A government accountability group filed a Freedom of Information Act lawsuit in federal court on Saturday seeking the identities of dozens of officials who made unmasking requests during the final year of the Obama administration and throughout Trump’s presidency.
The James Madison Project, a Washington, D.C.-based firm specializing in FOIA cases and founded by Ukraine whistleblower lawyer Mark Zaid, filed the lawsuit in conjunction with Politico’s senior legal affairs contributor Josh Gerstein in D.C.’s district court. The lawsuit named the CIA, the Justice Department (with a focus on the FBI), the Office of the Director of National Intelligence, the Department of Defense (with a focus on the National Security Agency), and the State and Treasury departments.
“The ultimate objective of this lawsuit is to provide the American public with greater transparency and understanding of exactly how often these unmasking requests are actually made and by whom, particularly in the context of senior U.S. Government officials,” the court filing said.
In May, then-acting Director of National Intelligence Richard Grenell declassified an NSA document containing a list of dozens of Obama administration officials, including former Vice President Joe Biden, who were authorized recipients of information in response to “unmasking” requests during the presidential transition period that revealed former Trump national security adviser Michael Flynn’s identity in surveillance intercepts. Flynn’s name was reportedly not masked in the FBI reports on his conversations with Russian Ambassador to the U.S. Sergey Kislyak during the transition period.
The lawsuit seeks “copies of records, including cross references, that identify or list the names of authorized officials who submitted a request to unmask the identity of a U.S. person who was generically referenced in a foreign intelligence report from January 1, 2016, up until the date the agency begins conducting actual searches for responsive records.” The complaint lists 11 Obama administration officials and 33 Trump administration officials.
Among the Obama officials are Biden, former White House chief of staff Denis McDonough, former national security adviser Susan Rice, former U.S. Ambassador to the United Nations Samantha Power, former Director of National Intelligence James Clapper, former CIA Director John Brennan. From the Trump administration are Flynn himself, Vice President Mike Pence, former U.S. Ambassador to the U.N. Nikki Haley, then-CIA director and now Secretary of State Mike Pompeo, FBI Director Christopher Wray, and senior advisers to the president Ivanka Trump and Jared Kushner. Fired FBI Director James Comey is also listed.
Bradley Moss, a national security lawyer who works for Zaid’s firm and filed the unmasking lawsuit, told the Washington Examiner that “this lawsuit is designed to provide a more complete picture of the practice of unmasking over the last two administrations.”
“We appreciate the official statements of then-Director Grenell saying that declassifying and identifying the identities of officials who submitted unmasking requests posed no risk of compromise of sources or methods, especially given how his own agency had said in sworn affidavits the exact opposite mere months earlier in FOIA litigation,” Moss said. “We look forward to Trump administration support in the release of the information we are seeking in this litigation based upon that past official viewpoint.”
The Justice Department and the ODNI were the two agencies involved in the most recent high-profile declassifications. DOJ did not immediately respond to the Washington Examiner‘s request for comment, and an ODNI official said they don’t comment on pending litigation.
Grenell told Senate Intelligence Committee ranking member Sen. Mark Warner that the declassification of the identities of officials making unmasking requests “posed no conceivable risks to sources or methods” after the Virginia Democrat accused him of “selective declassification for political purposes.”
“My declassification determination was made in the interests of full transparency and public accountability given serious unanswered questions about the potential misuse of intelligence for partisan purposes following the 2016 election,” Grenell wrote to the Virginia Democrat in late May. “The protection of intelligence sources and methods is always at the fore of any declassification decision which I might make. As you well know, the decision to declassify the names of individuals who sought to unmask the identity of Gen. Flynn poses absolutely no risk of compromises of either sources or methods.”
Newly confirmed Director of National Intelligence John Ratcliffe declassified the Flynn-Kislyak conversation transcripts at the end of May.
The new FOIA lawsuit indicated that the release of the unmasking list “comes amid claims by President Trump and Members of Congress that the ‘unmasking’ of Michael Flynn’s identity was improper or illegitimate.”
“This was all Obama. This was all Biden. These people were corrupt. The whole thing was corrupt. And we caught them. We caught them,” Trump said on Sunday Morning Futures on Fox News after the unmasking list was released, adding that Biden “was one of the unmaskers — meaning he knew everything about it.”
The FOIA complaint also noted that “the debate surrounding the permissibility of and manner in which unmasking is performed is now the subject of multiple Congressional inquiries.”
Republican Sens. Ron Johnson of Wisconsin and Chuck Grassley of Iowa told Grenell in late May they were expanding the scope of their “unmasking” investigation requests to include information as early as January 2016. Republican Sen. Lindsey Graham of South Carolina sent a letter to Grenell asking him to declassify any unmasking requests made between Trump’s November 2016 victory and his January 2017 inauguration that revealed the identity of anyone in Trump’s orbit. And last week, Johnson gained the power to issue dozens of subpoenas related to unmasking and other issues.
Attorney General William Barr has selected John Bash, the U.S. attorney for the Western District of Texas, to carry out a review of Obama-era unmasking requests to assist the broader investigation of the Trump-Russia investigators conducted by U.S. Attorney John Durham.
The lawsuit highlighted ODNI’s transparency report released in April, which stated that the number of unmaskings during a September through October time frame was 9,217 in 2016, 9,529 in 2017, 16,721 in 2018, and 10,012 in 2019.
“Given the recent media reporting and hyperbolic political commentary suggesting something unusual or inappropriate regarding the number of unmasking requests made in the final weeks of the Obama Administration with respect to General Flynn … and the upcoming election in November 2020, there is significant public interest in providing American voters with more complete and comprehensive explanations about the nature of this previously little-known process,” the lawsuit read.
