The Russian interference with the 2016 election has been called the most efficient information operation ever waged by the Russian government. Former director of National Intelligence James Clapper described it as “multi-faceted.” Leaders in Congress and the intelligence community have already warned that the Russians will target future U.S. elections.
But unlike the unified response to the 9-11 attack which led to the establishment of a non-partisan Commission, public hearings, an extensive investigation and a comprehensive report, Washington has moved haltingly, caught between partisan politics, disorganization, and a reluctance to acknowledge the ongoing threat to democracy in the U.S. and around the world. The Trump administration is in the middle of a media battle of Nixonian proportions. Instead of supporting investigation of allegations of wrongdoing and working to prevent future attacks, the White House tweets back at critics as if winning a round in a news cycle makes the country any safer.
{mosads}Harvard Law School professor Jack Goldsmith recently argued that Congress is responding as it should, that oversight mechanisms are working as they should, and that “Trump is being held accountable.” Tell that to Rep. Adam Schiff (D-Calif.), who learned from CNN that House Intelligence Committee Chairman Devin Nunes (R-Calif.) had provided information related to the committee to the White House before it was presented to the committee.
There are other problems as well. Attorney General Jeff Sessions has been unwilling to appoint a special prosecutor. The effort to establish an independent commission has stalled. There are still too many briefings taking place behind closed doors. Too many members, sitting on the intelligence committees, are unable to disclose to the public what they have learned. And when they emerge from closed door briefings, every indication is that we have not heard the full story.
Without a national commission and a comprehensive public report, there is a real risk that the outcome of the greatest attack on the United States since 9-11 will be a classified report for Congress with little information for the public. That is not a plan to strengthen democratic institutions.
Public disclosure needs to be broadened
The public has a right to know the details when a foreign government attempts to influence the outcome of a U.S. presidential election. The public has aright to know the extent of the risk and how the government agencies, tasked with defending the nation, responded. And the public has a right to know what steps have been taken to prevent future attacks.
Our votes and our participation in the democratic process are at issue. Congress should continue to pursue oversight. Congress should establish an independent commission and a special prosecutor should be appointed. But there is more to be to be done. The Electronic Privacy Information Center (EPIC) is proceeding with several expedited Freedom of Information Act cases, and several related FOIA matters, to uncover answers.
In EPIC v. FBI, we are seeking the public release of documents concerning the FBI’s response to cyber attacks on US political parties. The FBI has lead authority to protect US organizations from foreign adversaries, yet too little is known about how the bureau responded to the mounting evidence of Russian attacks. What were the bureau’s policies for notifying U.S. organizations of foreign cyber attack and were they followed when the bureau learned that both political parties were the targets of Russian interference? What prosecutions have resulted from the FBI’s investigation of the attack?
In EPIC v. ODNI, we are seeking the release of the complete report prepared by the intelligence community on the extent of Russian interference. The unclassified version, released in early January, raised more questions than it answered. The Russians infiltrated voter databases. Did they also hack voting machines? The Russians hacked the DNC donor lists and email accounts. Did they collaborate with WikiLeaks in releasing the Podesta emails? The complete report should be made available.
There is a lot of controversy as to whether Obama “tapped” Trump Tower. EPIC is seeking the release of all FISA warrants for Trump Tower. The Justice Department could acknowledge the number and duration of such orders without compromising individual investigations.
Regarding the hastily cancelled House oversight hearing, EPIC has also sought the prompt release of records concerning witnesses who were scheduled to testify. Specifically, EPIC has asked the Justice Department for the records of former Assistant Attorney Sally Yates concerning the Russian investigation. We have made similar request to the CIA for the records of the former CIA Director John Brennan, and the records at ODNI of former DNI James Clapper.
The agencies are likely to resist these public record requests. There are several exemptions they could assert. EPIC will litigate such claims, as we have in the past, as the cases move forward. But it would be in the national interest for the federal agencies to release as much material to the public as they can. Further secrecy will do little to restore public confidence over the integrity of our election system. And responses to formal requests made under FOIA laws are the best way to inform the public while avoiding charges of unlawful leaking.
With upcoming elections in Europe and ongoing concerns about the vulnerability of democratic institutions to cyber attack, now is the time for the federal agencies tasked with defending the country to be open and accountable with the American public.
Marc Rotenberg is president of the nonprofit Electronic Privacy Information Center (EPIC) in Washington, D.C. He testified before the 9-11 Commission on “Security and Liberty: Protecting Privacy, Preventing Terrorism.” EPIC maintains an extensive FOIA docket.
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