a different DOJ component or the status, as open or closed, of the investigations in connection with which those applications were filed.

After working out the kinks in the system, the USAO began identifying cases it was involved with. The culling still left the office with plenty of paperwork to dig through.

The Court provided the parties with the total number of matters responsive to the abovedescribed searches, with the significant caveats that such numbers could be under-inclusive by not capturing all SCA matters initiated by the USAO and other DOJ components, and may also reflect double-counting of § 2703(d) matters “since applications for § 2703(d) orders filed in more than one year in the same Miscellaneous matter will result in the same matter being counted in more than one year.” [...] Specifically, the number of § 2703(d) matters responsive to the searches and filed in the following years were: 2008 – 80; 2009 – 55; 2010 – 136; 2011 – 90; 2012 – 64; 2013 – 160; 2014 – 334; 2015 – 581; 2016 – 1,136. Section 2703(d) Notice. The number of SCA warrant matters responsive to the parties’ suggested searches and filed in the following years were: 2008 – 0; 2009 – 68; 2010 – 121; 2011 – 152; 2012 – 164; 2013 – 131; 2014 – 107; 2015 – 252; 2016 – 271. SCA Warrant Notice. Thus, the total approximate number, over the relevant nine year period, of § 2703(d) matters was 2,636, and SCA warrant materials was 1,266.

A sampling was taken from the 2012 set by the USAO, which scrubbed personal info and anything else it felt might harm ongoing investigations or national security in general. Then it attempted to make the sampling process the regular process and eliminate much of the transparency the petitioners were seeking.

The redacted PR/TT materials, stripped of identifying information about the individual or underlying criminal activity under investigation, revealed that the USAO’s PR/TT applications largely used the same language to describe (1) the service provider from whom the USAO sought to compel production, (2) the scope of legal authority sought, (3) the need for such authority, (4) the steps the USAO would take in exercising that authority, including technical assistance to be required of the service provider, and (5) a request for sealing. See generally id. The parties expressed disagreement as to the significance of the information that the sample PR/TT matter materials revealed. The USAO described the materials as “substantially similar and reveal[ing] largely boilerplate information,” and argued that any additional information that unsealing all of the remaining 2012 PR/TT matters might yield would have little value to the public relative to the significant “expendi[ture of] judicial and prosecutorial resources” that such broad unsealing would entail. 3 rd Jt. Rpt. ¶¶ 4, 7. Consequently, the USAO proposed instead to undertake the same sampling process used for the ten PR/TT matters in 2012 for a representative sample of PR/TT applications in other years.

Leopold (and fellow petitioners Reporters Committee for Freedom of the Press) disagreed with this assessment, using the same four documents the USAO produced.

The petitioners described the unsealed sample materials as “substantively of interest to the[m], and the press and public more generally,” given that the materials “reveal[ed], among a number of other things, the carriers involved in each matter, as well as the fact that in two of the four matters the government repeatedly sought extensions of the court’s authorization to use a [PR/TT] device.”

The USAO agreed to an extraction process proposed by the court to sniff out cases of public interest -- specifically, denied applications and/or substantive judicial opinions. Even with this drastically limiting what the USAO had to turn over to Leopold, the USAO insisted on applying the extraction method to only 10% of each year's total. This brought the litigation to a standstill. It's this standstill that's addressed in the DC court's opinion. It answers the question central to the petition's forward momentum: does the public have a First Amendment right to access documents filed under seal?

After weighing all the factors, and the long history of nondisclosure that covers warrants and pen register requests, the court grants Leopold a partial victory. While access to underlying documents won't be granted beyond the 10% sampling of past cases, the USAO will have to be more open going forward.

In sum, five of six Hubbard factors, including the “single most important” such factor, id. —need for public access to the documents at issue, fact of objection and objector’s identity, strength of any property and privacy interests asserted, possibility of prejudice, and purposes for which the documents were introduced—weigh in favor of prospective disclosure of PR/TT, § 2703(d), and SCA warrant matter docket information, while one factor—the extent of previous public access to the documents—has limited applicability. The Court thus concludes, considering the Hubbard factors together and as applied to the recently adopted administrative changes in the USAO and this Court’s Clerk’s Office, that the common law affords the petitioners a prospective right of access to the PR/TT, § 2703(d), and SCA warrant matter docket information.

This won't, however, open up access to everything filed previous to this opinion. According to the court's reasoning, extracting information from the thousands of cases already identified would be too burdensome on the government. (The USAO estimated at least 720 hours of work.) It acknowledges there are problems inherent to random sampling, but comes down on the side of the government.

Through these submissions, the petitioners make amply clear that, in their view, retrospective access to extracted information in PR/TT matters is an all-or-nothing situation: such access to less than one hundred percent of USAO-initiated PR/TT matters would have little to no value, and in fact might be worse than useless by yielding incomplete and misleading information. Yet, the administrative burden on the USAO and Clerk’s Office that would be triggered by compelling the USAO to fulfill the petitioners’ request for unsealing and disclosure of fifteen categories of extracted information in all PR/TT matters filed over nine years, would be unduly significant.

Accordingly, upon consideration, under Hubbard, of the USAO’s and Clerk’s Office’s particularized interest in avoiding undue administrative burden, the common law right of access does not entitle the petitioners to any additional retrospective relief.

The good news is the changes ordered were long-needed and will streamline future requests for information. Tracking cases filed under seal will be much easier for the USAO and sealed dockets will now provide enough info that members of the general public will be able to determine what sort of electronic data requests the government is making.

The Clerk’s Office has also adopted new CM/ECF case types to more readily identify the type of criminal investigative matter being initiated. Thus, rather than assigning general MC numbers to many different types of sealed criminal investigative matters, the Clerk’s Office will assign more specialized docket numbers reflective of the matter at hand. For example, “PR” will be used for PR/TT applications and “SC” for SCA applications, with special designations within the SC case type for SCA warrant and § 2703(d) materials.

Also added into the mix is periodic reporting on sealed cases by the DC district court.

[T]he Clerk’s Office, as set out in the MOU, plans to provide biannual docket reports about various types of sealed criminal investigative matters filed twelve through six months prior to each report’s publication. While some of these matters will remain open, the six-month delay in reporting somewhat reduces the risk to an ongoing criminal investigation. These reports will provide information about the total numbers of such matters and, as reflected in the standardized caption for each matter, the number and type of target accounts (e.g., landline telephone, cellular telephone, and/or email), the providers’ names, and the primary offense statutes under investigation. This information on the sealed applications subject to judicial review will provide additional transparency as to the processing of these sensitive matters, without jeopardizing either privacy or law enforcement interests. Indeed, this information is far more robust than that seemingly sought by the petitioners.

It doesn't tear the roof off sealed dockets but it does get the public's foot in the door. In the coming years, this should only improve. The court seems to recognize the government doesn't do its best work in darkness and that the public should be part of the oversight process. This isn't everything the petitioners were seeking, but it's more than the government was willing to grant. It's a small, but significant, victory and should lead to greater transparency in the future.

Filed Under: beryl howell, electronic surveillance, foia, jason leopold, sealed docket

Techdirt Podcast Episode 126: Talking Freedom Of Information With A 'FOIA Terrorist'

from the freedom-of-podcasting dept

We've made FOIA requests several times over the years, with varying results — but there are others out there who have dedicated their careers to understanding and using the FOIA process. One such person is Jason Leopold, a Buzzfeed reporter and FOIA litigator who was dubbed a "FOIA terrorist" by the government. He joins us this week on the podcast to discuss the ins and outs of Freedom Of Information.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Filed Under: foia, freedom of information, jason leopold, podcast

NSA Tries To Stonewall Jason Leopold's Requests Because He's A 'FOIA Terrorist' Who's Paid To 'Deluge Agencies' With Requests

from the barely-partially-true dept

Journalist Jason Leopold (currently in residence at Buzzfeed) has been given the nickname "FOIA terrorist" for his numerous requests and almost as numerous FOIA lawsuits. The government has taken notice of Leopold's activity. The Pentagon once offered Leopold a stack of documents in exchange for him leaving it alone. (He declined.) The FBI played keepaway with James Comey talking points, telling Leopold they were all exempt from disclosure. This obviously wasn't true, as these same talking points had been handed over to Mike Masnick by the agency months prior to the bogus denial it gave Leopold.

Now, it's the NSA using Leopold's "FOIA terrorist" nickname against him. (This is weird because federal employees gave Leopold the "terrorist" nickname. He didn't come up with it himself.) In Leopold's ongoing FOIA lawsuit against the agency, the NSA has asked for an "Open America" stay. What this would do is push Leopold's request back in line with the others the NSA has received. The agency argues that Leopold's decision to file a lawsuit over the agency's lack of a timely response shouldn't give his request precedence over FOIA requests that arrived before his did.

The agency points out its FOIA workload has increased significantly since "a former NSA contractor began a series of unprecedented, unauthorized, and unlawful disclosures" in 2013. The agency still processes thousands of FOIA requests a year, but it's unable to keep up with the increase in FOIA traffic.

What the NSA wants is more time. Three of Leopold's requests -- two of them dating back to 2014 -- are at the center of this lawsuit. The NSA wants to prevent Leopold's lawsuit from letting him jump the queue. From the filing [PDF]:

Given NSA’s limited number of FOIA personnel, if the Court orders defendant to process plaintiff’s requests at a rate greater than 400 pages per month, the individuals who filed the 1,603 pending requests in NSA’s current backlog, many of which were filed well before plaintiff’s, will be disadvantaged.

It also wants to process no more than 400 pages per month for him, despite there being more than 20,000 responsive pages.

In defense of its attempt to keep Leopold from litigating his way to the front of the line (and for delaying its already-delayed responses even further), the NSA attempts to use Leopold's press bio against him.

[P]laintiff Jason Leopold is “a self-styled ‘FOIA terrorist’” who, according to a recent press release by his new employer, BuzzFeed.com, makes his living “by deluging the federal government with Freedom of Information Act requests.” He proudly claims to have “brought more FOIA lawsuits by himself than any other news organization except the New York Times.”

Again, Leopold may be a "self-styled" FOIA enthusiast, but the government called him a "terrorist" first. And, again, the number of lawsuits means nothing. If the government replied in a more timely fashion, withheld fewer documents, and generally made a better effort at being transparent, it's unlikely Leopold would be chasing every FOIA request with a FOIA lawsuit.

While I agree with the NSA FOIA requesters shouldn't be able to use litigation to move their requests ahead of others (who may not have the financial means to engage in litigation), the fact is without litigation, most government responses would be delayed indefinitely. Agencies are statutorily required to respond within a certain time period. After that time has elapsed, the only option in most cases is to bring a lawsuit. Periodically reminding the agency about your outstanding request has almost zero motivational effect.

Handing out litigation stays doesn't mean requesters who haven't filed a lawsuit will be receiving faster responses. All it means is litigating requesters will be receiving their responses more slowly. The NSA's inference that Leopold's requests are somehow less legit simply because there are so many of them is bogus. I'm sure Leopold would rather have faster request fulfillment than the double-duty of tracking dozens of open requests and multiple concurrent FOIA lawsuits.

If the problem is staffing, there are solutions available -- but agencies have to want to be more responsive, not just shrug their way through FOIA lawsuit filings complaining about how impossible it is to keep up. They have direct lines to the legislators that pass their budgets. If they really wanted to do more, FOIA-wise, they'd have asked for more help already.

Filed Under: doj, foia, foia terrorist, jason leopold, nsa

Why Did The FBI Say It Couldn't Release Documents To 'FOIA Terrorist' Jason Leopold That It Released To Me Months Earlier?

from the hmmm dept

What's up, FBI? Back in early 2015, when the FBI and (specifically) Director James Comey ramped up their silly "going dark" moral panic about how strong encryption was making us less safe, I sent a Freedom of Information Act (FOIA) request to the FBI for all of the FBI's internal talking points about "going dark" or other views on encryption. My main reason for this was really to see if I might uncover some of the reasoning for why the FBI had quietly deleted a page on its website that encouraged people to encrypt their phones. It took until May of last year, but the FBI finally delivered me a stack of talking points, mostly focused on talking point lists and speeches given by Comey. I never wrote about it because the talking points alone weren't even that interesting.

In fact, I'd almost totally forgotten about that entire request. But then, a few weeks ago, right here on this site, Tim Cushing wrote about the latest escapades of Jason Leopold, the reporter whose use of FOIA requests is so prolific that he's been dubbed a "FOIA terrorist" by the DOJ. It turns out that Leopold had made a similar request to the FBI... and was told that while they had found 487 responsive records, they were giving him a grand total of 0 of them, because they were all subject to restrictions on release. In that article, Cushing, rightly explains why this is ridiculous. The whole point of "talking points" is to share them with the public. There is simply no FOIA exemption that allows for blocking them.

But this was even more bizarre to me for the simple fact that the FBI had already sent me many of those documents. I didn't add up all the pages sent to me, but I can tell it's probably closer to about 100 pages than 487, so clearly the FBI is likely lying to me as well in terms of how many "responsive" documents there really were, but I'm confused as to why the FBI couldn't release these kinds of documents to Leopold.

I mean, just imagine the chaos that would have occurred if the FBI had obeyed the law and given Leopold such talking points as:

Thank goodness that didn't happen. Either way, I'm embedding all the files the FBI released to me below, just in case Leopold finds them more useful than I did -- such as using them as potentially useful evidence in the lawsuit he should file against the FBI for not releasing these same documents to him.

Filed Under: encryption, fbi, foia, going dark, james comey, jason leopold, talking points

FBI Says It Has 487 Pages Of James Comey Talking Points, Refuses To Release Any Of Them

from the 'but-here's-a-CD-full-of-nothing-for-you' dept

Well, we can already see what government agency will be the next recipient of a Jason Leopold FOIA lawsuit.

Leopold had requested FBI Director James Comey's talking points for a variety of subjects, including "going dark," the terrorist attacks in Paris, the "Ferguson Effect," and encryption. The FBI responded with two things, both of which add up to nothing.

The letter Leopold received noted that the FBI had found 487 pages responsive to his request. Of those, the agency will be releasing a grand total of zero pages. All 487 have been withheld under FOIA exemptions b(5) through b(7)(E).

Despite not releasing a single page, the FBI still utilized some taxpayer pocket change to mail Leopold a CD containing nothing more than its rejection. Leopold notes he'll be using it as a coaster.

The exemptions cited are bogus. "Talking points" aren't deliberative documents, interagency memos, or documents containing sensitive personal information [b(5), b(6)]. Neither are they documents that might expose law enforcement sources or investigative techniques [b7(D) and 7(E)].

They are exactly what the name says they are: points to be used when discussing these issues in Congressional hearings or during press conferences. They are indicative of the public stances the FBI takes on certain issues. There's nothing secret about them, or at least there shouldn't be.

But the FBI is treating Comey's talking points like they're confidential documents that could result in the exposure of its sources and techniques. If Comey's talking points do actually include this information, that's pretty irresponsible. These are used to make public statements and they certainly shouldn't include sensitive information not meant for the public domain.

And there's 487 pages of them, which means Comey has had plenty to talk about. The eventual release of these documents post-lawsuit should be entertaining and informative. Considering Comey has taken public stances privately opposed by other FBI officials and has made of habit of bypassing agency norms when delivering statements, it would be interesting to see if his past statements have periodically veered away from the agency's prepared talking points.

This response is a typical one for the FBI, which frequently returns an upraised middle finger to the requester in lieu of the documents requested. It's just how it opens FOIA negotiations. From there, requesters are expected to begin the appeals process or, in the case of FOIA enthusiast Jason Leopold, file yet another FOIA lawsuit that's 90% boilerplate and 10% "this is SPECIFICALLY how [US Government Agency X] has dicked me around this time."

Filed Under: fbi, foia, going dark, james comey, jason leopold, talking points

FOIA Requesters Sue Government Agencies Over Non-Responses To Requests For Election-Related Documents

from the and-this-is-how-the-public-alters-the-FOIA-response-timetable dept

Two of the nation's foremost FOIA enthusiasts -- Jason Leopold and Ryan Shapiro -- are suing a variety of federal agencies for their failure to respond to requests for documents related to the 2016 election.

The first lawsuit, filed a couple of weeks ago, concerns records pertaining to FBI director James Comey's actions in the last few weeks before Election Day. Most of the documents sought relate to the FBI's on-again, off-again investigation into Hillary Clinton's private email server. The pair also seeks a variety of communications between Comey and the rest of the FBI, as well as any internal FBI discussions about the number of leaks that accompanied Comey's last-minute dive back into the email investigation.

Shapiro and Leopold are also seeking unredacted copies of Clinton email investigation documents previously released by the FBI. They also would like to see what the FBI has on hand that references a variety of right-wing news sites, including Breitbart News and alternativeright.com.

The first lawsuit [PDF] alleges the FBI has violated FOIA law by not responding to their expedited request in a timely fashion. At the date of the lawsuit's filing, the FBI had yet to inform the requesters whether or not it would grant the request expedited status.

The second lawsuit [PDF], filed earlier this week, makes the same allegations. Expedited processing was requested, but the agencies targeted failed to rule on the processing request in a timely fashion. The list of defendants in this lawsuit is a bit longer. Shapiro and Leopold have requested election-related documents from the Office of the Director of National Intelligence, CIA, DOJ, and DHS. None of these agencies have issued a ruling on expedited processing.

The documents sought here are also a bit different. The two requesters are asking for documents held by these agencies that pertain to the Russian interference -- hacking or otherwise -- in the electoral process. There are some interesting keywords listed, including Guccifer, Elite VPN, two IP addresses, and anything related to the alleged compromise of Clinton campaign head John Podesta's devices/email accounts.

Obviously, both of the requests being sued over are time-sensitive and of considerable public interest. The longer these agencies delay their responses, the less "interesting" the information is to the public. Pulling the trigger on lawsuits two weeks after FOIA requests are filed is the new way of playing ball with federal agencies. Left to their own timetables, the agencies would likely release these documents sometime between "the distant future" and "never." This prompts the parties listed to at least adhere to the letter of the law and make a determination on expedited processing. And, given the information sought, there's no way these will be the only FOIA lawsuits related to the requested documents.

Filed Under: cia, dhs, doj, election, fbi, foia, hillary clinton, investigation, james comey, jason leopold, lawsuit, odni, russia, ryan shapiro

Judge Orders Release Of Information On Cases Involving Electronic Surveillance

from the clubbing-seals dept

In a victory that's only sure to add more entities to the list of government agencies wishing Jason Leopold was dead, a federal judge has decided to roll back some of the opacity surrounding electronic surveillance.

US District Court Judge Beryl Howell said at a hearing Friday morning that absent an objection by government attorneys, the court would post to its website next week a list of all case numbers from 2012 in which federal prosecutors in Washington, DC applied for an order to install a pen register or a trap and trace device.

This is a response to a petition by Leopold and Vice to unseal court dockets containing electronic surveillance affidavits, orders, etc. The step forward towards more transparency is welcome news, but it appears the wheels of justice aren't grinding any faster. This petition was submitted to the court in 2013.

Default mode for nearly any case involving law enforcement surveillance is pitch-black darkness. The government asks for cases to be sealed with alarming (and annoying) frequency, often claiming the potential exposure of law enforcement means and methods would be detrimental to the business of catching criminals. This makes no sense considering the technology used is decades old and the methodology has been common knowledge for nearly the same length of time.

And yet, these requests are granted more often than not. Howell's district (Washington DC) presides over an extremely high percentage of sealed cases.

That traditional aversion to court secrecy has been overcome in the last few decades. To take but one example, the case name In re Sealed Case first appeared in 1981; it is now the most common case name on the D.C. Circuit Court of Appeals docket.

That may be changing. In addition to cutting loose a list of 2012 case numbers, Howell is looking to prevent the government from relying on the DC district to rubberstamp its secrecy requests.

At Friday's hearing, Howell approved a plan that would lay the groundwork for the systematic review and unsealing of a large volume of federal court documents related to the government's use of electronic surveillance.

This is a process that should have been put into place years ago. And, if implemented, should be spread to all federal court districts. The government asks for dockets to be sealed because it doesn't want to tip off those who are being surveilled. Fair enough, but that doesn't explain why dockets remained sealed for months or years after investigations have been closed.

Howell is asking for a response from government officials, so there's a chance it will still be months or years before the list of 2012 sealed cases is released. But if the review process changes (i.e., there actually is one), then indefinite docket sealing will no longer be the presumption.

Filed Under: beryl howell, electronic surveillance, foia, jason leopold, surveillance, transparency

Judge Tells DOJ Lawyers That A Search For FOIA Docs Requires More Than Chatting With A Couple Of Employees

from the SEARCH-HARDER dept

Jason Leopold is back in court (is he ever NOT there?) battling the NSA and the DOJ's Office of Legal Counsel (OLC) over the release of documents related to the NSA and FBI's surveillance of federal and state judges. The two parties had already been told to do more looking around for responsive records by Judge Tanya Chutkan, who rejected their original request for summary judgment last July.

The two agencies went back and performed another search. And still came up empty-handed.

Let me rephrase that: the two agencies went back and performed another "search." Here's what that "search" actually entailed, as described in the opinion [PDF].

The search that OLC ultimately conducted pursuant to the court’s July 2015 Memorandum Opinion and Order proceeded as follows:

[A]n OLC attorney asked an OLC Deputy Assistant Attorney General and an OLC Senior Counsel, both of whom are senior attorneys with long tenures in OLC (the Deputy Assistant Attorney General joined the Office in 1989; the Special Counsel joined the Office in 1998, departed for nine years in 2001, and rejoined the Office in 2010) and have close familiarity with OLC’s work on national security and surveillance matters, . . . whether they were aware of any classified or unclassified OLC projects concerning the “propriety of surveilling federal or state judges,” regardless of whether the project resulted in final legal advice. (Id. ¶¶ 6, 9).

“This inquiry yielded no responsive records.” (Id. ¶ 9).

According to the OLC, asking a couple of people if they've heard anything about a surveillance program is the same thing as actually searching its own files using keywords and phrases relevant to the subject matter.

In addition, the OLC claimed that actually searching for these documents would bring its slowly-moving FOIA machinery to a near halt.

Colborn avers that searching OLC’s paper files, the email files of departed OLC attorneys and the hard drives of departed users “likely would take several years and the diversion of resources from other FOIA requests,” which “would result in a dramatic increase in [OLC’s] FOIA processing backlog.”

Judge Chutkan didn't find either of these excuses persuasive. As for the OLC's claim that asking a few in-house lawyers about a surveillance program qualifies as a search for responsive documents, the judge had this to say:

The court agrees with Plaintiff, and finds that the senior attorneys’ responses to this inquiry do not provide sufficient basis to reasonably conclude either that OLC is unlikely to possess responsive records or that responsive records are unlikely to be found by a more in-depth search. Moreover, the court finds that asking all current OLC attorneys if they had, or were aware of, any draft legal memoranda or opinions relating to the propriety of surveilling federal or state judges – as was done here after Plaintiff filed his opposition brief – was also insufficient.

Judge Chutkan points out that there's way too much turnover in staff at the OLC to consider asking all current counsel whether or not they've heard of a program to be an adequate substitute for an actual records search. The latter method wouldn't be nearly so dependent on individuals' memory, or whether those who might be familiar with the surveillance program were still working for the agency.

As for its complaint about "diverted resources" and its FOIA processing backlog, the judge similarly has no sympathy.

The court finds that Defendants have not established that searching the email files of departed OLC attorneys would be unduly burdensome. While Colborn avers that it “likely would take several years and the diversion of resources from other FOIA requests” to search for responsive documents among OLC’s paper files, hard drives and emails, he does not break out the time and resources that would be required to search only the emails of departed OLC attorneys. (Id.). Given that these emails and their attachments can be searched using an eDiscovery tool without needing to open each email and its attachments individually, and in the absence of any representations from Colborn or any other declarant regarding the burden associated with running such searches separate and apart from searching OLC’s paper files and hard drives, Defendants have not demonstrated that doing so would constitute an undue burden.

So, for a second time, Judge Chutkan is forced to tell the OLC how to do its job.

Accordingly, the court hereby ORDERS OLC to use the Clearwell eDiscovery tool referenced in the Fourth Colborn Declaration to search the email files of departed OLC attorneys, as well as any attachments to those emails, for any draft legal memoranda or opinions relating to the propriety of surveilling federal or state judges.

Everyone seems to know what tools are available and how to use them… except the agency "responding" to the FOIA request. A search will finally be performed -- after two motions to dismiss, several misspent tax dollars, and an FOIA requester forced to use the court system to get an agency to do its job correctly.

Filed Under: doj, foia, jason leopold, searches

NSA Emails Provide Little Insight Into Snowden's Pre-Leak Concerns, But Speak Volumes About Agency's Internal Controls

from the a-smoking,-tangentially-related-gun dept

Jason Leopold has secured another comprehensive set of Snowden-related documents from the NSA, dealing with the agency's search for evidence backing up his claim that he tried to take his complaints to intelligence community officials before heading to Hong Kong with a drive full of secret documents.

The long, detailed post -- written with the help of Marcy Wheeler and Ky Henderson -- covers the 800+ pages of internal emails released to Vice in response to a FOIA request. The headline suggests there's a smoking gun, but a few thousand words later, the conclusion seems to be, "There's possibly a smoking gun... and the NSA, due to malice or just incompetence, is going to be of no help in locating it."

What is undoubtedly true is that there was more to Snowden's concerns than the single email released to shore up the NSA's side of the story. There is evidence Snowden contacted other officials about his concerns, but the agency decided to present the single email as though that were the extent of Snowden's complaints.

This posed problems later as Snowden repeated his assertion to other news outlets, including NBC and Vanity Fair. These resulted in further search efforts from the agency which had already claimed to have uncovered everything that could be considered evidence of Snowden's "proper channels" claims.

The following morning, [NSA General Counsel Rajesh] De sent someone at NSA an email with the subject line "NBC/email."

"I need very senior confirmation [Kemp/Moultrie) [a reference to the NSA's director of security and Ron Moultrie, then the NSA's deputy SIGINT director] that all possible steps have been taken to ensure there are no other emails from [Snowden] to OGC," De wrote.

Those assurances apparently could not be provided — even though the agency had publicly been saying over the course of a year that no other relevant communications from Snowden existed.

What's been released by the NSA seems at odds with Snowden's claims that he made several efforts to bring his concerns to the proper authorities. Other communications were uncovered, but none of those dealt with privacy concerns or other whistleblowing attempts.

That certainly doesn't mean the NSA's first assertion that Snowden didn't raise concerns internally is correct either. The released documents show that its ability to search its own files is far less robust than the systems it uses to dig through the rest of the world's communications. For one, the agency appears to have been unable to retrieve emails related to Snowden's work with Booz Allen. Another heavily-redacted email says the NSA was able to gather and read through everything from Snowden's NSAnet and NSAgov accounts, but appends the phrase "that we've been able to obtain," suggesting the results of its search aren't as comprehensive as it would have the public believe.

What's far more disconcerting is the fact that the NSA -- the king of metadata -- isn't able to keep its own email metadata in working order.

What's remarkable about this FOIA release, however, is that the NSA has admitted that it altered emails related to its discussions about Snowden. In a letter disclosed to VICE News Friday morning, Justice Department attorney Brigham Bowen said, "Due to a technical flaw in an operating system, some timestamps in email headers were unavoidably altered. Another artifact from this technical flaw is that the organizational designators for records from that system have been unavoidably altered to show the current organizations for the individuals in the To/From/CC lines of the header for the overall email, instead of the organizational designators correct at the time the email was sent."

There's no telling where this falls on the stupid/malicious scale, but either way, it helps the NSA muddy the timeline waters and obscure the agencies/personnel involved in these email discussions. That admission is downright frightening considering what the agency does with the metadata it harvests.

Remember, this is the agency that “kills people based on metadata,” per its former Director, Michael Hayden.

But “due to a technical flaw in an operational system,” it could not preserve the integrity of either the time or the aliases on emails obtained under FOIA.

That's the scary part. Here's the hypocritical part, as pointed out by attorney and CUNY law professor Douglas Cox, in response to Marcy Wheeler's post on the NSA's metadata problem:

[Y]our point is right on, even in more mundane contexts not involving drone strikes it is remarkable the disconnect between standards agencies impose and those they practice. When you are producing docs to a govt agency in response to doc requests, eg, you often have to abide by exacting standards in format including careful capture of metadata, but with FOIA you get things like this.

Among the things this careless approach to internal metadata accomplished was obscuring the genesis of one official's recounting of a face-to-face meeting with Snowden over surveillance concerns.

As noted, the compliance woman's story had to be corrected to match the dates up to when Snowden would have been at Fort Meade. "We received a call from D4 [Office of the Director of Compliance] questioning the dates (11 or 12 Jun) that [redacted] annotated during the discussions on" the Section 702 course, one of the other people in Oversight and Compliance wrote on April 10. She "has modified her dates to reflect 5-12 April 2013."

NSA did not provide a version of the draft of the email with the incorrect date. When the chief of Oversight and Compliance provided a description of all the department's interactions with Snowden to the NSA chief of staff, Elizabeth Brooks, in June 2014, there was no mention of any other paper trail of the exchange, though earlier that same day the deputy chief had stated, generally, that that information had been provided to Ensor on June 10, 2013.

One thing that is clear, however, is that the apology laying all these details out, written after several days of fact checking at the NSA and document review in June 2014, leaves out at least one key detail — that the OGC email and the face-to-face communication could have happened the same day, making it far more likely they should be treated as parts of the same exchange. More significantly, the apology claims that "in response to the June 2013 Agency All... she provided in writing her account of these engagements." If the timestamps on documents provided to VICE News are correct (something that the NSA has admitted is a problem with this FOIA response), she actually provided her side of at least the OGC contact even before the Agency All email. But there is no record she provided her written account, to either of these exchanges, until a year after the event, a detail — if true — that Rogers should have known.

Beyond that, there's the NSA's ongoing obsession with controlling this narrative. The agency refused to answer questions from Vice pertaining to these documents but it did send it an email informing it that it had already made the FOIA documents available at the ODNI's website, presumably in an attempt to undercut Leopold/Vice's "exclusive."

The jury is still out on Snowden's claims he took his complaints to the proper officials before deciding to leak the documents he obtained. The NSA's assertions of it just being one email would be far more believable if it could provide any evidence that it can handle its own internal email systems with any sort of competence. But as far as this release goes, there's nothing in it definitively pointing to multiple attempts by Snowden to raise concerns. But it's also a stack of documents whose release was overseen by the same agency he exposed and one that still needs every "victory" it can earn… or take.

Filed Under: ed snowden, emails, foia, internal controls, jason leopold, nsa, whistleblowing