In May 2024, Empower Oversight sued the Department of Justice (DOJ) over a multi-year secretive surveillance program of Congress members and congressional staff, asking a court to unseal nondisclosure orders (NDOs, aka, gag orders) issued to third parties.
You can read the complaint here.
US District Court for the District of Columbia Chief Judge James E. Boasberg ruled to unseal part two of these documents, but the organization believes that “the unsealed portion did not answer the key questions about whether DOJ was honest with the court in the applications and whether it flagged the serious constitutional separation of powers issues.”
This is why Empower Oversight decided to appeal Judge Boasberg’s decision and continue to seek the unsealing of DOJ’s applications for NDOs (that should show what arguments this government department used to justify its actions in this case).
In December 2024, the DOJ Office of the Inspector General (OIG) found that the sealed NDO applications “relied on general assertions about the need for nondisclosure rather than on case-specific justifications” – which Empower Oversight hopes will help make its appeal successful.
More: Report: DOJ Asked Court To Hide Surveillance of Congressional Investigators
But the OIG review also uncovered that the DOJ did not tell the court the subpoenas targeted Congress members and staff, which the non-profit says represents “key context that could have prompted a more meaningful review by the court.”
The appeal to the Circuit Court now “contends that Judge Boasberg wrongly denied an initial request to unseal the NDO applications,” the group announced, adding that it “argues that these documents are judicial records, subject to the public’s common-law and First Amendment rights of access, not grand jury materials shielded by Federal Rule of Criminal Procedure 6(e).”
Empower Oversight is dedicated to enhancing independent oversight of government and corporate wrongdoing, and the non-profit’s founder Jason Foster was among those subjected to the DOJ’s collection of personal phone and email activity logs.
This was happening over a period of five years, while Foster was targeted during the time he served as head of the Senate Judiciary Committee’s Oversight and Investigations unit, under chairman Charles Grassley.
The DOJ was able to issue the subpoenas to Google, allowing it access to the data while also securing secret gag orders that prevented the company from informing Congress members and staff that they were targeted in this way.
It is the DOJ’s continued secrecy regarding the reasons why this type of surveillance was carried out, that prompted Empower Oversight’s legal challenge. The organization believes there is “no logical explanation,” all the more so since the communications included those of congressional attorneys who carried out oversight – of the DOJ itself.
In Foster’s case, considering that he, according to Empower Oversight, “regularly communicated with whistleblowers” – it meant that not only communications but also confidentiality may have been compromised.
