This really shouldn’t be a big surprise to anyone. We had to assume the Obama administration records would be handled in the normal fashion.
Per the policy on presidential records, those from the Executive Office of the President (EOP), which include the records of the National Security Adviser and the National Security Council, are transferred to the formal custody of the national archivist, who typically arranges to maintain them at the presidential library. The records are exempted from FOIA requests for five years from the president’s last day in office.
The Obama administration began turning over its documents (including electronic files as well as hard copy and artifacts) in November 2016.
So no one is even on the hook to respond further to the Judicial Watch FOIA request for the Susan Rice “unmasking” records, which JW made to the NSC on 4 April.
It is an interesting question, in passing, why it took over two months for the NSC to come up with that response. It’s cut and dried, after all. It’s not like any thought had to go into it. For the next five years, FOIA-wise, the former Obama administration has a get-out-of-jail-free card.
JW did try to make the case that Susan Rice was acting in a capacity independent enough – beyond the scope of authority envisioned for her office – that she and the NSC could be considered a federal “agency,” as opposed to merely elements of the EOP. JW argued that if her unmasking operations, and the NSC’s complicity in them, were viewed in that light, the FOIA immunity afforded presidents would not apply. Asking for the unmasking records would be more like asking for something from the State Department, or the EPA.
That reasoning didn’t fly. The current administration, which made the response to JW’s FOIA request, conceivably has motive to look for a way to expose the Rice/NSC records to at least some level of publicity — but we can assume Trump’s people saw the unwisdom of setting such a precedent.
They also presumably have a different strategy for dealing with the Obama administration’s unmasking practices. The subpoenas issued by the House Intelligence Committee are a proper move in that strategy, although we don’t know yet what the outcome will be.
I do sympathize with JW’s urgent concern to goose the process along, but I also think the House’s involvement and leadership of the exposure process are salutary. The Obama unmaskings are an affront against the people, and the people’s representatives are the best jury for discovery and deliberation.
Looking at the records that relate to Susan Rice, while that might reveal some key information, is probably also not the best way to determine the extent of the previous administration’s unmasking activities. I came across the Conservative Treehouse post on this earlier, and want to reassure readers that archiving the Obama records doesn’t put useful information out of reach.
The records of high-level transactions among EOP personalities could yield some bombshells, to be sure. But in terms of identifying systematic abuse of the unmasking authority, the records we really want lie in the IT systems of the intelligence community. Those records aren’t “presidential records,” and aren’t subject to executive privilege. Only IT administrators can even read them.
But those are the records we need. Since the intelligence community began connecting users across 17 agencies in a common IC “Internet,” and began making the unmasked identities in raw, searchable data files accessible to users outside the bowels of NSA (circa 2015), the legal guarantees against improper access to those files have been auditable – via the records of IT transactions – but not enforceable a priori.
That procedural vulnerability, introduced by the intel community’s IT transformation over the last 5-6 years, is the key to understanding the extent and nature of the Obama administration’s unmasking adventures.
We’ll have more on that in a separate post later. In the meantime, don’t lose heart. The House Intelligence Committee subpoenas are the right way to get at the unmasking records of the end-users among Obama’s top officials. The important thing to understand is that those officials were just the tip of the iceberg. There’s probably nothing in the Presidential Daily Briefing that would give us insight into how unmasking was being used; the formal daily routine is just something Susan Rice invoked in her media interviews to imply that her unmasking requests were justified by national security. The real answers are to be found at a lower level.