Records Sought by Judicial Watch May Remain Closed to the Public for Five Years
Obama NSC Advisor Susan Rice’s Unmasking Material is at Obama Library
(Washington, DC) – Judicial Watch today announced that the National Security Council (NSC) on May 23, 2017, informed it by letter that the materials regarding the unmasking by Obama National Security Advisor Susan Rice of “the identities of any U.S. citizens associated with the Trump presidential campaign or transition team” have been removed to the Obama Library.
The NSC will not fulfill an April 4 Judicial Watch request for records regarding information relating to people “who were identified pursuant to intelligence collection activities.”
The agency also informed Judicial Watch that it would not turn over communications with any Intelligence Community member or agency concerning the alleged Russian involvement in the 2016 presidential election; the hacking of DNC computers; or the suspected communications between Russia and Trump campaign/transition officials. Specifically, the NSC told Judicial Watch:
Documents from the Obama administration have been transferred to the Barack Obama Presidential Library. You may send your request to the Obama Library. However, you should be aware that under the Presidential Records Act, Presidential records remain closed to the public for five years after an administration has left office.
Judicial Watch’s Freedom of Information Act (FOIA) April 4 request sought:
1.) Any and all requests for information, analyses, summaries, assessments, transcripts, or similar records submitted to any Intelligence Community member agency or any official, employee, or representative thereof by former National Security Advisor Susan Rice regarding, concerning, or related to the following:
Any actual or suspected effort by the Russian government or any individual acting on behalf of the Russian government to influence or otherwise interfere with the 2016 presidential election.
The alleged hacking of computer systems utilized by the Democratic National Committee and/or the Clinton presidential campaign.
Any actual or suspected communication between any member of the Trump presidential campaign or transition team and any official or employee of the Russian government or any individual acting on behalf of the Russian government.
The identities of U.S. citizens associated with the Trump presidential campaign or transition team who were identified pursuant to intelligence collection activities.
2.) Any and all records or responses received by former National Security Advisor Susan Rice and/or any member, employee, staff member, or representative of the National Security Council in response to any request described in part 1 of this request.
3.) Any and all records of communication between any official, employee, or representative of the Department of any Intelligence Community member agency and former National Security Advisor Susan Rice and/or any member, employee, staff member, or representative of the National Security Council regarding, concerning, or related to any request described in Part 1 of this request.
The time frame for this request was January 1, 2016, to the April 4, 2017.
While acknowledging in its FOIA request that “we are cognizant of the finding by the Court of Appeals … that [the NSC] “does not exercise sufficiently independent authority to be an ‘agency’ for purposes of the Freedom of Information Act,” Judicial Watch argued:
The records sought in this request pertain to actions by the former National Security Advisor that demonstrate a much higher degree of independent authority than was contemplated by the court; specifically, the issuance of directives to the Intelligence Community related to the handling of classified national security information…
The recent revelations of the role of Susan Rice in the unmasking the names of U.S. citizens identified in the course of intelligence collection activities and the potential that her actions contributed to the unauthorized disclosure of classified national security information are matters of great public interest.
Judicial Watch has filed six FOIA lawsuits related to the surveillance, unmasking, and illegal leaking targeting President Trump and his associates (see here, here, here, here, here and here).
“Prosecutors, Congress, and the public will want to know when the National Security Council shipped off the records about potential intelligence abuses by the Susan Rice and others in the Obama White House to the memory hole of the Obama Presidential Library,” said Judicial Watch President Tom Fitton. “We are considering our legal options but we hope that the Special Counsel and Congress also consider their options and get these records.”
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Susan Rice’s White House Unmasking: A Watergate-style Scandal
Her interest was not in national security but to advance the political interests of the Democratic party.
Because they are the agencies that collect and refine intelligence “products” for the rest of the “intelligence community,” they are responsible for any unmasking; and they do it under “minimization” standards that FBI Director James Comey, in recent congressional testimony, described as “obsessive” in their determination to protect the identities and privacy of Americans. Understand: There would have been no intelligence need for Susan Rice to ask for identities to be unmasked. If there had been a real need to reveal the identities — an intelligence need based on American interests — the unmasking would have been done by the investigating agencies. The national-security adviser is not an investigator. She is a White House staffer. The president’s staff is a consumer of intelligence, not a generator or collector of it.
If Susan Rice was unmasking Americans, it was not to fulfill an intelligence need based on American interests; it was to fulfill a political desire based on Democratic-party interests. The FBI, CIA, and NSA generate or collect the intelligence in, essentially, three ways: conducting surveillance on suspected agents of foreign powers under the Foreign Intelligence Surveillance Act (FISA), and carrying out more-sweeping collections under two other authorities — a different provision of FISA, and a Reagan-era executive order that has been amended several times over the ensuing decades, EO 12,333. As Director Comey explained, in answering questions posed by Representative Trey Gowdy (R., S.C.), those three agencies do collection, investigation, and analysis. In general, they handle any necessary unmasking — which, due to the aforementioned privacy obsessiveness, is extremely rare.
Unlike Democratic-party operatives whose obsession is vanquishing Republicans, the three agencies have to be concerned about the privacy rights of Americans. If they’re not, their legal authority to collect the intelligence — a vital national-security power — could be severely curtailed when it periodically comes up for review by Congress, as it will later this year. Those three collecting agencies — FBI, CIA, and NSA — must be distinguished from other components of the government, such as the White House. Those other components, Comey elaborated, “are consumers of our products.” That is, they do not collect raw intelligence and refine it into useful reports — i.e., reports that balance informational value and required privacy protections. They read those reports and make policy recommendations based on them.
White House staffers are not supposed to be in the business of controlling the content of the reports; they merely act on the reports. Thus, Comey added, these consumers “can ask the collectors to unmask.” But the unmasking authority “resides with those who collected the information.” Of course, the consumer doing the asking in this case was not just any government official. We’re talking about Susan Rice. This was Obama’s right hand doing the asking. If she made an unmasking “request,” do you suppose anyone at the FBI, CIA, or NSA was going to say no? That brings us to three interesting points.
The first involves political intrusion into law enforcement — something that the White House is supposed to avoid. (You may remember that Democrats ran Bush attorney general Alberto Gonzales out of town over suspicions about it.) As I have noted repeatedly, in publishing the illegally leaked classified information about former national-security adviser Michael Flynn’s communications with Russian ambassador Sergey Kislyak, the New York Times informs us that “Obama advisers” and “Obama officials” were up to their eyeballs in the investigation: Obama advisers heard separately from the F.B.I. about Mr. Flynn’s conversation with Mr. Kislyak, whose calls were routinely monitored by American intelligence agencies that track Russian diplomats.
The Obama advisers grew suspicious that perhaps there had been a secret deal between the incoming team and Moscow, which could violate the rarely enforced, two-century-old Logan Act barring private citizens from negotiating with foreign powers in disputes with the United States. The Obama officials asked the F.B.I. if a quid pro quo had been discussed on the call, and the answer came back no, according to one of the officials, who like others asked not to be named discussing delicate communications.
[Translation: “asked not to be named committing felony unauthorized disclosure of classified information.”] The topic of sanctions came up, they were told, but there was no deal. [Emphasis added.] It appears very likely that Susan Rice was involved in the unmasking of Michael Flynn. Was she also monitoring the FBI’s investigation? Was she involved in the administration’s consideration of (bogus) criminal charges against Flynn? With the subsequent decision to have the FBI interrogate Flynn (or “grill” him, as the Times put it)? The second point is that, while not a pillar of rectitude, Ms. Rice is not an idiot. Besides being shrewd, she was a highly involved, highly informed consumer of intelligence, and a key Obama political collaborator. Unlike the casual reader, she would have known who the Trump-team players were without needing to have their identities unmasked.
Do you really think her purpose in demanding that names be revealed was to enhance her understanding of intelligence about the activities and intentions of foreign targets? Seriously? I’m betting it was so that others down the dissemination chain could see the names of Trump associates — names the investigating agencies that originally collected the information had determined not to unmask. Third, and finally, let’s consider the dissemination chain Rice had in mind. The most telling remark that former Obama deputy defense secretary Evelyn Farkas made in her now-infamous MSNBC interview was the throw-away line at the end: “That’s why you have all the leaking.” Put this in context: Farkas had left the Obama administration in 2015, subsequently joining the presidential campaign of, yes, Hillary Clinton — Trump’s opponent.
She told MSNBC that she had been encouraging her former Obama-administration colleagues and members of Congress to seek “as much information as you can” from the intelligence community. “That’s why you have the leaking.” To summarize: At a high level, officials like Susan Rice had names unmasked that would not ordinarily be unmasked. That information was then being pushed widely throughout the intelligence community in unmasked form . . . particularly after Obama, toward the end of his presidency, suddenly — and seemingly apropos of nothing — changed the rules so that all of the intelligence agencies (not just the collecting agencies) could have access to raw intelligence information. As we know, the community of intelligence agencies leaks like a sieve, and the more access there is to juicy information, the more leaks there are.
Meanwhile, former Obama officials and Clinton-campaign advisers, like Farkas, were pushing to get the information transferred from the intelligence community to members of Congress, geometrically increasing the likelihood of intelligence leaks. By the way, have you noticed that there have been lots of intelligence leaks in the press? There’s an old saying in the criminal law: The best evidence of a conspiracy is success. The criminal law also has another good rule of thumb: Consciousness of guilt is best proved by false exculpatory statements. That’s a genre in which Susan Rice has rich experience. Two weeks ago, she was asked in an interview about allegations by House Intelligence Committee Chairman Devin Nunes (R., Calif.) that the Obama administration had unmasked Trump-team members.
“I know nothing about this,” Rice replied. “I was surprised to see reports from Chairman Nunes on that count today.” Well, at least she didn’t blame it on a video.
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