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In Final Act, Outgoing Trump Acting DNI Made John Ratcliffe’s Job a Litigation Hellscape


New Director of National Intelligence John Ratcliffe

In one of his final official acts, outgoing acting Director of National Intelligence (DNI) Richard Grenell appears to have set the stage for the Office of the Director of National Intelligence (ODNI) and his successor, John Ratcliffe, to deal with an onslaught of litigation pertaining to the declassification of administration officials who submit requests for unmasking.

Unmasking is an intelligence community term which refers to the common practice of revealing the identity of someone on a monitored communication, usually to provide intelligence officials with more context of the information.

Earlier this month, Grenell chose to declassify the names of Obama administration officials who had made requests for intelligence reports on communications between foreign officials in which former National Security Advisor Michael Flynn was mentioned and/or communications in which Flynn spoke to foreign officials.

The declassification was widely seen as politically motivated to further a narrative that Flynn was targeted by the Obama administration through selective unmasking. Soon thereafter, however, it was revealed that Flynn’s name was never masked on an FBI document relating to his communications with a Russian diplomat.

Ranking Member of the Senate Intelligence Committee Mark Warner (D-Va.) asked Grenell last week for any underlying intelligence reports concerning conversations between Flynn and then-Russian Ambassador Sergey Kislyak, as well as the reason he declassified the list of Obama officials, “given the potential compromise to sources and methods.”

In a notable response to Warner, Grenell said that “the declassification of the identities of unmaskers” was “a declassification that posed no conceivable risks to sources or methods.”

National security attorney Bradley P. Moss commented that Grenell’s response was “hysterical.” He noted that it would be cited “in a LOT of FOIA [Freedom of Information Act] cases in the near future.”

“I completely embrace this official statement from the Office of the Director of National Intelligence, and I will absolutely be using it routinely in future FOIA litigation to rebut agency claims that disclosing that very same kind of information would endanger national security,” Moss said in an email to Law&Crime.

Moss also pointed Law&Crime to Schaerr v. United States DOJ, a U.S. District court opinion issued by Judge Amy Berman Jackson earlier this year. Multiple federal agencies had responded to a FOIA request concerning the unmasking of U.S. citizens by issuing “Glomar responses,” wherein agencies refuse to even confirm or deny the existence of responsive records.

Each of the agencies in Schaerr, which included ODNI, NSD, FBI, NSA, and CIA, asserted that “disclosing the existence of records about the ‘unmasking’ or ‘upstreaming’ of particular individuals pertains to intelligence activities and intelligence sources and methods […] and that disclosure of whether or not these documents exist reasonably could be expected to result in damage to national security.”

Grenell’s latest response to Warner appears to directly contradict the ODNI’s reasoning in Schaerr, a point that won’t be lost on lawyers preparing future FOIA request lawsuits.

National security attorney Mark Zaid, who recently represented the Ukraine whistleblower, reiterated his colleague’s enthusiasm for using Grenell’s response in FOIA requests, saying he planned to sue the government for “a list of names of individuals who sought unmasking during [the Trump] administration.”

“The politicization of intelligence, whether committed by Democrats or Republicans, harms the American public and our national security,” Zaid wrote in an email to Law&Crime. “It also has favorable consequences that will allow us to open additional windows into what our government has been up to, a key premise of FOIA. That is why we will be suing to force disclosure of the names of those government officials who have sought the unmasking of American identities since January 2016. This will enable us to determine whether or not the unmasking process has been abused in either the Obama or Trump Administrations.”

Zaid and Moss are executive director and deputy executive director of The James Madison project, a Washington, D.C. based non-profit organization dedicated to reducing government secrecy. Moss is also a partner at Zaid’s law firm.

As for John Ratcliffe, he was sworn in on Tuesday to his new job.

[image via Alex Wong/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.