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Judicial Watch • JW v State Samantha Power C MSJ 00300

JW v State Samantha Power C MSJ 00300

JW v State Samantha Power C MSJ 00300

Page 1: JW v State Samantha Power C MSJ 00300

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Number of Pages:19

Date Created:July 26, 2018

Date Uploaded to the Library:July 27, 2018

Tags:Samantha, 00300, unmasking, Gowdy, MSJ, Ambassador, Power, Russian, Amnesty, Susan Rice, exhibit, ACLU, DHS, State Department, FBI, DOJ, FOIA, CIA


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Case 1:18-cv-00300-TJK Document Filed 07/26/18 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
____________________________________)
JUDICIAL WATCH, INC.,
Case No. 18-300-TJK
PLAINTIFF CONSOLIDATED BRIEF OPPOSITION
MOTION FOR SUMMARY JUDGMENT AND SUPPORT
CROSS-MOTION FOR SUMMARY JUDGMENT
Defendant Glomar response this FOIA lawsuit facially proper, but does not hold under examination. According multiple media accounts, former U.S. Ambassador the
United Nations Samantha Power made many unmasking requests other intelligence
agencies, asking those agencies unredact the names U.S. citizens who were targets
Russian espionage activities. These redactions are made protect the privacy targets
espionage whose identity otherwise limited intelligence value. The unmasking
requests were made even though the U.N. Ambassador not counterintelligence official and
has known role investigating espionage. Plaintiff FOIA request asked for records about
these unmasking requests from the U.N. Ambassador office. Glomar defense intended allow agencies refuse admit deny the existence records when doing would itself reveal exempt and sensitive information. Defendant State
Department has claimed that admitting denying the existence records this case would
reveal such information. However, considering the unusual media reports about the unmasking
requests from the U.N. Ambassador, and because the U.N. Ambassador not intelligence
Case 1:18-cv-00300-TJK Document Filed 07/26/18 Page
official, Defendant has not met its burden show that admitting denying the existence
these records would reveal unknown and exempt information which would harm national
security.
Factual Background
When intelligence agencies monitor and intercept communications from foreign agents
attempting infiltrate U.S. groups steal information, the agencies will incidentally collect
information about U.S. persons targeted the foreign agents. Before passing that intelligence other government officials, intelligence agents will make redactions the material
protect the privacy U.S. persons. Officials national security review this redacted
correspondence determine the scope and purpose foreign espionage activities, not spy
American targets foreign agents. When government official needs greater level
understanding espionage activities which might revealed the names the U.S. targets,
they request that the redaction removed, procedure known informally unmasking. the investigation into Russia efforts influence the 2016 U.S. election unfolded,
was revealed that both National Security Advisor Susan Rice and U.S. Ambassador the United
Nations Samantha Power made several unmasking requests learn the identities U.S.
political campaign targets Russian espionage. While not unprecedented, the nature these
unmasking requests nevertheless inspired speculation about whether they might have been made obtain political intelligence instead foreign intelligence. These questions turn led
efforts seek greater transparency about the unmasking requests, including the present lawsuit.
See e.g. Judicial Watch, Inc. United States Dep Homeland Sec., No. 16-5339, 2018 U.S.
App. Lexis 19605, *46 (D.C. Cir. July 17, 2018) democratic society requires informed
Case 1:18-cv-00300-TJK Document Filed 07/26/18 Page
citizenry not only check against corruption and hold government accountable, but also
dispel misconceptions and fallacies that secrecy feeds. (Pillard, concurring).
The circumstances surrounding the unmasking requests Samantha Power were
unusual. Congressman Trey Gowdy has revealed that multiple requests for the identities U.S.
citizen targets Russia espionage activities came from Samantha Power her office.1
Troublingly, and widely reported the press, Congressman Gowdy disclosed that some the
unmasking requests for citizen names made Ambassador Power office were not authorized her.2 Furthermore, Defendant Glomar response also questionable this case because,
unlike the National Security Advisor, the U.N. Ambassador position has clear intelligencerelated function.
Standard Review FOIA litigation, all litigation, summary judgment appropriate only when the
pleadings and declarations demonstrate that there genuine issue material fact and the
moving party entitled judgment matter law. Anderson Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Fed.R.Civ.P. 56(c). reviewing motion for summary judgment under
FOIA, the court must view the facts the light most favorable the requester. Weisberg
U.S. Dep Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). Also FOIA litigation, but unlike
WASHINGTON EXAMINER, Trey Gowdy: Samantha Power testified that intel officials made unmasking requests
her name, Pete Kasperowicz, October 17, 2017 available https://www.washingtonexaminer.com/trey-gowdysamantha-power-testified-that-intel-officials-made-unmasking-requests-in-her-name and attached hereto Exhibit Plaintiff Statement Material Facts.
FOX NEWS, Gowdy: Former Ambassador Samantha Power claims others unmasked her name, Bret Baier
and Catherine Herridge, October 18, 2017, available http://www.foxnews.com/politics/2017/10/18/gowdy-formerun-ambassador-samantha-power-claims-others-unmasked-in-her-name.html and attached hereto Exhibit
Plaintiff Statement Material Facts.
WALL STREET JOURNAL, Unmasking Samantha Power, Editorial Board, August 11, 2017, available
https://www.wsj.com/articles/unmasking-samantha-power-1502492067 and attached hereto Exhibit
Plaintiff Statement Material Facts.
Case 1:18-cv-00300-TJK Document Filed 07/26/18 Page
most other litigation, defendant agency moving for judgment bears the burden proof not
the plaintiff challenging defendant compliance with FOIA. U.S.C. 552(a)(4)(B) the
burden the agency sustain its action Military Audit Project Casey, 656 F.2d 724,
739 (D.C. Cir. 1981). Finally, agency decisions withhold disclose information under
FOIA are reviewed novo the district court and are not subject deference. Judicial
Watch, Inc. U.S. Postal Service, 297 Supp. 252, 256 (D.D.C. 2004).
Argument
The Highly Unusual Public Record About Samantha Power Unmasking Requests
Renders State Standard Glomar Defense Inadequate
Facially, Defendant brief meets all the standard criteria for establishing Glomar
defense, and Plaintiff will not dwell those factors. any normal case, the government brief
and declaration would likely sufficient obtain judgment its favor. However,
Defendant Glomar claims fail here because State has not met the preliminary burden applicable
somewhat uniquely this case show that the specific alleged counter-espionage activities
the former U.N. Ambassador would considered ordinary government intelligence activity.
Unlike the National Security Advisor, the U.N. Ambassador does not have known intelligence
function that would necessitate learning the names U.S. persons targeted Russian
espionage.4
The subject Plaintiff FOIA complaint not records about the U.N. Ambassador
receiving briefings about Russian election interference, but records about the U.N. Ambassador
WALL STREET JOURNAL, Unmasking Samantha Power, Editorial Board, August 11, 2017, available
https://www.wsj.com/articles/unmasking-samantha-power-1502492067 and attached hereto Exhibit
Plaintiff Statement Material Facts.
Case 1:18-cv-00300-TJK Document Filed 07/26/18 Page
asking for the names specific U.S. citizen targets Russian espionage.5 Moreover, media
reports have indicated that the U.N. Ambassador requests for names U.S. targets foreign
intelligence were not even being made Ambassador Power, but were being made other
interested persons her name, perhaps without authorization.6 The government has not
addressed these particulars about this case, and has therefore not met its burden assert the
Glomar defense with adequate justification. Considering its arguments, the government likely
cannot satisfy its Glomar burden here without minimum submitting camera declaration
adequately accounting for the somewhat unusual public record this case. Military Audit
Project Casey, 656 F.2d 724, 732 (D.C. Cir. 1981) (in camera declaration may submitted the public record not sufficient justify the Glomar responses
There substantial difference between this case, which concerns the former U.N.
Ambassador, and Judicial Watch DOJ and NSA, where Plaintiff ultimately dismissed its
lawsuit after the government briefed its Glomar defense for the former National Security
Advisor records. Case No. 17-1002-CKK (D.D.C.), ECF (joint stipulation dismissal filed
March 19, 2018); see Brown Decl., ECF 8-1 6-7, 12, fn. Defendant brief this case
does not adequately support Glomar defense because, unlike the National Security Advisor,
there ordinary presumption that U.N. Ambassadors are routinely conducting counterespionage investigations that would necessitate knowing the names U.S. citizen targets.
Defendant has not submitted camera declaration, and therefore not met its burden
FOX NEWS, Gowdy: Former Ambassador Samantha Power claims others unmasked her name, Bret Baier
and Catherine Herridge, October 18, 2017, available http://www.foxnews.com/politics/2017/10/18/gowdy-formerun-ambassador-samantha-power-claims-others-unmasked-in-her-name.html and attached hereto Exhibit
Plaintiff Statement Material Facts.
WASHINGTON EXAMINER, Trey Gowdy: Samantha Power testified that intel officials made unmasking requests
her name, Pete Kasperowicz, October 17, 2017 available https://www.washingtonexaminer.com/trey-gowdysamantha-power-testified-that-intel-officials-made-unmasking-requests-in-her-name and attached hereto Exhibit Plaintiff Statement Material Facts.
Case 1:18-cv-00300-TJK Document Filed 07/26/18 Page
establish the Glomar defense. Cozen Connor U.S. Dep Treasury, 570 Supp. 749,
786-87 (E.D. Pa. 2008) (explaining that the court may examine classified affidavits camera
the public record not sufficient justify the Glomar responses Badrawi DHS, 583
Supp. 285, 315 (D.Conn. 2008) (finding that FBI had not supported its Glomar response and
directing submit camera affidavit).
State also wrong argue that its Glomar claim here justified part due risk
publicizing mosaic intelligence information when combined with Plaintiff separate FOIA
lawsuit for the NSA records. ECF 18-19; ECF 8-1 6-7, 12, fn. State argues that the
admission denial these records existence combined could create public mosaic
information jeopardizing national security. ECF 19. However, this argument ignores the
fact that the government has already asserted Glomar defense the lawsuit for former NSA
Susan Rice records, and Plaintiff ultimately dismissed its claims that case without piercing
that Glomar defense. Judicial Watch DOJ and NSA, Case No. 17-1002-CKK (D.D.C.), ECF (joint stipulation dismissal filed March 19, 2018). Accordingly, whatever harms might
come from admission denial this lawsuit, those harms cannot compounded
lawsuit which has already been dismissed.
Defendant explanation does not persuasively make the case that confirmation
involvement the former U.N. Ambassador will harmful. Military Audit Project Casey,
656 F.2d 724, 732 (D.C. Cir. 1981) (agency asserting Glomar must establish why official
confirmation the involvement the particular agencies question was undesirable. ECF 16-17. Everyone knows about the Russian election investigation. sitting Congressman has
Case 1:18-cv-00300-TJK Document Filed 07/26/18 Page
confirmed the former U.N. Ambassador was involved unmasking requests.7 more harm
can result from admission the existence these records. See e.g. Amnesty Int USA CIA,
728 Supp. 479, 514 (S.D.N.Y. 2010) and ACLU DOD, 406 Supp. 330, 333
(S.D.N.Y. 2005) (weighing impact reported media disclosures potential further harm
acknowledgement evaluating Glomar defense).
Defendant arguments all appear more properly asserted standard Exemption
claims rather than Glomar, because the arguments all rely what the records might reveal
foreign adversaries about the Russian election interference investigation. Defendant claim that
acknowledgement the State Department involvement the Russian investigation would
harm national security simply does not appear factually strong one. ACLU CIA, 710
F.3d 422, 427, 432 (D.C. Cir. 2013) (finding that strains credulity suggest that agency
charged with gathering intelligence affecting the national security does not have intelligence
interest drone strikes ECF 16-17. Accordingly, the government Glomar assertion
here inappropriate. Ctr. for Human Rights and Constitutional Law Nat GeospatialIntelligence Agency, 506 App 547, 548 (9th Cir. 2013) (remanding case because public
declaration failed demonstrate harm acknowledging existence records sufficient
support Glomar defense). court rejection agency Glomar response does not mandate disclosure the
records themselves but requires the agency process the records the usual manner under
FOIA. Specifically, the agency must inform the requester the number records and either
release the records justify its withholding with privilege log Vaughn index pursuant
FOX NEWS, Gowdy: Former Ambassador Samantha Power claims others unmasked her name, Bret Baier
and Catherine Herridge, October 18, 2017, available http://www.foxnews.com/politics/2017/10/18/gowdy-formerun-ambassador-samantha-power-claims-others-unmasked-in-her-name.html and attached hereto Exhibit
Plaintiff Statement Material Facts.
Case 1:18-cv-00300-TJK Document Filed 07/26/18 Page
FOIA exemptions. American Civil Liberties Union Central Intelligence Agency, 109
Supp. 220, 225 (D.D.C. 2015) (after Glomar response was rejected the appellate court,
the district court still upheld CIA withholding thousands classified documents). this
case, the government, relying its Glomar defense, has failed acknowledge the existence
records and has therefore not produced Vaughn index information properly withheld
pursuant Exemptions and Accordingly, the government has not met its burden proof
and the Court should ordered Defendant produce any non-exempt records and justify any
withholdings with satisfactory Vaughn index. the government correct and release many these records would harm national security, can make its case based the documents
content.
Conclusion
Defendant motion for summary judgment should denied. The Court should grant
Plaintiff motion for summary judgment and order Defendant release all non-exempt portions the records issue along with proper Vaughn index any withholdings information
under Exemptions and
Dated: July 26, 2018
Respectfully submitted, Chris Fedeli
Chris Fedeli
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
cfedeli@judicialwatch.org
202-646-5172
Counsel for Plaintiff
Case 1:18-cv-00300-TJK Document 10-1 Filed 07/26/18 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
____________________________________)
JUDICIAL WATCH, INC.,
Case No. 18-300-TJK
PLAINTIFF COUNTER-STATEMENT DEFENDANT STATEMENT
UNDISPUTED MATERIAL FACTS, AND STATEMENT MATERIAL FACTS
SUPPORT CROSS-MOTION FOR SUMMARY JUDGMENT
Plaintiff Judicial Watch, Inc., counsel and pursuant Local Civil Rule 7.1(h),
respectfully submits this Response Defendant Statement Material Facts Not Dispute
(ECF 3-5) and Statement Material Facts Support Cross-Motion for Summary
Judgment:
Plaintiff Counter-Statement Defendants Statement Undisputed Material Facts
Not disputed.
Not disputed.
Not disputed.
Not disputed.
Not disputed, except that Plaintiff lacks sufficient knowledge about Catherine
Brown classification authority confirm deny. Judicial Watch, Inc. Food and Drug
Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (discussing the asymmetrical distribution
knowledge between requester and agency FOIA litigation).
Case 1:18-cv-00300-TJK Document 10-1 Filed 07/26/18 Page
Plaintiff does not dispute the first sentence this paragraph. The remainder
this paragraph consists legal conclusions which response required. the extent
response required denied.
II.
Plaintiff Statement Undisputed Material Facts
Defendant Department State has asserted Glomar response Plaintiff FOIA
request, claiming that admit deny the existence the requested records would release
information that exempt from FOIA under Exemptions WASHINGTON EXAMINER article titled Trey Gowdy: Samantha Power testified
that intel officials made unmasking requests her name Pete Kasperowicz was published
October 17, 2017 and attached hereto Exhibit FOX NEWS article titled Gowdy: Former Ambassador Samantha Power claims
others unmasked her name Bret Baier and Catherine Herridge was published October 18,
2017 and attached hereto Exhibit WALL STREET JOURNAL editorial titled Unmasking Samantha Power the
newspaper editorial board was published August 11, 2017 and attached hereto Exhibit
Dated: July 26, 2018
Respectfully submitted, Chris Fedeli
Chris Fedeli
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
cfedeli@judicialwatch.org
202-646-5172
Counsel for Plaintiff
Case 1:18-cv-00300-TJK Document 10-1 Filed 07/26/18 Page
Exhibit
Case 1:18-cv-00300-TJK Document 10-1 Filed 07/26/18 Page
Case 1:18-cv-00300-TJK Document 10-1 Filed 07/26/18 Page
Case 1:18-cv-00300-TJK Document 10-1 Filed 07/26/18 Page
Exhibit
Case 1:18-cv-00300-TJK Document 10-1 Filed 07/26/18 Page
Case 1:18-cv-00300-TJK Document 10-1 Filed 07/26/18 Page
Case 1:18-cv-00300-TJK Document 10-1 Filed 07/26/18 Page
Exhibit
Case 1:18-cv-00300-TJK Document 10-1 Filed 07/26/18 Page
Case 1:18-cv-00300-TJK Document 10-1 Filed 07/26/18 Page