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Judicial Watch • JW v ODNI Clinton email damage assessment complaint 00508

JW v ODNI Clinton email damage assessment complaint 00508

JW v ODNI Clinton email damage assessment complaint 00508

Page 1: JW v ODNI Clinton email damage assessment complaint 00508

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Date Created:March 21, 2017

Date Uploaded to the Library:March 21, 2017

Tags:Practices, 00508, damage, ODNI, Intelligence, Community, SECRET, defendants, email, complaint, Secretary, National, clinton, filed, Assessment, State Department, plaintiff, FBI, document, FOIA, department, Washington


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Case 1:17-cv-00508 Document Filed 03/21/17 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
425 Third Street, S.W., Suite 800
Washington, 20024,
Plaintiff,
OFFICE THE DIRECTOR
NATIONAL INTELLIGENCE,
Washington, 20511,
and
MICHAEL DEMPSEY, his official capacity Acting
Director National Intelligence,
Washington, 20511,
and
WILLIAM EVANINA, his official capacity National
Counterintelligence Executive,
Washington, 20511,
and
U.S. DEPARTMENT STATE,
2201 Street, N.W.
Washington, 20520,
and
REX TILLERSON, his official capacity
U.S. Secretary State,
2201 Street, N.W.
Washington, 20520,
Defendants.
Civil Action No.
Case 1:17-cv-00508 Document Filed 03/21/17 Page
COMPLAINT
This Administrative Procedure Act APA lawsuit challenges Defendants refusal
conduct assessment and prepare report whether Hillary Rodham Clinton email practices U.S. Secretary State may have damaged U.S. national security, required Intelligence
Community Directive 732. grounds for its lawsuit, Plaintiff alleges follows:
JURISDICTION AND VENUE
The Court has jurisdiction over this action pursuant U.S.C. 1331.
Venue proper this district pursuant U.S.C. 1391(e).
II.
PARTIES
Plaintiff Judicial Watch, Inc. not-for-profit, educational organization
incorporated under the laws the District Columbia and headquartered 425 Third Street
S.W., Suite 800, Washington, 20024.
Defendant Office the Director National Intelligence agency the U.S.
Government and headquartered Washington, 20511.
Defendant Michael Dempsey Acting Director National Intelligence and has
his principal place business the Office the Director National Intelligence, Washington, 20511. Defendant Dempsey being sued his official capacity.
Defendant William Evanina National Counterintelligence Executive and has his
principal place business the Office the Director National Intelligence, Washington,
20511. Defendant Evanina being sued his official capacity.
-2-
Case 1:17-cv-00508 Document Filed 03/21/17 Page
Defendant U.S. Department State agency the U.S. Government and
headquartered 2201 Street N.W., Washington, 20520.
Defendant Rex Tillerson U.S. Secretary State and has his principal place business the U.S. Department State, 2201 Street N.W., Washington, 20520.
Defendant Tillerson being sued his official capacity.
III.
LEGAL BACKGROUND defined the National Security Act 1947, the Intelligence Community
consists the Office the Director National Intelligence ODNI and separate, federal
agencies and/or agency components. U.S.C. 3003(4). Included among these agencies
and/or components the U.S. Department State Bureau Intelligence and Research.
10.
The agencies and/or agency components the Intelligence Community work
separately and together conduct intelligence activities necessary for the conduct foreign
relations and the protection the national security the United States.
11.
The Director National Intelligence DNI serves head the Intelligence
Community and charged statute with protect[ing] intelligence sources and methods from
unauthorized disclosure, among other duties and responsibilities. U.S.C. 3023(b)(1) and
3024(i)(1). ODNI exists assist the DNI carrying out his her duties and responsibilities.
Id. 3025(b).
12.
The National Counterintelligence Executive NCIX serves head the
Office the National Counterintelligence Executive within the ODNI and charged statute
with overseeing and coordinating the production counterintelligence damage assessments,
among other duties and responsibilities. U.S.C. 3383(b), (c), and (d)(4).
-3-
Case 1:17-cv-00508 Document Filed 03/21/17 Page
13.
Intelligence Community Directive ICD 732, issued June 27, 2014, requires damage assessment conducted whenever there actual suspected unauthorized
disclosure compromise classified national intelligence that may cause damage U.S.
national security. ICD 732(D)(2).
14. disclosure compromise involves classified national intelligence originating
from affecting only one Intelligence Community member, the head that member
organization required conduct damage assessment coordination with the NCIX. ICD
732(D)(4).
15. disclosure compromise involves classified national intelligence that
originates from otherwise affects more than one Intelligence Community member,
Community damage assessment must conducted the affected member organizations and
other representatives directed the DNI. ICD 732(D)(5).
16.
ICD 732 also plainly contemplates that the damage assessment result formal,
written report. sets forth detailed requirements concerning the preparation, contents, and use the report, including the distribution copies the completed report. See ICD 732(D)(7)
and (E). ICD 732 also specifies the roles and responsibilities various officials, including the
NCIX and the heads the Intelligence Community members, preparing and using the
assessment. ICD 732(E). Conducting damage assessment and preparing report also
undoubtedly entail creating other records about the assessment. See U.S.C. 3101 (requiring
federal agencies make and preserve records documenting their activities).
17.
National intelligence may classified one three levels: Top Secret,
Secret, and Confidential. According Executive Order 12356, issued December
29, 2009, Top Secret applies information, the unauthorized disclosure which reasonably
-4-
Case 1:17-cv-00508 Document Filed 03/21/17 Page
could expected cause exceptionally grave damage the national security. Secret
applies information, the unauthorized disclosure which reasonably could expected
cause serious damage the national security. Confidential applies information, the
unauthorized disclosure which reasonably could expected cause damage the national
security.
IV.
FACTUAL ALLEGATIONS
Secretary Clinton Email Practices
18.
During her tenure U.S. Secretary State from January 2009 February 2013,
Hillary Rodham Clinton used least one unofficial, unsecure email account, one more
unofficial, unsecure email server(s), and multiple unofficial, unsecure devices send and
receive email when conducting official, State Department business.
19.
Secretary Clinton continued maintain her official, State Department emails
one more unsecure, unofficial server(s) and device(s) after her tenure the department ended.
20. December 2014, Secretary Clinton returned approximately 30,000 emails the
State Department.
21.
After year-long investigation into Secretary Clinton email practices, the FBI
concluded that emails sent received the Secretary her unsecure, unofficial email system
contained Top Secret, Secret, and Confidential information. July 2016 statement,
FBI Director James Comey described the FBI findings follows;
From the group 30,000 e-mails returned the State Department, 110 emails e-mail chains have been determined the owning agency contain classified
information the time they were sent received. Eight those chains
contained information that was Top Secret the time they were sent; chains
-5-
Case 1:17-cv-00508 Document Filed 03/21/17 Page
contained Secret information the time; and eight contained Confidential
information, which the lowest level classification. Separate from those,
about 2,000 additional e-mails were up-classified make them Confidential;
the information those had not been classified the time the e-mails were sent.
***
With respect the thousands e-mails that were not among those produced
State, agencies have concluded that three those were classified the time they
were sent received, one the Secret level and two the confidential level.
22.
The FBI also found that Secretary Clinton and her colleagues were extremely
careless their handling very sensitive, highly classified information and that possible
that hostile actors gained access Secretary Clinton personal e-mail account.
Plaintiff Investigation
23. integral part Plaintiff mission educating the public about the operations
and activities the government and government officials.
24. this end, Plaintiff undertakes investigations the federal government and
federal officials making extensive use the Freedom Information Act FOIA among
other investigative tools. After submitting FOIA request agency, Plaintiff analyzes the
response receives and disseminates its findings the public.
25.
Plaintiff submits over 400 FOIA requests annually. agency fails respond request within the time required FOIA, the agency withholds responsive records,
Plaintiff often files suit. Plaintiff currently has over FOIA lawsuits pending against the
federal government.
26. March 2015, the New York Times reported that Secretary Clinton
exclusively used unofficial email account, hosted clintonemail.com server, for all her
official email communications during her entire, four-year tenure the State Department.
-6-
Case 1:17-cv-00508 Document Filed 03/21/17 Page
27.
Plaintiff immediately commenced investigation into Secretary Clinton email
practices and the impact those practices, including the Intelligence Community, the State
Department, and the government generally.
28. this end, Plaintiff reviewed relevant FOIA requests had submitted the
State Department, well lawsuits had brought seeking compel compliance with FOIA, determine how these requests and lawsuits had been impacted Secretary Clinton email
practices and how remedy that impact. Plaintiff successfully reopened some previously closed
FOIA lawsuits, including one, Judicial Watch, Inc. U.S. Department State, Case No, 131363 (EGS) (D. District Columbia), which Plaintiff subsequently was granted discovery
regarding Secretary Clinton email practices.
29.
Plaintiff also served dozens new FOIA requests either directly implicating
Secretary Clinton emails concerning relating Secretary Clinton email practices.
These included requests concerning the handling and storage the Secretary emails, the
devices which the Secretary accessed her email, the State Department response the public
revelation the Secretary email practices, attempts recover the Secretary emails, the
national security ramifications Secretary Clinton email practices, and the presence
classified information the Secretary emails, among other matters. substantial number
these requests led further litigation.
30.
Plaintiff investigation into Secretary Clinton email practices and the impact
those practices also has included retaining and consulting with computer and cybersecurity
experts. Plaintiff has published extensively about its investigation and its findings date,
including its 2016 book, Clean House. Plaintiff representatives have appeared the
media numerous occasions discuss Plaintiffs investigations and findings date, and
-7-
Case 1:17-cv-00508 Document Filed 03/21/17 Page
Plaintiff has hosted and produced several its own, much-viewed video programs, which have
included discussions experts and commentators, about the Secretary email practices and the
impact those practices.
31.
Plaintiff investigation into Secretary Clinton email practices and the impact
those practices constituted significant portion the organization programmatic efforts
2015 and 2016.
32.
Plaintiff anticipates that its investigation will continue significant part
its programmatic efforts 2017. The organization currently has approximately lawsuits
pending before the courts that either implicate directly concern Secretary Clinton emails
email practices, well multiple pending FOIA requests not litigation.
Defendants Refusal Conduct Damage Assessment
33. about September 14, 2016, ODNI announced that Intelligence
Community-wide damage assessment into Secretary Clinton email practices would
conducted and that individual Intelligence Community member would conduct such
assessment. See Bill Gertz, DNI declined required damage assessment Clinton leaked
email secrets, Washington Free Beacon, Sept. 14, 2016. Then-Director James Clapper
reportedly decided that the required assessment would not conducted. Id.
34. September 16, 2016, Plaintiff sent FOIA request ODNI seeking access
records about the decision not conduct the required assessment. The request was submitted additional part Plaintiff on-going investigation into the email matter and its impact.
When ODNI failed respond the request within the time required FOIA, Plaintiff filed
suit. See Judicial Watch, Inc. Office the Director National Intelligence, Case No. 17-
-8-
Case 1:17-cv-00508 Document Filed 03/21/17 Page
0053 (RDW) (D. District Columbia). the date this complaint, ODNI was still
searching for responsive records and responsive records have been produced.
35. January 10, 2017, Plaintiff sent letter then-Director Clapper, National
Counterintelligence Executive Evanina, and then-Secretary John Kerry formally requesting that
the damage assessment required ICD 732 commenced without further delay. true and
correct copy Plaintiff letter attached hereto Exhibit and incorporated herein
reference.
36. date, Plaintiff has received response its January 10, 2017 request, and
Plaintiff not aware any report announcement indicating that the assessment and resulting
report required ICD 732 has been conducted and prepared. information and belief,
assessment has been conducted and report has been prepared.
37. damage assessment report and records about assessment conducted pursuant ICD 732 are the quintessential types records that Plaintiff would request and obtain under
FOIA, then analyze and make available the public part its educational mission.
38. the Intelligence Community had conducted damage assessment Secretary
Clinton email practices during her tenure the State Department required ICD 732,
Plaintiff undoubtedly would have submitted FOIA request for the report the assessment and
for any other records about the assessment part its ongoing investigation. The only reason
Plaintiff has not requested such records because Defendants have failed and refused conduct
the required assessment.
39.
Prior damage assessments reports prepared the Intelligence Community,
least portions such reports and other records about damage assessments, have been made
public through FOIA otherwise. For example, May 2014, FOIA lawsuit compelled the
-9-
Case 1:17-cv-00508 Document Filed 03/21/17 Page
disclosure records about the damage assessment prepared after former National Security
Agency contractor Edward Snowden compromise classified national intelligence. See
Leopold U.S. Dep Defense, Case No. 14-cv-0197 (TSC) (D. District Columbia).
40.
Plaintiff investigation into Secretary Clinton email practice and the impact
those practices continues date.
41.
Because damage assessment has been undertaken, Plaintiff unable request
and obtain any and all releasable portions the assessment report, well any and all
releasable records about the assessment, and analyze and disseminate these records the public. result, Plaintiff being deprived information that would aid its investigation into
Secretary Clinton email practices and the impact those practices, including the
Intelligence Community, the State Department, and the government generally, and being
harmed its ability carry out its educational mission.
COUNT
(Administrative Procedure Act Violation)
42.
Plaintiff realleges paragraphs through fully stated herein.
43.
Under the APA, reviewing court shall compel agency action unlawfully
withheld unreasonably delayed and hold unlawful and set aside agency action, findings, and
conclusions found arbitrary, capricious, abuse discretion, otherwise not
accordance with law. U.S.C. 706(1) and (2)(A).
44.
Defendants have mandatory, non-discretionary duty under ICD 732 conduct
damage assessment Secretary Clinton email practices during her tenure the State
Department and prepare report their findings.
45.
Defendants failure and/or refusal conduct the required damage assessment and
prepare report their findings constitutes agency action unlawfully withheld unreasonably
Case 1:17-cv-00508 Document Filed 03/21/17 Page
delayed and/or final agency action that arbitrary, capricious, abuse discretion,
otherwise not accordance with law.
46.
Defendants unlawful failure and/or refusal conduct the required damage
assessment and prepare report their findings causing Plaintiff irreparable harm because
prevents Plaintiff from requesting, obtaining, and disseminating any and all releasable portions the assessment report, well any and all releasable records about the assessment, under
FOIA. More specifically, Defendants are injuring Plaintiff not only its ability obtain
information for its investigation into Secretary Clinton email practices and the impact those
practices, matter that substantial importance Plaintiff, but Defendants also are injuring
Plaintiff its ability carry out its educational mission.
47.
Plaintiff has adequate available administrative remedy.
48.
Plaintiff has adequate remedy law.
WHEREFORE, Plaintiff respectfully requests that the Court: (1) declare Defendants
failure and/or refusal conduct damage assessment Secretary Clinton email practices
during her tenure the State Department and prepare report accordance with ICD 732
agency action unlawfully withheld unreasonably delayed and arbitrary, capricious,
abuse discretion, otherwise not accordance with law; (2) order Defendants conduct
the required damage assessment and prepare report accordance with ICD 732 that
Plaintiff may request and obtain all releasable portions the report and related records under
FOIA; (3) grant Plaintiff award attorneys fees and other litigation costs reasonably
incurred this action; and (4) grant Plaintiff such other relief the Court deems just and
proper.
Case 1:17-cv-00508 Document Filed 03/21/17 Page
Dated: March 21, 2017
Respectfully submitted,
/s/ Michael Bekesha
Michael Bekesha
D.C. Bar No. 995749
JUDICIAL WATCH, INC.
425 Third Street S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff
Case 1:17-cv-00508 Document 1-1 Filed 03/21/17 Page
Exhibit
Case 1:17-cv-00508 Document 1-1 Filed 03/21/17 Page
Because one above the law!
VIA CERTIFlED MAIL
Mr. James Clapper
Director National Intelligence
Office the Director National Intelligence
Washington, 20511
Mr. William Evanina
National Counterintelligence Executive
Office the Director National Intelligence
Washington, 20511
Mr. John Kerry
U.S. Secretary State
U.S. Department State
2201 Street .W.
Washington, 20520
Re:
Damage Assessment Arising from Secretary Hillary Rodham Clintons Use nof:fkial Email Accm:mt/Sc:rvc.r
Gentlemen:
undoubtedly are aware, during her 2009-13 tenure U.S. Secretary State,
Hillary Rodham Clinton used least one unsecure, unofficial email account and one more
unsecure, unofficial email servers and devices conduct official, State Depaiiment business.
Secretary Clinton continued maintain her official. State Department emails one more
unsecurc, unofficial servers and devices after her tenure the department ended. She returned
portion these emails the State Department December 2014. July 2016, FBI
Director James Comey issued the following assessment the emails returned thenSccretary Clinton:
the group 30,000 e-mails returned the State Department, 110 emails e-mail chains have been determined the OVning agency contain classified
information the time they were sent received. Eight those chains
contained information
was Top Secret the time they were sent; chains
contained Secret infonnation the time; and eight contained Confidential
information, which the lowest level classification. Separate from those,
425 Third St., SW, Suite 800, Washington, 20024 Tel: (202) 646-5172 1-888-593-8442
FAX: (202) 646-5199 Email: info@JudicialWatch.org www.JudicialWatch.org
Case 1:17-cv-00508 Document 1-1 Filed 03/21/17 Page
January 10,
about 2,000 additional e-mails were up-classified make them Confidential;
the infonnation those had not been classified the time the e-mails were sent.
Corneys assessment continued: With respect the thousands e-mails that were not among
those produced State, agencies have concluded that thTee those were classified the time
they were sent received, one the Secret level and two the confidential level. The
assessment also found that Secretary Clinton and her colleagues were extremely careless
their handling very sensitive, highly classified information and possible that hostile
actors gained access Secretary Clintons personal e-mail account
According Executive Order 12356, the classification Top Secret shall applied
information, the unauthorized disclosure which reasonably could expected cause
exceptionally grave damage the national security. The classification Secret shall
applied information, the unauthorized disclosure which reasonably could expected
cause serious damage the national security. The classification Confidential shall
applied information, the unauthorized disclosure which reasonably could expected
cause damage the national security.
Intelligence Community Directive CTCIY) No. 732 requires damage assessment
conducted when there actual suspected unauthorized disclosure compromise
classified national intelligence that may cause damage U.S. national security actual
suspected loss, misuse, unauthorized access :modification classified national
intelligence that could adversely affect national security.~ The National Security Act 1947,
amended, mandates that the Director ofNational Intelligence shall protect intelligence sources
and methods unauthorized disclosure (50 U.S.C. 3024(i)(l )), and ICD No. 700 requires
that agency heads within the Intelligence Community. including the Department State,
[p]rotect national intelligence and intelligence sources, methods, and activities from
unauthorized disclosure. Assessing the damage from actual suspected, unauthorized
disclosure plainly important pai1 protecting intelligence sources, methods, and activities.
Then-Secretary Clinton~ use and maintenance least one unsecure, unofficial email
account and one more unsecure, unofficial email servers and devices send, receive, and
store Top Secret, Secret, and Confidential infom1ation plainly constitutes, minimum,
suspected, unauthorized disclosure compromise classified national intelligence
suspected loss, misuse, unauthorized access modification classified national
intelligence that may cause damage could adversely affect national security. our
understanding, however, that damage assessment under ICD No. 732 was undertaken
planned. See, e.g., Bill Gertz, DNI declined required damage assessment Clintons leaked
email secrets, Washington Free Beacon, Sept. 14, 2016 (quoting Office the Director
National Intelligence Spokesmen Joel Melstad saying, ODNI not leading
[intelligence community]-vide damage assessment and not aware any individual element
conducting such formal assessments.
425 Third St., SW, Suite 800, Washington, 20024 Tel: (202) 646-5172 1-888-593-8442
FAX: (202) 646-5199 Email: info@JudicialWatch.org
www.JudicialWatch.org
Case 1:17-cv-00508 Document 1-1 Filed 03/21/17 Page
January 10, 2017
Judicial Watch, Inc. (Judicial Watch) not-for-profit educational organization that
seeks promote transparency, accountability, and integrity government and fidelity the
rule oflaw. For more than years, Judicial Watch has used the Freedom ofinfommtion Act
(FO IA) and other public records laws and investigative tools gather information about the
operations and activities the federal government. submit over 400 FOIA requests
annually, analyze the responses Ve receive, and disseminate our findings the public. Judicial
Watch has served dozens FOIA requests either directly implicating Secretary Clintons emails concerning relating her email practices, attempts recover her emails, and the handling
and storage her emails, among other related subjects. Judicial Watchs investigatory efforts
regarding Secretary Clintons emails have constituted substantial portion the organizations
programmatic efforts over the past eighteen months. damage assessment such the one required ICD No. 732 quintessential type
record that Judicial Watch would request and obtain under FOIA, analyze, and then make
available the public carrying out its educational mission. Prior damage assessments,
least portions such assessments, have been made public through FOIA othenvise. May
2014, for example. FOIA lawsuit compelled the disclosure Defense Intelligence Agency
damage assessment former National Security Agency Contractor Edward Snowdens
compromise classified material. See Leopold US. Dep (?{Defense, Case No. 14-cv-0197
(TSC) (D. District Columbia).
The frtilure undertake the required assessment hanns Judicial Watch depriving
infonnation ordinarily would request and obtain under FOIA, thus damaging its ability carry
out its public interest mission obtaining and disseminating information about the federal
governments operations and activities. This especially the case given Judicial Watch~
extensive investigation into Secretary Clintons emails, email practices, and related subjects.
Accordingly, Judicial Watch respectfully requests that the damage assessment required ICD
No. 372 commenced without fmiher delay.
Should the required assessment not undertaken, are prepared file suit
appropriate federal district court seeking compel compliance with ICD No. 732, that
might seek and obtain access the assessment. See. e.g., Federal Election Commission
Atkins, 524 lJ.S. (1998); Action Alliance t?fSyenior Citizens Heckler, 789 F.2d 931 (D.C.
Cir. 1986). Please advise later than February 2017 assessment will undertaken. not hear from you that date, will assume assessment will undertaken and
will act accordingly.
Thank you for your attention this matter.
Sincerely,
Thomas Fitton
President
425 Third St., SW, Suite 800, Washington, 20024 Tel: (202) 646-5172 1-888-593-8442
FAX: (202) 646-5199 Email: info@JudicialWatch.org
www.JudicialWatch.org