WASHINGTON (CN) – A conservative legal advocacy group on Wednesday sued the National Security Agency and the office of the Director of National Intelligence in federal court for information about agency procedures guiding the handling of raw signals intelligence.
The American Center for Law and Justice, which describes itself in the April 12 complaint as an organization dedicated to the defense of constitutional liberties, had asked the intelligence agencies for the information to shed more light on what it claims was improper unmasking of Trump campaign associates by the Obama administration.
The group alleges that both agencies, which are named as defendants in the lawsuit, have failed to adequately respond to its Feb. 24 FOIA requests.
During an interview with the New York Times on April 5, President Trump deepened the imbroglio over the unmasking when he accused former national security adviser Susan Rice – without any supporting evidence – of having committed a crime by revealing the identities of Trump campaign associates.
Rice has since publicly denied any wrongdoing, but the allegations further stoked a far-right narrative that a shadow government, or the deep state, is actively working to undermine the Trump presidency.
The American Center for Law and Justice echoed that narrative in a press release it referred Courthouse News to after declining to comment directly on the 10-page Washington lawsuit.
The group claims that deep state operatives embedded throughout the bureaucracy, what it calls the shadow government, are leaking selective information for political purposes at an alarming rate.
“This week we have taken our most significant legal action yet to hold bad actors accountable – including going to federal court – and to shed light on the motivations behind the abuse of the intelligence gathering power and the coordinated leaking of classified information,” the press release states.
The group’s website allows visitors to sign a petition to stop the shadow government, which has garnered more than 161,000 signatures.
Washington-based national security attorney Mark Zaid said that he supports the group’s effort to push the government to release the information, but questions its motives.
“There is a statutory right under FOIA to gain access to records that shows what our government is up to, and use of that right is at its height when there are concerns of governmental wrong doing,” he said in a phone interview.
“That said, the underlying allegations that the group is promoting appear to be nothing more than conspiracy-laden allegations that have no basis in fact or law,” he added.
The group first sought the records after Rep. Devin Nunes of California, the Republican chair of the House Intelligence Committee, went to the White House to brief the president after telling reporters on Capitol Hill about Obama-era intelligence intercepts that had unmasked the identities of Trump campaign associates.
The move threw the House Intelligence investigation of Russian meddling in the 2016 election into chaos, and sparked calls for Nunes to step down from his role in leading the inquiry.
Trump said later that he felt the intelligence reports somewhat vindicated claims he made on March 4 in a series of four Tweets that the Obama administration had wire tapped Trump Tower during the campaign.
The New York Times however reported on March 30 that information about the incidental surveillance had come from White House officials, further agitating calls for Nunes to recuse himself.
He stepped aside on April 6 in the aftermath of that revelation, and just hours before the House ethics committee announced it would investigate allegations that he “may have made unauthorized disclosures of classified information.”
On April 12, unnamed Democratic and Republican lawmakers who said they reviewed the reports told CNN they could find no evidence that Obama administration officials had acted unusually or unlawfully, although others expressed concerns about the justification for the unmasking, and standards used to grant such requests.
That is precisely what the American Center for Law and Justice asked the NSA and ODNI for, in addition to their review and approval of those procedures, and discussions about them with former Director of National Intelligence Eric Clapper and former Attorney General Loretta Lynch.
They specifically sought procedures governing the availability and dissemination of raw signals intelligence information under Reagan-era Executive Order 12333, which has been amended several times.
The last change, approved by Lynch on Jan.3, caught the group’s attention.
“Last month, we uncovered that the Obama Administration changed the rules under Executive Order 12333 and dramatically increased access by bureaucratic agencies to the raw intelligence information held by the NSA,” the press release about the lawsuit reads.
“It did so just days before the Obama Administration left office and President Trump was to be sworn in,” it added.
Without placing too much stock on Rice’s denials that she acted inappropriately, Zaid said that public information about how the unmasking process works so far does not support allegations of any wrongdoing.
“We know little drips and drabs of what’s being released through sources,” he said. “There’s no way to truly assess what has happened.”
“By the description we have heard so far, this is a completely normal undertaking that creates little suspicion based on existing facts,” he added.
The ODNI did not respond directly to a request for comment about the lawsuit, but referred Courthouse News to a fact sheet about the updated raw signals intelligence availability procedures.
The ODNI says the new directive permits it to share raw signals intelligence, which is unevaluated or unminimized, with authorized recipients in the intelligence community.
According to the ODNI, this move will enhance information sharing, collaboration and integration of U.S. intelligence agencies, which it says the 9/11 Commission and other reviews of intelligence agencies have recommended.
“This access will enable IC elements to bring their own analytic expertise to reviewing that information and to use that information in support of their own missions,” the fact sheet says.
The ODNI claims the directive does not alter civil liberties or privacy protections.
“Access will be limited to circumstances where the information is expected to further a foreign intelligence or counterintelligence mission in a significant way,” the fact sheet states.
The new directive requires a high-level official at the requesting agency to submit a written request, in conjunction with appropriate legal counsel and a high-level official tasked with privacy and civil liberties protection.
The requester must also justify why it needs the intelligence, why it cannot get it elsewhere and how it will protect it.
According to Zaid, who said he favors the FOIA lawsuit but disagrees with the American Center for Law and Justice about the reasons for its necessity, disclosure of the information by the NSA and ODNI may or may not resolve the question of whether Rice acted outside her bounds.
“We would never know her intent, which is obviously problematic,” he said. “Part of the story line is, if she did this for political purposes that is absolutely inappropriate, if not illegal – and probably is illegal,” he added.
But something would have to be uncovered that showed inappropriate intent, like how she used the information or where it ended up, Zaid said.
Much of that is still classified.
“They’re going to have to declassify it,” he said, noting that he is uncertain whether the intelligence agencies will take that step. “That’s going to be a substantive problem for the lawsuit.”
The NSA did not respond to an emailed request for comment about the lawsuit.
The American Center for Law and Justice claims the NSA and ODNI denied their requests for expedited processing, and have not indicated within the timeframe required by law the scope of the documents they intend to produce, and those they will withhold.
The group seeks declaratory and injunctive relief, and court orders compelling the intelligence agencies to search for produce all non-exempt records.