Case 1:17-cv-01000-CKK Document 26 Filed 08/30/18 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

THE PROTECT DEMOCRACY PROJECT,

INC.

Plaintiff,

v. Civil Action No. 17-CV-1000-CKK

U.S. NATIONAL SECURITY AGENCY,

Defendant.

COMBINED REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND

OPPOSITION TO NSA’S MOTION FOR SUMMARY JUDGMENT

Michael P. Abate
(DDC Bar No. MD28077)
(DC Bar No. 1023343)
Kaplan Johnson Abate & Bird LLP
710 W. Main St., 4th Floor
Louisville, KY 40202
Phone: (502) 540-8280
Fax: (502) 540-8282

Benjamin L. Berwick
(MA Bar No. 679207)
The Protect Democracy Project, Inc.
2020 Pennsylvania Ave., NW #163
Washington, DC 20006
Phone: 202-599-0466
Fax: 929-777-8428

Counsel for the Protect Democracy Project, Inc.

 Case 1:17-cv-01000-CKK Document 26 Filed 08/30/18 Page 2 of 12

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................................................... ii

INTRODUCTION ........................................................................................................................................... 1
RESPONSE TO NSA’S STATEMENT OF MATERIAL FACTS ......................................................... 2
ARGUMENT..................................................................................................................................................... 2
I. Congress Did Not Exempt the NSA from FOIA. ......................................................................... 2
II. The NSA’s Declaration Does Not Plausibly or Logically Explain How Evidence of an
Unsolicited Request from the President to Publicly Undermine the FBI’s Ongoing
Investigation Constitutes a “Function” or “Activity” of the NSA. .............................................. 4
III. Any Legitimate Interest in Nondisclosure Can Be Satisfied by Allowing the NSA to
Invoke Exemptions Over Specific Portions of the Documents. .................................................. 7
CONCLUSION ................................................................................................................................................. 8

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INTRODUCTION

This case concerns serious and troubling accusations against the President of the United States:

that he attempted to use the National Security Agency (“NSA”) for his own personal benefit to

publicly undermine the ongoing investigation by the Federal Bureau of Investigation (“FBI”) into

alleged collusion between Russia and the Trump campaign. The President’s improper request of the

NSA is consistent with other known activities of the President during the same period, including his

multiple requests to then-FBI Director Comey for his personal loyalty and to drop any investigation

into the President’s former National Security Adviser, Michael Flynn. According to multiple news

reports by major media outlets, NSA officials rebuffed the request and documented the President’s

unusual and inappropriate contact.

The NSA attempts to recast this remarkable series of events as if it were nothing more than a

routine intelligence briefing of administration officials. That is simply not true. Indeed, the only reason

that the requested records would exist (as there is every reason to believe they do) is that the President

was asking the NSA to do something so outside its normal functions that the NSA Director rebuffed

the President of the United States and senior NSA officials felt compelled to document this staggering

breach of protocol. That cannot be described in any logical or plausible sense as an “activity” or

“function” of the NSA. Therefore, Section 6 of the National Security Agency Act is simply irrelevant.

On these incredibly unique and troubling facts, the public has a right to know whether senior

government officials are engaged in misconduct. Indeed, that right is one of the very reasons FOIA

exists. See, e.g., Bartko v. United States Dep’t of Justice, No. 16-5333, ___ F.3d ___, 2018 WL 3673936, at

*10 (D.C. Cir. Aug. 3, 2018) (“FOIA, at its core, operates on the assumption that ‘it is for the public

to know and then to judge.’ . . . That is how FOIA helps ‘to hold the governors accountable to the

governed.’” (citations omitted) (rejecting Glomar assertion)); see also, e.g., SAI v. Transportation Sec.

Admin., 315 F. Supp. 3d 218 (D.D.C. 2018) (deliberative process privilege “disappears altogether when

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there is any reason to believe government misconduct occurred” (quoting In re Sealed Case, 121 F.3d

729, 746 (D.C. Cir. 1997)); cf. also Trentadue v. Integrity Comm., 501 F.3d 1215, 1234 (10th Cir. 2007)

(“The public interest in learning of a government employee’s misconduct increases as one moves up

an agency’s hierarchical ladder.”).

This Court should not permit the NSA to hide the very existence of such documents behind

a declaration that is so boilerplate and vague as to be meaningless in its application to this case.

RESPONSE TO NSA’S STATEMENT OF MATERIAL FACTS

Protect Democracy’s Motion for Summary Judgment contained a statement of material facts

as to which there is no dispute, which is hereby incorporated by reference in opposition to the NSA’s

motion. NSA’s opposition does not contest any of those factual assertions or assert that there are any

disputes that would prohibit this Court from entering summary judgment. See LCvR 7(h)(1).

With regard to NSA’s Statement of Material Facts, Protect Democracy does not dispute any

of the factual assertions contained in Paragraphs 1-11 or 13 of that Statement. And while Protect

Democracy does contest the accuracy of the assertions in Paragraphs 12 and 14-26, it does not contend

that these disagreements are material factual disputes that render summary judgment on the Glomar

issue premature. Rather, those paragraphs contain the NSA’s legal contentions about the validity of its

Glomar assertion, which can and should be rejected at the summary judgment stage for the reasons

explained below.

ARGUMENT

I. Congress Did Not Exempt the NSA from FOIA.

The NSA’s brief implies that Congress enacted Section 6 of the National Security Agency Act,

50 U.S.C. § 3605, in order to place all of the Agency’s documents off limits from FOIA requesters.

But it did not. Rather, Section 6 has both logical and legal limits and must be “construed with

sensitivity to the ‘hazard(s) that Congress foresaw.’” Founding Church of Scientology of Washington, D.C.,

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Inc. v. Nat’l Sec. Agency, 610 F.2d 824, 829 (D.C. Cir. 1979) (quoting Am. Jewish Cong. v. Kreps, 574 F.2d

624, 629 (D.C. Cir. 1978)).

Acknowledging some logical limit to Section 6 is essential. As one district court presciently

observed, if “section 6 is taken to its logical conclusion, it would allow the federal government to

conceal information regarding blatantly illegal or unconstitutional activities simply by . . . claiming they

implicated information about the NSA’s functions.” Terkel v. AT&T Corp., 441 F.Supp.2d 899, 905

(N.D. Ill. 2006). That is precisely what the NSA is attempting to do here.

In order to give meaning to the limits that Congress intended for Section 6, courts must be

vigilant in resisting overbroad definitions of the “activities” and “functions” of the NSA. If the agency

is permitted to stretch that term to its theoretical limits—as the NSA attempts to do in this case—

Section 6 would completely swallow FOIA’s rule of disclosure. That is not what Congress intended,

and this Court should make clear that even a broad withholding statute does not apply in every case.

The most appropriate interpretation of Section 6’s scope is actually found in the declaration

of Steven Thompson, the NSA’s Chief of Policy, Information, Performance, and Exports. As the

Agency explained there, the purpose of Section 6 of the NSA Act was to protect the Agency’s sources

and methods of intelligence gathering. See Thompson Declaration ¶ 11; see also Founding Church of

Scientology, 610 F.2d at 829 n.46 (declining to decide whether the term “activities” of NSA includes

anything more than sources and methods). There are times, of course, when revealing the mere fact

of a communication between the NSA and another person or entity might well reveal those sources,

methods, or targets. But this case presents no such risk.

The White House and the NSA have repeatedly and publicly disclosed their interest in the

Russia investigation. Indeed, the President seems obsessed with it. See, e.g., Chris Cillizza, 14 tweets that

show Donald Trump’s Russia obsession is only growing worse, CNN.com (May 29, 2018). The only thing that

would be revealed from requiring the Agency to confirm or deny the mere existence of the records at

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issue in this case is whether the President attempted to lean on the NSA to undermine the

investigation. That additional fact cannot reveal anything about the NSA’s sources or methods of

intelligence gathering, rendering Section 6 irrelevant to this particular dispute.

For these very same reasons, the NSA is wrong to suggest that this case is controlled by Elec.

Privacy Info. Ctr. v. National Security Agency, 678 F.3d 926 (D.C. Cir. 2012) (hereinafter, “EPIC”) or People

for the Amer. Way Found. v. NSA/Cent. Sec. Serv., 462 F. Supp. 2d 21 (D.D.C. 2006). Each of those cases

concerned specific intelligence programs run by the NSA—in EPIC, the NSA’s “Information

Assurance” program, and in People for the American Way, the NSA’s “Terrorist Surveillance Program.”

Here, by contrast, there is no specific NSA program or activity at issue; simply a question of whether

the President was trying to use the agency’s imprimatur for his own improper purposes.

Indeed, even People for the American Way recognizes that “Section 6 is not without limits.” 462

F. Supp. 2d at 31. The NSA conveniently ignores that aspect of the case when it repeatedly makes its

boilerplate assertions that any discussions with other government officials about any issue whatsoever

are “activities” of the NSA. See, e.g., Thompson Declaration, ¶¶ 25, 28, 30. That kind of limitless view

of Section 6’s scope would render FOIA virtually irrelevant to the NSA—something Congress could

have done but chose not to do.

II. The NSA’s Declaration Does Not Plausibly or Logically Explain How Evidence of
an Unsolicited Request from the President to Publicly Undermine the FBI’s
Ongoing Investigation Constitutes a “Function” or “Activity” of the NSA.

The Agency’s declaration offers this Court little more than boilerplate slippery slope

arguments that have little, if anything, to do with the facts of this case. It should be rejected as an

illogical and implausible explanation for the Agency’s attempt to sustain its Glomar response.

Most of the Declaration’s contents are simply irrelevant to this case. Mr. Thompson goes on

for many pages about the NSA’s mission of deriving and analyzing signals intelligence (“SIGINT”)

and communications intelligence (“COMINT”). See, e.g., Thompson Declaration ¶¶ 5-11, 30-31, 33.

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His Declaration speaks in ominous terms about the need to protect those sources of intelligence from

unwarranted intrusion, and the harms to national security that might result from requiring the Agency,

in this case, to simply confirm the existence of the requested documents. See, e.g., id. ¶¶ 25, 31-33.

The fundamental problem for the NSA is that its Glomar assertion has nothing to do with

protecting these kinds of intelligence sources and methods. The FOIA request at issue here seeks only

a very narrow set of documents: internal NSA memo(s) written to memorialize an inappropriate phone

call from the President of the United States, who attempted to use the NSA for his personal benefit

to undermine any suggestion of improper collusion between the Trump campaign and Russia. The

mere fact of communication between the White House and the NSA cannot reveal anything about

the Agency’s SIGINT and COMINT capabilities. Thus, all references to SIGINT and COMINT

intelligence channels are just noise, meant to distract the public and this Court from the core issues in

this case and make the consequences of ruling for Protect Democracy look severe.

Similarly, the NSA errs in alleging that disclosing even the existence of the memo would reveal

“that NSA possessed intelligence concerning a specific topic,” and/or “expose particulars concerning

NSA’s activities and/or capabilities, the identity of those who may or not be potential (or actual)

surveillance targets, and/or whether or not the Agency possesses foreign intelligence on a particular

topic.” Motion for Summary Judgment, p. 11 (quoting Thompson Decl. ¶¶ 31-32). Protect

Democracy’s request for documents showing that the President improperly asked the NSA to

undermine an FBI investigation does not seek any such information from the Agency. And, of course,

if any responsive records happen to contain such details, the NSA can attempt to assert substantive

claims of exemption over that specific information and make appropriate redactions (which Protect

Democracy may or may not choose to challenge, depending on the credibility and plausibility of the

Agency’s response).

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In reality, what this case boils down to the NSA’s generalized concern that an adverse ruling

on these particular facts will require the Agency, in all future cases, to disclose “whether or not it

advised or spoke to a specific governmental principal on a stated day, concerning a particular topic.”

Thompson Decl. ¶ 25. But that kind of boilerplate response “is not even in the ballpark” of what is

required to sustain a valid Glomar assertion. Bartko, ___ F.3d ___, 2018 WL 3673936, at *6; cf. also

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 436 (2006) (“The Government’s

argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for

you, I’ll have to make one for everybody, so no exceptions.”).

Moreover, that abstract question is not presented by this case. Protect Democracy does not

argue that anyone can FOIA the NSA to determine if it communicated with the “Secretary of State in

the days leading up to a treaty signing with a particular country or to the Secretary of Defense in

advance of a specific military operation.” Id. ¶ 31. In such a case the NSA could of course argue that

confirmation of the existence of such undisclosed intelligence interests might credibly reveal

something not known about the Agency’s functions or activities.

But that concern is not present here. The NSA itself has already disclosed that it first

discovered Russian attempts to influence the election and passed that information along to their “FBI

teammates.” PDP’s SUMF (ECF No. 23-2) ¶ 7 & Exh. 2, p. 114. Moreover, as noted, the President

has broadcast to the world his keen interest in the Russia investigation, which he has taken to calling

a “Rigged Witch Hunt” of late. See Julie Hirschfeld Davis, Trump Tells Sessions to ‘Stop This Rigged Witch

Hunt Right Now,’ NY Times (Aug. 1, 2018). And the NSA “freely acknowledge[s]” that it regularly

speaks to the President about intelligence issues. Thompson Decl. ¶ 31. Moreover, even during this

litigation, NSA Director Rogers continued to testify publicly about the NSA’s involvement in the

preparation of the 2017 Intelligence Community Assessment declaring that Russia interfered with the

2016 Presidential Election. See, e.g., Open Hearing on Worldwide Threats: Hearing Before U.S. Senate Select

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Committee on Intelligence (Feb. 13, 2018) (“Admiral Rogers: I participated in that 2017 work. I stood by

it then and I stand by it now, and I agree with Director Pompeo: This is not going to change or

stop.”).1 Admiral Rogers also testified publicly that he raised concerns to the Director of National

Intelligence about politicization of the selective declassification of the Nunes Memo and portions of

a Congressional report about Russian oligarchs. Id. Given these numerous public statements by both

the NSA and the President about the Russia investigation, it would reveal nothing that is not already

obvious about the NSA’ intelligence interests even if the Agency confirmed the President placed a call

to the NSA about the Russia investigation.

Generalized fears about disclosing intelligence interests in other, hypothetical circumstances

do not transform this into a case that threatens to reveal anything about the NSA’s own activities or

functions. After all, if the requested documents exist, it is only because the NSA leaders viewed the

President’s request as so inappropriate and outside the Agency’s mission that they felt compelled to

document it (as former FBI Director Comey did of similarly inappropriate requests during that same

time period, see PDP SUMF ¶¶ 13-26). Indeed, these facts are so egregious and unusual that if the

Court rules Glomar is not applicable, the Government surely will argue in the next hypothetical case

seeking access to records of a previously undisclosed intelligence interest that any adverse ruling here is

easily distinguishable and does not control that alternative fact pattern. Simply put, there is no need

to give Section 6 an implausibly broad reading in this case in order to protect the Agency’s ability to

give it a reasonable reading in another, hypothetical future case.

III. Any Legitimate Interest in Nondisclosure Can Be Satisfied by Allowing the NSA to
Invoke Exemptions Over Specific Portions of the Documents.

The NSA did not face a binary choice: assert Glomar or release the records in full. Instead of

hiding behind an inappropriate invocation of the Glomar doctrine, the Agency could—and should—

1
 Available at https://www.intelligence.senate.gov/hearings/open-hearing-worldwide-threats-
hearing-1# (last visited Aug. 27, 2018). 

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have confirmed or denied the existence of responsive records and, assuming they do exist, asserted

any exemptions that would justify withholding the documents in whole or part. If any of the actual

contents of the documents contain SIGINT or COMINT intelligence, or pertain to undisclosed

intelligence interests, the Agency could of course redact those portions in reliance on Section 6 of the

NSA Act and Exemption 3 of FOIA (and any other applicable FOIA exemptions). If it does so, FOIA

also would compel the Agency to release any reasonably segregable non-exempt portions of the

records to Protect Democracy. See 5 U.S.C. § 552(b) (“Any reasonably segregable portion of a record

shall be provided to any person requesting such record after deletion of the portions which are exempt

under this subsection.”). (And, of course, Protect Democracy could choose to challenge those

withholdings if the NSA’s claimed exemptions appear inappropriate).

In arguing for this approach, Protect Democracy is not contending that an agency must redact

records actually subject to a valid Glomar assertion, as NSA misleadingly contends. See NSA Motion

for Summary Judgment, pp. 24-25. Rather, Protect Democracy simply contends that the normal

procedures that apply in a FOIA case provide more than adequate protection to any legitimate

intelligence interest the Agency may have in these documents.

CONCLUSION

For the foregoing reasons, this Court should reject the NSA’s reliance on the Glomar doctrine

and should grant Protect Democracy’s Motion for Summary Judgment.

Dated: August 30, 2018

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Respectfully submitted,

/s/ Michael P. Abate

Michael P. Abate
(DDC Bar No. MD28077)
(DC Bar No. 1023343)
Kaplan Johnson Abate & Bird LLP
710 W. Main St., 4th Floor
Louisville, KY 40202
Phone: (502) 540-8280
Fax: (502) 540-8282

Benjamin L. Berwick (MA Bar No. 679207)

Counsel
The Protect Democracy Project, Inc.
2020 Pennsylvania Ave., NW #163
Washington, DC 20006
Phone: 202-599-0466
Fax: 929-777-8428

Counsel for Plaintiff

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CERTIFICATE OF SERVICE

I hereby certify that on August 30, 2018, I filed the foregoing through the Court’s CM/ECF

system, which will serve all counsel of record.

s/Michael P. Abate
Counsel for Plaintiff