2020 Victories: ACLJ Defeats Deep State’s Refusal To Admit or Deny Existence of Unmasking Records in Important Federal Court Ruling on Our FOIA

This is the first installment of our year-end victories series looking back at some of the numerous victories by the ACLJ in 2020.

In the ACLJ’s pair of unmasking lawsuits under the Freedom of Information Act (FOIA), a federal district court issued a critical opinion, giving us a significant win this year.

According to the court, the State Department may no longer refuse to admit or deny the existence of records of Obama Administration senior official Samantha Power’s unmasking activity involving Lt. Gen. Michael Flynn, a list of which the Director of National Intelligence (DNI) declassified in May.

While many outlets reported that Power had been involved in an inordinately high number of unmasking requests at the end of the Obama Administration, some on the Left tried to downplay these actions, saying they were done by low level staffers and not by Power herself.

The federal district court’s decision in our FOIA lawsuit on the matter made it clear that principals are responsible for the unmasking actions of their agents – and those unmasking requests carried out by subordinates, as agents, are attributable to the principals themselves. In other words, unmasking requests made under Power’s name could be properly attributed to Power herself.

That ruling should also make efforts to distance former Vice President Joe Biden and other senior Obama officials from the political spying – blaming it on the staffers – considerably more difficult.

In 2017, the ACLJ submitted FOIA requests to the National Security Agency and the State Department in an effort to get to the root of this disturbing story. We ultimately had to take those agencies to court for enforcement of FOIA; and while the State Department produced some records – including records that exposed Power’s shocking political bias against President Trump while she was engaged in unmasking requests – the agencies had responded to other parts of our FOIA requests with a “Glomar response,” refusing to admit or deny the very existence of records responsive to our request.

Fortunately, then-Acting Director of National Intelligence Richard Grenell declassified an NSA Memorandum listing various principals who had been involved in unmasking requests on Lt. Gen. Michael Flynn, which we raised as evidence of “official acknowledgment” that the records exist – legally waiving the agency’s ability to make a Glomar response.

We argued our motion in a telephonic hearing before the court, due to the COVID-19 pandemic. The court held:

In sum, because the declassified memorandum establishes the existence of records about unmasking requests from Power, it waives State’s Glomar response as to Part 2 of ACLJ’s request.

State no longer can assert a Glomar response—for Part 2—for records about the unmasking requests referenced in the declassified memorandum. Here, that means requests made on behalf of Power to unmask Flynn, on the six dates specified in the memorandum. [The] State [Department] now must either turn over these records or else establish that their contents are exempt from disclosure.

It is also significant that a federal court concluded that unmasking requests by Power’s subordinates – which was acknowledged in the NSA memo declassified by Grenell – were “from” and attributable to Power herself:

So it comes down to this: are unmasking requests made on behalf of Power equivalent to unmasking requests from Power? . . . [T]here is no suggestion here that in making the requests, the “authorized individuals” were acting beyond the scope of their agency relationship with Power. So here, the requests from Power’s subordinates were requests from her.

In court, the agencies’ attempt to distance the principal, in this case Power, from the unmasking activity of the subordinates, didn’t fly.

This court’s opinion in our FOIA lawsuit explains, “This result should be commonsense for anyone who works in a hierarchical organization, like the government. A communication ‘on behalf of the principal’ is equivalent to a communication ‘from the principal.’”

For that reason and others, the court concluded that the NSA memo was an “official acknowledgment” that records about the unmasking activities attributed to Power existed and thus, “State no longer can assert a Glomar response . . . for records about the unmasking requests referenced in the declassified memorandum.”

The net result:  “State now must either turn over these records or else establish that their contents are exempt from disclosure.”

Now, that same principle and conclusion can be applied to Joe Biden, or anyone else on the list, including President Obama’s Chief of Staff. It refutes the notion that Biden and other senior Obama Administration officials named in the NSA Memorandum were not involved (and therefore not responsible) for political spying against President Trump’s campaign and transition team.

This was a narrow, yet significant win. But our work to expose the Deep State is far from over. We continue to fight to hold all those involved in dangerous unmasking attempts accountable.

To help the ACLJ continue to have the resources we need to make these victories possible, please consider making a Tax-Deductible donation to the ACLJ through our year-end Matching Challenge. Your gift will be DOUBLED dollar-for-dollar through the end of the year.

You can read more in the ACLJ’s 2020 Victories Series here.

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