‘Should the required assessment not be undertaken, we are prepared to file suit in an appropriate federal district court seeking to compel compliance … Please advise us no later than February 10, 2017 if an assessment will be undertaken’ – Jan. 10 Certified Letter 

Letter Follows on Heels of FOIA Lawsuit Seeking Records Relating to Office of the Director of National Intelligence Decision Not to Conduct a Damage Assessment

(Washington DC) — Judicial Watch announced today that it has taken a two-pronged legal action to force the Office of the Director of National Intelligence (ODNI) to conduct a full-scale damage assessment of Hillary Clinton’s use of an “unsecure, unofficial email account” and to explain why it failed to do so when information about the former secretary of state’s use of a private email server to transmit classified information first surfaced.

The demand for a damage assessment was contained in a January 10 certified letter sent to Director of National Intelligence Director James Clapper, Secretary of State John Kerry, and Director of National Intelligence counterintelligence executive William Evanina. The request for an explanation of why the Office of the Director of National Intelligence had failed to act earlier was part of a Freedom of Information Act (FOIA) lawsuit filed on January 11. The lawsuit was filed in the U.S. District Court for the District of Columbia (Judicial Watch v. Office of the Director of National Intelligence (No. 1:17-cv-00053)).

In the January 10 letter informing Clapper, Kerry, and Evanina that it is “prepared to file suit,” to force a damage assessment, Judicial Watch first cites an assessment by FBI Director James Comey revealing that 110 emails Clinton returned to the State Department contained “classified information,” while others contained “Top Secret,” “Secret,” and “Confidential” information. Judicial Watch then cites Intelligence Community Directives that require a damage assessment to be conducted when classified national intelligence is actually or suspected to have been compromised:

Intelligence Community Directive (“ICD”) No. 732 requires a damage assessment be conducted when there is “an actual or suspected unauthorized disclosure or compromise of classified national intelligence that may cause damage to U.S. national security” or “an actual or suspected loss, misuse, or unauthorized access to or modification of classified national intelligence that could adversely affect national security. The National Security Act of 1947, as amended, mandates that the Director of National Intelligence “shall protect intelligence sources and methods from unauthorized disc1osure” (50 U.S.C. § 3024(i)(1)), and ICD No. 700 requires that agency heads “within the Intelligence Community, including the Department of State, [p]rotect national intelligence and intelligence sources, methods, and activities from unauthorized disclosure.” Assessing the damage from actual or suspected, unauthorized disclosure plainly is an important part of protecting intelligence sources, methods, and activities.

Judicial Watch concludes the letter by putting the Office of the Director of National Intelligence and the State Department on notice:

A damage assessment such as the one required by ICD No. 732 is a quintessential type of record that Judicial Watch would request and obtain under FOIA, analyze, and then make available to the public in carrying out its educational mission.

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Should the required assessment not be undertaken, we are prepared to file suit in an appropriate federal district court seeking to compel compliance with ICD No. 732, so that we might seek and obtain access to the assessment…. Please advise us no later than February 10, 2017 if an assessment will be undertaken. If we do not hear from you by that date, we will assume no assessment will be undertaken and will act accordingly.

The Judicial Watch January 11 FOIA lawsuit was filed after the Office of the Director of National Intelligence failed to comply with a September 16, 2016, FOIA request seeking access to the following:

• All records that form the foundation for the decision by ODNI not to conduct an assessment of the damage to national security resulting from former Secretary of State Hillary Rodham Clinton sending and receiving classified national security information on a private email server.

• All records sent to or from ODNI officials regarding the decision not to conduct an assessment of the damage to national security resulting from former Secretary of State Hillary Clinton sending and receiving classified national security information on a private email server.

Two days before Judicial Watch filed its FOIA request, Joel D. Melstad, a spokesperson for the Office of the Director of National Intelligence, released a statement saying, “ODNI is not leading an [intelligence community]-wide damage assessment and is not aware of any individual IC element conducting such formal assessments.”  Melstad would not answer questions about the reasoning behind the decision.

“The Office of the Director of National Intelligence has a legal obligation to assess the damage done by Hillary Clinton’s illicit email practices,” said Judicial Watch President Tom Fitton.  “Therefore, the American people have a right to know the basis of that decision. And they have a right to expect the Office of the Director of National Intelligence to follow the law and determine how badly Mrs. Clinton’s actions compromised national security and put our nation at risk.”

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