We can ‘neither confirm nor deny’ we’re spying on Congress

Our bipartisan, public interest organization frequently files Freedom of Information Act (FOIA) requests to learn how the FBI, CIA and other intelligence and law enforcement agencies obtain warrantless access to Americans’ personal information, in defiance of the Fourth Amendment. It is, to say the least, a target-rich environment.

A government watchdog agency revealed in February that the CIA has been conducting bulk surveillance of Americans in violation of that agency’s charter forbidding domestic spying. In March, we learned that a component of the Department of Homeland Security is scooping up Americans’ personal financial transactions in the form of money transfers.

In both instances, the government acts on the belief that the Fourth Amendment requirement for a probable cause warrant can be sidestepped when it comes to obtaining our personal movements and other sensitive consumer information from our cell phones and digital devices. Government attorneys assert it is legal for their agencies to simply open the government purse and buy our data scraped from apps and social media, no warrant needed. When further challenged, the government’s ultimate fallback is a claim that a Reagan-era executive order, known as E.O. 12333, means that it needs no statutory authority to look at whatever it wants.

It wasn’t supposed to be like this. Congress created the Freedom of Information Act in 1967 at a time when lawless surveillance of Americans by the FBI and CIA was rampant. It sought to create balance with a tool for Americans to get some clarity about government operations. But even here, the government ignores the plain meaning of the law to do whatever it wants.

For example, our organization has been forced to sue the Department of Justice and FBI to compel them to produce records on potential spying on Congress. We are concerned that members of Congress — of both parties — who have publicly stated they believe U.S. intelligence agencies have been surveilling them and has “unmasked” their identities in foreign communications, may have been targeted by our government. We also have been forced to sue over the refusal of six government agencies to respond to a FOIA request seeking information on surveillance of presidential campaign and transition officials.

In both cases, our requests have been stymied by a legal tactic known as a “Glomar response.”

This judicial doctrine arose from one of this country’s greatest intelligence coups. After a Soviet nuclear ballistic missile submarine sank in the Pacific Ocean in 1968, the U.S. Navy located the wreck at a depth of three miles. With an elaborate cover story and the help of billionaire Howard Hughes, the CIA spent the current value of $1.3 billion to build an ambitious deep-sea platform, Hughes Glomar Explorer, which dropped an enormous claw to the seabed to retrieve a section of the sub.

When journalists followed up on Glomar rumors, the government developed the “Glomar response,” which holds that certain information vital to national security can be neither confirmed nor denied.

What was once an exceptional tactic to protect heroic intelligence operations has since become a standard ploy to render FOIA meaningless. In the case of potential spying on Congress, some of the documents we seek are correspondence between intelligence agencies and members of Congress who believe they’ve been targeted. On what national security basis can the government categorically refuse to search for, and thus withhold, all correspondence with Congress?

In our FOIA concerning spying on campaigns, the government asserts that the very act of searching for documents could jeopardize national security. Opening a file drawer to look for congressional correspondence is not, in fact, analogous to publicly revealing the existence of a super-secret vessel capable of bringing a Soviet nuclear submarine to the surface. Besides, how can the government know which files are classified and involve national security, and which can be released, without looking at them?

When Attorney General Merrick Garland was chief judge of the D.C. Circuit Court, he upheld the principle that official acknowledgement of documents can force their disclosure over an otherwise valid Glomar response. Perhaps courts could further adopt a bright-line rule that would balance national security and the U.S. Constitution. They could hold that an agency is acting in bad faith when it attempts to “Glomar” documents containing evidence of possible illegal interference in Congress and campaigns.

Judges are the Constitution’s last line of defense. The expansion of the Glomar loophole to circumvent FOIA threatens to render a law passed by Congress, and signed by a president, with the approval of the American people who elected them, utterly meaningless. At the very least, the courts should make the agencies look through their files as FOIA clearly demands.

Unless judges respond with some vigor, the trust Americans place in our government will deserve to be lower than a Soviet sub stuck in the Marianas Trench.

Mark Udall was a U.S. senator representing Colorado from 2009 to 2015. Bob Goodlatte represented Virginia’s 6th District in Congress from 1993 to 2019 and chaired the House Judiciary Committee. Both are senior policy advisers to the Project for Privacy and Surveillance Accountability.