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RLB Letterhead 2-7-14 White Paper Re: Complaint against OIP Director Melanie Pustay for “defrauding” President Obama by failing to docket and process a December 3, 2013 expedited FOIA request for two classified OLC Memos that affect the President’s 2014 NSA TSP reforms This is a 2-7-13 White Paper in support of a Complaint against OIP Director Melanie Pustay for “defrauding” President Obama by failing to docket and process a December 3, 2013 expedited FOIA request for two classified OLC Memos that affect the President’s 2014 NSA TSP reforms. The December 3, 2013 FOIA request sought the following documents: 1. May 24, 1984 classified Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Surveillance Act of 1979 of AAG of the OLC Theodore Olson, the “OLC Olson FISA Memo” 2. May 6, 2004 reclassified Memorandum for the Attorney General: Review of the Legality of the (redacted b1,b3) Program, of AAG of the OLC Jack Goldsmith, the “OLC Goldsmith FISA Memo” The Robert v Holz, Robert v National Archives, 1 Fed. Appx. 85 (2d Cir. 2001), Robert v DOJ, 2001 WL 34077473 (EDNY), 26 Fed. Appx. 87 (2d Cir. 2002), Robert VII v DOJ, 2005 U.S. Dist. LEXIS 39616, 193 Fed. Appx. 8 (2d Cir. 2006), cert. den. 127 S.Ct. 1133 (2007), Robert VIII v DOJ, HHS, and SSA, 439 Fed. Appx 32 (2d Cir. 2011), cert. den. 132 S. Ct. 1549 (2012), Robert II v CIA and DOJ plaintiff complains that Office of Information and Privacy (OIP) Director Melane Pustay is “defrauding” President Obama by failing to docket and process a December 3, 2013 Office of Legal Counsel (OLC) FOIA request for 1984 and 2004 Top Secret OLC FISA Memos that President Obama has an Article II Commander in Chief duty to read as he considers his 2014 reforms re the storage of 1982-2014 E.O. 12333 NSA TSP data banks. This December 3, 2013 FOIA White Paper (WP) is in support of the OLC FOIA request, provides background information as to the 2014 importance of these Top Secret 1984 and 2014 OLC FISA opinions. http://snowflake5391.net/12_3_13_FISA_MEMOS.pdf. The FOIA requester assumes that the FOIA requests will be denied because the documents remain as classified documents. However, in the process of making that decision OIP Director Pustay will be able to determine for herself whether the complainant’s assertion is correct: OIP Director Pustay is working in concert with other USG officials who have “defrauded” President Obama in order to provide President Obama with a “plausible deniability” defense to the serial impeachable violations of § 413 (a) of the National Security Act, the “exclusivity provision” of the FISA of 1978, the Posse Comitatus Act of 1878 limitations on military domestic law enforcement, and the Social Security Act. See the 10-3-13 Robert Review Group Comments §§ A-D, P-Y. http://snowflake5391.net/review_group_comments.pdf The complainant asserts that time is of the essence. On January 17, 2014, President Obama tasked AG Holder to work with the intelligence community and provide the President with alternative approaches for storing metadata data by March 28, 2014. Upon information and belief, AG Holder does not know of these two Top Secret OLC FISA Memos. However, OIP Pustay knows whether AG Holder knows of these Top Secret OLC FISA memos. Hence, the importance of IG Horowitz docketing the complaint and deciding whether to conduct a preliminary investigation. This will result in IG Horowitz reading the two Top Secret OLC FISA Memos and making sure that President Obama has an opportunity to read these OLC opinions. 1 A. The complaint against OIP Director Pustay that she is “defrauding” President Obama The complainant is asserting that OIP Director Pustay knows that President Obama does not know that the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the March 18, 2011 reclassified Top Secret May 6, 2004 “OLC Goldsmith FISA Memo” apply to the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks that have never been subject to Article III review. He is asserting that OIP Director Pustay is “defrauding” President Obama because she knows that docketing this OLC FOIA request will lead to a FOIA action that will lead to President Obama reading these two OLC Memos. OIP Director Pustay knows that if President Obama reads these OLC Memos, then he will learn that USG officials and attorneys have intentionally not informed President Obama that his January 17, 2014 NSA TSP reforms will not affect the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks transferred into the Utah Data Center, and the continuation of warrantless domestic content data mining that is based on the Top Secret 1984 and March 18, 2011 reclassified 2004 OLC FISA Memos that President Obama had never read. See 12-3-13 OLC FOIA WP §§ A-D, P, U, Y. The complainant’s assertion that OIP Director Pustay has “defrauded” President Obama is based on an application of 18 U.S.C. § 371, Conspiracy to commit offense or to defraud United States, as interpreted by Independent Counsel (IC) Lawrence Walsh in the March 21, 1991 "Memoranda on Criminal Liability of Former President Reagan and of Vice President Bush" Memorandum. IC Walsh alleged that AG Meese, CIA Director Casey, and DOD Secretary Weinberger had “defrauded” President Reagan by withholding the fact that their Article II interpretations of the Boland Amendment and other statutes had never been reviewed by Article III Judges, and they had learned that their interpretations were incorrect. IC Walsh determined that President Reagan and VP Bush had no Iran-Contras criminal liability because they had reasonably relied upon the accuracy of AG Meese’s Top Secret Article II legal opinions that upon Article I and Article II review were incorrect legal interpretations. See “Iran Contra at 25, Reagan and Bush ‘Criminal Liability” Evaluations” Document 1-Parts 1-4 the National Security Archive posted at its http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB365/index.htm. 18 U.S.C. § 371, Conspiracy to commit offense or to defraud United States provides: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. Emphasis added. The complainant asserts that OIP Director Pustay knows whether the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the March 18, 2011 reclassified Top Secret May 6, 2004 “OLC Goldsmith FISA Memo” are the “FISA secret law” that determined that the “exclusivity provision” of the FISA of 1978 was an “unconstitutional” encroachment on the President’s “inherent” authority” to conduct domestic surveillance of U.S. citizens to protect the nation from terrorists. The complainant asserts that OIP Director Pustay knows that President Obama, a Constitutional Law Professor, has not read the 1984 and 2004 OLC FISA opinions. As a result, OIP Director Pustay knows that she is “defrauding” President Obama. See 10-3-13 Robert Review Group Comments §§ A, H, P, S. http://snowflake5391.net/review_group_comments.pdf 2 B. OIP Director Pustay knows that AAG of the National Security Division Wainstein’s Top Secret November 20, 2007 Memo to AG Mukasey cited to the May 24, 1984 Top Secret “OLC Olson FISA Memo” and explained a Fourth Amendment “constitutionally seized” theory that was applied to the 1982-2007 Top Secret “FISA exempt” NSA TSP data banks OIP Director Pustay knows that one of the Edward Snowden 2013 leaked documents was the November 20, 2007 Memorandum for the Attorney General from AAG of the National Security Division Kenneth Wainstein to AG Michael Mukasey (November 7, 2007-January 20, 2009) with a copy to OLC Principal DAAG Stephen Bradbury. This document quoted from the Top Secret May 24, 1984, AAG of the OLC Theodore Olson OLC FISA Memo: Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1979 Memorandum, that established a Fourth Amendment warrantless domestic electronic surveillance “constitutionally seized” theory that applied to the 1982-2007 Top Secret “FISA exempt” NSA TSP data banks. AAG of the National Security Division Wainstein explains the Fourth Amendment standard that continued to apply in 2007 to the content of the 1982-2007 E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks that had never been reviewed by the FISC: As an initial matter, we note that the analysis of information legally within the possession of the Government is likely neither a “search” nor a “seizure” within the meaning of the Fourth Amendment. See, e.g. Jabara v Webster, 691 F. 2d 272, 277-279 (6th Cir 1982) (holding that the disclosure of information by an agency that lawfully possessed it to another agency does not implicate the Fourth Amendment); Memorandum for the Attorney General from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re Constitutionality of Certain National Security Electronic Surveillance Activities Not covered Under the Foreign Intelligence Surveillance Act of 1979, at 59 (May 24 1984) (“Olson Memorandum” (Traditional Fourth Amendment analysis holds that once evidence is constitutionally seized, its dissemination or subsequent use raises no additional Fourth Amendment question.” As noted, we assume for the purpose of this memorandum that the NSA has lawfully acquired the information it wishes to analyze. Nevertheless, the Olson Memorandum went on to consider the limits on the subsequent use of information when assessing the constitutionality of NSA’s surveillance activities under the Fourth Amendment.
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