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. See Id. In an abundance of caution, then, we analyze the constitutional issue on the assumption that the Fourth Amendment may apply even though the Government has already obtained the information lawfully. Id. p. n. 4. Underline added. http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB436/docs/EBB-017.pdf.

OIP Director Pustay knows the significance of his key sentence for any 2014 NSA TSP reforms:

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. Emphasis added.

3 OIP Director Pustay knows that NSA “subsequent use” of the content of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks, is premised on this content data having been “constitutionally seized” data. She knows that the issue of whether the content of the E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks had been “constitutionally seized” is a fact issue that had never been subject to Article III FISC or Supreme Court review.

OIP Director Pustay knows that on February 26, 2013, Justice Samuel Alito in Clapper v Amnesty, 568 U.S. ___ (2013), noted in dicta that AG Holder contended the government could legally conduct “FISA exempt” warrantless surveillance of U.S. citizens:

And, although we do not reach the question, the Government contends that it can conduct FISA-exempt human and technical surveillance programs that are governed by Executive Order 12333. See Exec. Order No. 12333, §§1.4, 2.1–2.5, 3 CFR 202, 210–212 (1981), reprinted as amended, note following 50 U. S. C. § 401, pp. 543, 547–548. Id. 14. Emphasis added.

OIP Director Pustay knows that AG Holder’s contention is based on the “FISA secret law” that is revealed on the May 24, 1984 Top Secret “OLC Olson FISA Memo” that explains why the E.O. 12333 “FISA exempt” NSA TSP data was “constitutionally seized” without any FISC Order. OIP Director Pustay knows that a facial reading of the “exclusivity provision” of the FISA requires a FISC Order prior to electronic surveillance of U.S. citizens’ telephones:

§ 2511. Interception and disclosure of wire, oral, or electronic communications prohibited

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted. Emphasis added.

OIP Director Pustay knows whether the May 24, 1984 Top Secret “OLC Olson FISA Memo” came to the legal conclusion that the E.O. 12333 “FISA exempt” NSA TSP “constitutional seizure” of the “dragnetted” warrantless content of U.S. citizens telephone calls, was based on the President’s Article II Commander in Chief “inherent authority” to conduct warrantless domestic surveillance of U.S. citizens in order to protect the nation from terrorists. If so, then the May 24, 1984 Top Secret “OLC Olson FISA Memo” explains whether the “exclusivity provision” of the FISA was an “unconstitutional” encroachment on the President’s unlimited Article II Commander in Chief authority to conduct warrantless surveillance of U.S. citizens. If so, then President Obama has a 2014 duty to read this Top Secret OLC FISA Memo.

4 C. OIP Director Pustay knows whether the 1984 and 2004 OLC opinion applied to the DOD TALON program whose data bases were transferred on September 17, 2007 to the FBI for which the DIA retained a copy that is subject to “FISA exempt” data mining

OIP Director Pustay knows whether the 1984 and 2004 OLC FISA opinions apply to the DOD TALON program whose data bases were transferred on September 17, 2007 to the FBI for which the DIA retained a copy that is subject to NSA “FISA exempt” data mining. She knows that if the TALON data banks included the content of the 1982-2007 E.O. 12333 Top Secret “FISA exempt” data banks that were determined to be “constitutionally seized” by the NSA, then these data banks continue in 2014 to be subject to domestic content data mining of “dragnetted” data banks. Hence, the importance of President Obama reading the 1984 and 2004 Top Secret OLC FISA Memos and learning whether they apply to the TALON data banks which include 1982-2007 E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks that are not subject to any Article I, Article II, or Article III review. See 10-3-13 Review Comments § L. On August 21, 2007, DOD Secretary Robert Gates, the 1991-1993 CIA Director, instructed then Under Secretary of Defense Intelligence Lt. General Clapper (2007-2010) to inform the public that 1) the TALON program was terminated, 2) TALON data would be forwarded to the FBI Director, and 3) the DOD would retain a copy of the collected data: DoD to Implement Interim Threat Reporting Procedures

DoD’s Counterintelligence Field Activity (CIFA) will close the TALON Reporting System effective Sept. 17, 2007, and maintain a record copy of the collected data in accordance with intelligence oversight requirements.

To ensure there is a mechanism in place to document and assess potential threats to DoD resources, the Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs will propose a system to streamline such threat reporting and better meet the Defense department’s needs.

In the interim, until this new reporting program is adopted, DoD components will send information concerning force protection threats to the Federal Bureau of Investigation’s Guardian reporting system. Emphasis added. http://www.defenselink.mil/releases/release.aspx?releaseid=11251. DNI Clapper knows how private companies had accessed the TALON data banks. After being the 1991-1995 DIA Director, DNI Director Clapper had worked for the private communications companies including Booz Allen & Hamilton from 1996-2001. As a result, he knows which “haystacks” data banks that Booz, Allen & Hamilton “leaker” Snowden had accessed. As the 2001-2007 Director of National Imagery and Mapping Agency, DNI Director Clapper knows how a private analyst can “go back in time” to 1982 by conducting time targeted domestic content surveillance of U.S. citizens by exponentially more powerful algorithms. If IG Horowitz dockets this complaint and conducts an investigation, then he will learn whether the President knows that DOD TALON data banks continue to exist and whether they include the “constitutionally seized” 1982-2007 E.O. 12333 Top Secret “FISA exempt” NSA TSP content data banks. If so, then IG Horowitz will understand the significance of OIP Director Pustay refusing to docket and process the FOIA request for these Top Secret OLC FISA Memos.

5 D. OIP Director Pustay knows that the Article II Top Secret “FISA secret law” of E.O. 12333 “FISA exempt” NSA TSP can be changed at any time without the knowledge of the Article I Congress or Article II President Obama or the Article III FISC

OIP Director Pustay knows that Article II Top Secret “FISA secret law” can be changed at any time without the knowledge of the Article I Congress or Article II President Obama or the Article III FISC. She knows that if in 2014 President Obama reads 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,” that the President could revoke or amend E.O. 12333 Top Secret “FISA exempt” NSA TSP. The complainant asserts that OIP Director Pustay has decided not to docket the December 3, 2013 OLC FOIA request in order to provide President Obama with an ongoing “plausible deniability” defense to the serial impeachable violation of the “exclusivity provision” of the FISA whenever DOD Cyber Commander-NSA Director General Keith Alexander data mines for content the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks transferred into the Utah Data Center. See 12-3-13 OLC WP §§ L-Q.

Former-NARA ISSO Director Leonard explained the dangers of an Article II “secret law” in his April 30, 2008 testimony to the Senate Judiciary Committee at the Secret Law and the Threat to Democratic and Accountable Government:

The ability of President’s authority to act unilaterally are defined by the willingness and ability of the Congress and the courts to constrain it. Of course, before the Congress or the courts can act to constrain Presidential claims to inherent unilateral powers, they must first be aware of those claims. Yet, a long recognized power of the President is to classify and thus restrict the dissemination of information in there interest of national security. The combination of these two powers of the President-that is, when the President lays claim to inherent powers to act unilaterally, but does so in secret—can equate to the very open-ended, non-circumscribed, executive authority that the Constitution’s framers sought to avoid in constructing a system of checks and balances. Added to this is the reality that the President is not irrevocably bound by his own Executive orders, and this administration claims that President can depart from the terms of an Executive Order without public notice. Thus, at least in theory, the President could authorize the classification of the OLC memo, even though to do so would violate the standards of his own Executive Order. Equally possible, the president could change his Executive Order governing secrecy, and do so in secret, all unbeknownst to the Congress and the courts. It is as if Lewis Carroll, George Orwell, and Franz Kafka jointly conspired to come up with ultimate recipe for unchecked executive power. Id. 8. Emphasis Added. . http://www.fas.org/sgp/congress/2008/law.html

If IG Horowitz dockets and investigates this complaint, then he will conclude that OIP Pustay knows that former-NARA ISSO Director Leonard’s analysis applies to the “FISA secret law” of the Top Secret OLC FISA Memos. “It is as if Lewis Carroll, George Orwell, and Franz Kafka jointly conspired to come up with ultimate recipe for unchecked executive power.” Id. 8

6 E. OIP Director Pustay knows that the legal analysis of the January 23, 2014 PCLOB Report re the 2006 statutory metadata program, would also apply to 1984 and 2004 Top Secret OLC FISA opinions of the 1982 E.O. 12333 Top Secret “FISA exempt” NSA TSP

On January 23, 2014, the Privacy and Civil Liberties Oversight Board (PCLOB), issued its Report on the Telephone Records Program Conducted Under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court. The complainant asserts that OIP Director Pustay knows the PCLOB’s legal analysis re the 2006 statutory metadata program, could also apply to the 1984 and 2004 Top Secret OLC FISA opinions of the 1982 E.O. 12333 Top Secret “FISA exempt” NSA TSP. As a result, she made the decision not to docket or process the December 3, 2013 FOIA request.

The PCLOB Report explained why the PCLOB believed that that the metadata program was illegal. “Ultimately, however, that effort represents an unsustainable attempt to shoehorn a pre-existing surveillance program into the text of a statute with which it is not compatible.” Savage, Watchdog Report Says N.S.A. Program Is Illegal and Should End, NY Times, 1-23-14.

The PCLOB made clear its Report was limited to Section 215 metadata program and did not address E.O. 12333 issues that would include the Top Secret “FISA exempt” NSA TSP:

Our suggestions here focus on FISA authorities and are also relevant to National Security Letters. Our recommendations do not address reporting of activities under Executive Order 12333. It has become clear in recent months that E.O. 12333 collection poses important new questions in the age of globalized communications networks, but the Board has not yet attempted to address those issues. Id. 205, n. 687. Emphasis added http://www.pclob.gov/SiteAssets/Pages/default/PCLOB-Report-on-the- Telephone-Records-Program.pdf

The plaintiff’s assertion is based on the fact that OIP Director Pustay has been making FOIA decisions re the complainant’s 1985-2011 FOIA requests with the knowledge that Robert’s allegation that he had been the illegal target of the 1982 E.O. 12333 Top Secret “FISA exempt” NSA TSP, was true. She knows of the litigation interplay between the complainant’s FOIA request for the Robert VII v DOJ “FISC Robert” documents that were withheld pursuant to the OIPR Counsel James Baker’s March 1, 2004 ratification of the CIA’s use of FOIA Exemption 1 and the “Glomar Response” defense, and the Robert VIII v DOJ, HHS, and SSA “Robert v Holz” documents that continue to be withheld by AG Holder pursuant to FOIA Exemption 5. See 11- 30-11 Robert VIII Petition §§ A-C, E, H. http://snowflake5391.net/Robert8vDOJpetition1.pdf.

OIP Director Pustay knows that the January 23, 2013 PCLOB Report provides a legitimacy and urgency to the complainant’s December 3, 2013 FOIA request for AAG of the OLC Theodore Olson’s May 24, 1984 classified Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Surveillance Act of 1979 and the March 18, 2011 reclassified 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. She knows that these OLC opinions are the legal basis for the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP that has never been reviewed by the FISC.

7 The PCLOB’s January 23, 2014 Report highlighted the danger to U.S. citizens if there is NSA abuse of U.S. citizens data that is collected and stored in the NSA data banks:

With its powers of compulsion and criminal prosecution, the government poses unique threats to privacy when it collects data on its own citizens. Government collection of personal information on such a massive scale also courts the ever-present danger of “mission creep.” An even more compelling danger is that personal information collected by the government will be misused to harass, blackmail, or intimidate, or to single out for scrutiny particular individuals or groups. To be clear, the Board has seen no evidence suggesting that anything of the sort is occurring at the NSA and the agency’s incidents of non-compliance with the rules approved by the FISC have generally involved unintentional misuse. Yet, while the danger of abuse may seem remote, given historical abuse of personal information by the government during the twentieth century, the risk is more than merely theoretical. Id. 12. Emphasis added.

OIP Director Pustay knows that the complainant has throughout his 1985-2014 FOIA litigation, asserted that he had been targeted for NSA TSP scrutiny. She knows that this was based upon his challenge to the HHS “nonacquiescence” policy of HHS General Counsel del Real, CIA Director Casey’s CIA domestic covered agent, that was used to fund E.O. 12333 Top Secret DIA-CIA domestic “special activities” that included the “immaculate construction” and maintenance of the E.O. 12333 Top Secret “FISA exempt” NSA TSP that was in serial impeachable violation of § 413 (a) of the National Security Act, the “exclusionary provision” of the FISA of 1878, the Posse Comitatus Act of 1878 (PCA) limitations on the military domestic law enforcement, and the Social Security Act. See 10-3-13 Review Group Comments §§ A,R.

The PCLOB’s January 23, 2014 Report explained the importance of NSA storing the metadata that the FBI informed the FISC was necessary for the FBI’s subsequent investigations:

As noted above, Section 215 requires any application to include “a statement of facts showing that there are reasonable grounds to believe” that the records sought “are relevant to an authorized investigation” conducted in accordance with certain criteria. To show that this requirement was met, the government argued: “All of the business records to be collected here are relevant to FBI investigations . . . because the NSA can effectively conduct metadata analysis only if it has the data in bulk.” Echoing the arguments made in its 2004 Internet metadata application, the government stated that “although investigators do not know exactly where the terrorists’ communications are hiding in the billions of telephone calls flowing through the United States today, we do know that they are there, and if we archive the data now, we will be able to use it in a targeted way to find the terrorists tomorrow.” Id. 43. Underline emphasis added.

OIP Director Pustay knows that the Robert VII plaintiff asserts that the content of his telephone conversations with his aged, blind, and disabled clients are stored in the E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks. This is a fact the President does not know.

8 The PCLOB’s January 23, 2014 Report discusses the fact that the NSA violated the FISC metadata Order because NSA officials misinterpreted the application to archived NSA data:

In sum, the government stated, the NSA’s violations resulted not from an intent to mislead or disobey the court’s orders, but rather from misunderstanding among the personnel involved with running the program and describing it to the FISA court about exactly how certain aspects of the program operated. As explained in a supporting declaration filed by NSA Director Keith Alexander, “it appears there was never a complete understanding among the key personnel” who reviewed the agency’s reports to the court “regarding what each individual meant by the terminology used” in the reports. “Furthermore, from a technical standpoint, there was no single person who had a complete technical understanding of the [program’s] system architecture.” Id. 48. Emphasis added.

The PCLOB’s January 23, 2014 Report noted FISC Judge Reggie B. Walton’s decision re the NSA’s violations of the extant FISC metadata order:

He further wrote that the agency’s professed misinterpretation of the court’s orders — viewing their restrictions as applying only to telephone records that had been “archived” in the agency’s databases — “strains credulity.” As Judge Walton put it: “It is difficult to imagine why the Court would intend the applicability of the RAS requirement — a critical component of the procedures proposed by the government and adopted by the Court — to turn on whether or not the data being accessed has been ‘archived’ by the NSA in a particular database at the time of access.” Such an “illogical interpretation,” Judge Walton continued, “renders compliance with the RAS requirement merely optional.” Id. 49. Emphasis added.

OIP Director Pustay knows that the complainant argued throughout the 2004-2012 Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA litigation that the 1982-2012 NSA Directors, including NSA Director General Alexander (2005-), had data mined the 1982-2012 E.O. 12333 Top Secret “FISA exempt” archived NSA TSP data banks without the knowledge of the Article I “Gang of Eight”, Article II Presidents Reagan, Bush, Clinton, Bush, and Clinton, and the Article III FISC and Supreme Court. Hence, the importance of President Obama reading 1984 and 2004 Top Secret OLC FISA Memos to learn whether they are the legal basis for NSA Directors content data mining the 1982-2014 Top Secret “FISA exempt” NSA TSP “haystacks” data banks that have been transferred into the Utah Data Center. See 10-3-13 Comments § S.

The PCLOB’s January 23, 2014 Report based its statutory argument on the fact that Congress intended that telephone companies provide data to the FBI, not to the NSA:

Third, instead of compelling telephone companies to turn over records already in their possession, the program operates by placing those companies under a continuing obligation to furnish newly generated calling records on a daily basis. This is an approach lacking foundation in the statute and one that is inconsistent with FISA as a whole, because

9 it circumvents another provision that governs (and limits) the prospective collection of the same type of information. Fourth, the statute permits only the FBI to obtain items for use in its own investigations. It does not authorize the NSA to collect anything. Id. 57-58. Emphasis added.

OIP Director Pustay knows that the complainant is asserting that the FOIA requested 1984 and 2004 Top Secret OLC FISA memos reveal whether the AAGs of the OLC have determined that the “exclusivity provision” of the FISA is an “unconstitutional” encroachment on the President’s Article II Commander in Chief “inherent authority” duty to conduct domestic surveillance of U.S. citizens to protect the nation from terrorists. She knows that the complainant is asserting that DNI Clapper, the 1991-1995 DIA Director and 2007-2011 DOD Under Secretary of Intelligence, knows whether the DOD archived TALON data banks included the archived 1982-2007 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystack” data banks that are subject the NSA Director’s warrantless domestic content data mining of the “constitutionally seized” data based on the legal authority of the Top Secret 1984 and 2004 OLC FISA Memos that have never been reviewed by the “Gang of Eight” or the FISC.

The PCLOB’s January 23, 2014 Report analysis of the NSA’s interpretation of the relevancy standard can be applied to all of the NSA TSP “haystacks” of archived data bases:

In the Board’s view, this interpretation of the statute is circular and deprives the word “relevant” of any interpretive value. All records become relevant to an investigation, under this reasoning, because the government has developed an investigative tool that functions by collecting all records to enable later searching. The implication of this reasoning is that if the government develops an effective means of searching through everything in order to find something, then everything becomes relevant to its investigations. The word “relevant” becomes limited only by the government’s technological capacity to ingest information and sift through it efficiently. Id. 62. Italics not added, but underlining added.

OIP Director Pustay knows that the complainant has been asserting that his Robert VII v DOJ “FISC Robert” documents, including the content of his client phone calls, have been archived in the E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks as part of the NSA TSP “haystacks” that have never been destroyed. She knows that the gist of the complainant’s Bivens argument is that his “FISC Robert” data was not “constitutionally seized,” but was seized in violation of the plaintiff’s First and Fourth Amendment rights. See 11-30-11 Robert VII Petition Issue II, 10-3-13 Review Comments §§ D, S and 12-3-13 OLC FOIA WP §§ A, X, Y.

The PCLOB’s January 23, 2014 Report drills down on the fact issue that the metadata is transferred to the NSA and that the FBI does not have access to the data:

Under the bulk telephone records program, however, the FBI does not receive any records in response to the FISA court’s orders. While FBI officials sign every application seeking to renew the program, the calling records produced in response to the court’s orders are never “made available to the Federal Bureau of Investigation” or “received by the Federal Bureau

10 of Investigation,” as called for by the statute. Instead, the FISA court’s orders specifically direct telephone companies to “produce to NSA” their calling records — thwarting congressional intentions regarding the role each agency is to play in counterterrorism efforts that involve the collection of information within the United States about Americans.

In compliance with the FISA court’s orders, telephone companies that are subject to this program transmit their calling records to the NSA. The records are not delivered to the FBI and are never passed on to the FBI by the NSA. Instead, the NSA stores the records in its own databases, conducts its own analysis of them, and provides reports to various federal agencies — including but not limited to the FBI — with information about telephone communications that “the NSA concludes have counterterrorism value.” While these reports are based on information derived from the calling records, the records themselves stay with the NSA. Indeed, the NSA is ordered by the FISA court to “store and process” those records “in repositories within secure networks under NSA’s control.”

What’s more, the NSA is prohibited from sharing with the FBI information that it derives from the calling records it obtains, except under conditions outlined in the FISA court’s orders. Among those conditions, the NSA may share information with the FBI that contains information about U.S. persons only if designated NSA officials (not the FBI agents who are conducting the investigations to which the records are supposed to be relevant) determine that the information “is in fact related to counterterrorism information and that it is necessary to understand the counterterrorism information or assess its importance.” The NSA must even file monthly reports with the FISA court listing every instance during the previous month in which the NSA shared such information with any entity, including the FBI.

The fact that the NSA, not the FBI, obtains the records produced causes the program to depart from the statute in another, related manner. Section 215 requires that any records obtained through a FISA court order be handled according to “specific minimization procedures” adopted by the Attorney General to govern the “retention and dissemination by the Federal Bureau of Investigation” of the items or information it receives. Before granting an application under Section 215, a FISA court judge must find that the application provides “an enumeration of the minimization procedures adopted by the Attorney General . . . that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the Order requested in such application.”

Because the FBI does not receive anything from the telephone companies, it is impossible for the FISA court to make this finding. The court’s orders therefore finesse the statutory language by stating that “the Court finds . [t]he application includes an enumeration of the minimization procedures the

11 government proposes to follow with regard to the tangible things sought.” The orders then set forth detailed minimization procedures for the NSA to follow with regard to the calling records it obtains. As a result, despite Congress’ clear direction that one agency’s minimization procedures must be followed (the FBI’s), the current process substitutes another agency’s procedures (the NSA’s).

In sum, the bulk telephone records program violates the requirement that records produced in response to a Section 215 order are to be obtained by the FBI, not the NSA, and that their retention and dissemination is to be governed by rules approved specifically for the FBI’s handling of those items. Those requirements are integral to the overall design of the statute, under which records can be obtained only when they are relevant to a specific FBI investigation. As the operation of this program illustrates, allowing the NSA to acquire calling records in bulk and subject them to the tools it possesses for mass data analysis significantly expands the nature and scope of the activity authorized by Section 215. Id. 88-90. Italics not added, but underlines added.

OIP Director Pustay know that the PCLOB’s description of the meta data program being contrary to a facial reading of the FISA of 1978, bolsters the complainant’s decades long argument he had been the illegal target of the E.O. 12333 Top Secret “FISA exempt” NSA TSP. She also knows that if the PCLOB’s description of the collection and storage of the NSA TSP data is accurate and the same process was applied in the 1980s, then NSA military officers’ violated the Posse Comitatus Act of 1878 when they provided Robert data to HHS General Counsel del Real for domestic law enforcement purposes during the 1984-1987 “Fraud Against the Government” investigation that is revealed in the Robert VIII v DOJ, HHS, and SSA “Robert v Holz” documents. See 11-30-11 Robert VII Petition Statement of the Case §§ A-C, E.

If IG Horowitz dockets this complaint against OIP Director Pustay and conducts a preliminary investigation, then he will read the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the March 18, 2011 reclassified May 6, 2004 “OLC Goldsmith FISA Memo.” He will learn whether these documents are the legal basis for the 2014 determination the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” data was “constitutionally seized” by the 1982-2014 NSA Directors. If IG Horowitz then applies the PCLOB’s January 23, 2014 Report analysis re the 2006-2014 FISC approved metadata program, he can determine for himself whether there had been a serial impeachable violation of the “exclusivity provision” of the FISA whenever a NSA Director authorized his analysts to content data mine 1982-2014 archived E.O.12333 Top Secret “FISA exempt” NSA TSP data banks without a FISC Order.

The complainant respectfully suggests that if IG Horowitz dockets this complaint and conducts a preliminary investigation, that he make queries to the Intelligence Community (IC) General Counsels whether the TALON data banks transferred to the FBI on September 17, 2007, included the 1982-2007 E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks. If so, then the IG should query the IC General Counsels whether the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the March 18, 2011 reclassified May 6, 2004 “OLC Goldsmith FISA Memo” apply to the content of the “constitutionally seized” archived 1982-2014 NSA TSP “FISA exempt” data banks. If so, then President Obama should know these facts.

12 F. OIP Director Pustay knows whether the General Counsels for DNI Director Clapper, NSA Director General Alexander, DOD Secretary Hagel, CIA Director Brennan, and FBI Director Comey can access the May 24, 1984 and March 18, 2011 reclassified May 6, 2004 Top Secret OLC FISA Memos in the custody of Principal Deputy AAG of the OLC Krass

OIP Director Pustay knows whether the Intelligence Community General Counsels for DNI Director Clapper, NSA Director General Alexander, DOD Secretary Hagel, CIA Director Brennan, and FBI Director Comey can access the Top Secret May 24, 1984 and March 18, 2011 reclassified Top Secret May 6, 2004 OLC FISA Memos. This is an important “Past is Prologue” IC General Counsels’ access fact issue because the Top Secret OLC FISA Memos have been in the custody of Principal Deputy AAG of the OLC Krass, President Obama’s November 12, 2013 CIA General Counsel Nominee. See 12-3-13 OLC FOIA WP §§ V, X (8).

DNI James Clapper’s ODNI General Counsel Robert Litt (2009-2013) has been General Counsel for DNI Directors Admiral Ret. Dennis Blair (2009-2010) and Lt. General Ret. James Clapper (2011-). He was a 1994-1997 DAAG of the Criminal Division and 1997-1999 Principal Associate AG. He was placed on at Notice of the Posse Comitatus Act issue at § F of the Robert VIII v DOJ, HHS and SSA plaintiff’s March 18, 2011 Interagency Security Classification Appeals Panel (ISCAP) WP seeking declassification of the “NCTC TSP and PSP data banks access guidelines” documents. http://snowflake5391.net/3_18_11_WP_ISCAPDNI.pdf He was placed on Notice at § I that ISCAP Member Matthew Olsen, who is now the NCTC Director, could “walk back the cat” as to the details of the data mining of the E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks. See 12-3-13 OLC FOIA WP § X (5) and X (6).

NSA Director General Keith Alexander’s NSA General Counsel is Rajesh De (2011-) who succeeded NSA General Counsel Olsen (2010-2011). He had been a 2003-2004 attorney for the 9/11 Commission, Principal DAAG of the Office of Legal Policy (2009-2011) and President Obama’s White House Staff Secretary (2011) who read all classified documents sent to the President. He authored the August 9, 2013 White paper that explained the meta data program and which cited to the July 27, 1993 USSID 18 “minimization” guidelines that have been used by the 1993-2013 NSA Directors when the they conducted NSA TSP content data mining. http://cryptome.org/2013/08/doj-13-0809.pdf. See 12-3-13 OLC FOIA WP § X (7).

DOD Secretary Chuck Hagel’s DOD General Counsel Stephen Preston succeeded Jeh Johnson (2009-2013) who is now the Department of Homeland Security Secretary. He was the CIA General Counsel (2009-2013) for CIA Directors Leon Panetta (2009-2011), David Petraeus (2011-2012), and John Brennan (2013-). He was the 1993-1995 DOD Principal Deputy Counsel when DNI Director Clapper was the DIA Director (1991-1995). He was the 1995-1998 Civil Division DAAG who was a Gordon v. Shalala, 55 F.3d 101 (2d Cir. 1995), cert. den, 517 U.S. 1103 (1996) supervising attorney. He knows whether Jackson v. Schweiker, 683 F. 2d 1076 (7th Cir. 1982), “nonacquiescence” policy funds were, as alleged by the Robert v Holz plaintiff, the funding source for the “immaculate construction” and maintenance of the 1982-1996 E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks. See 12-3-13 OLC FOIA WP § X (4).

CIA Director Brennan’s Acting CIA General Counsel will not provide the Robert II v CIA and DOJ plaintiff with his/her name. He/she has made the 2014 decision to continue to reject the Robert II v CIA and DOJ plaintiff’s quiet settlement offer. See § K below.

13 FBI Director Comey’s FBI General Counsel is James Baker. FBI Director Comey appointed him on January 15, 2014 to replace FBI General Counsel Andrew Weissmann (2011- 2013) who had resigned. He began as a 1996 Office of Intelligence Policy and Review (OIPR) staff attorney. In May, 2001, he became the Acting OIPR Counsel. In December, 2006, CIA Director Hayden awarded him the George H.W. Bush Award for Excellence in Counterterrorism and on January 19, 2007 AG Gonzales award him the Edmund J. Randolph Award. These are the highest CIA and DOJ awards. He was AG Holder’s 2009-2011 Associate DAG. See discussion of OIPR Baker’s 2004 decision to report to FISC Presiding Judge Kollar-Kotelly his belief that the NSA was violating the FISA of 1978 by procedures that were used to conduct warrantless domestic content surveillance of U.S. citizens in the 12-3-13 OLC FOIA WP § U pp. 33-39.

OIP Director Pustay knows why FBI General Counsel Baker, as the OIPR Counsel, had made the March 1, 2004 decision to ratify the CIA’s use of FOIA Exemption 1 and the “Glomar Response” to withhold the Robert v Holz plaintiff’s FOIA request for the “FISC Robert” documents. She knows whether OIPR Counsel Baker knew on March 1, 2004 of AAG of the OLC Olson’s May 24, 1984 Top Secret Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Surveillance Act of 1979 Memo. This is an important “Past is Prologue” OIPR Baker mens rea time line fact because of the infamous March 10, 2004 confrontation between then-WH Counsel Alberto Gonzales and AG Ashcroft, DAG Comey, and FBI Director Mueller in AG Ashcroft’s hospital room.

OIP Director Pustay knows whether OIPR Counsel Baker had known on March 1, 2004 that FBI Director Mueller had access to the 1982-2004 E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks that were administered by NSA Director General Michael Hayden (1999- 2005). This too is an important OIPR Baker mens rea time line fact because on May 1, 2003 FBI Director Mueller had hired NSA Director Hayden’s Chief of Signals Intelligence Chief Maureen Baginski as the first FBI Director of the new FBI Office of Intelligence. Investigative reporter Tim Weiner reported in Enemies: A History of the FBI, that FBI Director Mueller made her the Director of the new FBI Office and FBI liaison for the NSA TSP Stellar Wind program:

Mueller created an Office of Intelligence at the FBI out of thin air and hired the chief of signals intelligence at the National Security Agency as its director. She was the most powerful woman in the American intelligence community. Almost no one at the FBI had ever heard of her.

Maureen Baginski was a career NSA office who had started out as a Russian analyst and risen to command authority. At the turn of the century, when the NSA found itself unable to keep pace with the explosion of encrypted information on the Internet, and the agency’s supercomputers sputtered and crashed, General Hayden had put Baginski in charge of fixing things. Her SIGINT directorate was the biggest single component of the United States espionage establishment; she commanded a budget that rivaled the FBI’s $4 billion and a workforce bigger than the FBI nearly eleven thousand agents. She also had run Stellar Wind since its inception. Mueller made her his right hand. She would be by his side at every crucial meeting. He gave her an office down the hall from his and told her to go to work. Id. e-book 8339. Emphasis Added.

14 OIP Director Pustay knows that FBI General Counsel Baker knows whether FBI Director Comey had known as DAG Comey (December, 2003-August, 2005), that FBI Director Mueller knew that NSA Director General Hayden conducted warrantless domestic content data mining the E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks that was not reported to “Gang of Eight” in violation of § 413 (a) of the National Security Act. This too is an important OIPR Counsel Baker mens rea time line fact because FBI Director Comey’s Chief of Staff and Senior Counselor is Chuck Rosenberg who has his own FBI institutional memory because he had been FBI Director Mueller’s Counsel Rosenberg (2002-2003) who became the Counselor to AG John Ashcroft (2003-2004) and then Chief of Staff for DAG Comey (2004-2005).

OIP Director Pustay knows that FBI General Counsel Baker knows whether FBI Director Comey had known as DAG Comey, of AAG of the OLC Goldsmith’s May 6, 2004 Memorandum for the Attorney General: Review of the Legality of the (redacted b1,b3) Program. https://webspace.utexas.edu/rmc2289/OLC%2054.FINAL.PDF. If so, then FBI Director Comey and FBI General Counsel Baker know whether the March 18, 2011 reclassified Top Secret May 6, 2004 OLC FISA Memo was based on the May 24, 1984 “OLC Olson FISA Memo.”

If OIP Director Pustay knows that FBI General Counsel Baker as OIPR Counsel Baker had not known of the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” then she knows that OIPR Counsel Baker’s October 1, 2004 “corrected” Robert VII v DOJ Declaration was FRCP 11 signed without OIPR Counsel Baker knowing of the “FISA secret law” that is explained in the 1984 and 2004 Top Secret OLC FISA memos. http://www.snowflake5391.net/baker.pdf. However, if OIP Director Pustay knows that FBI General Counsel Baker as OIPR Counsel Baker did know of the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” then she knows that OIPR Counsel Baker knew that AG Gonzales had implemented the Barrett v. United States, 798 F. 2d 565 (2d Cir. 1986), “nonacquiescence” policy in the April 3, 2006 Second Circuit letter-Brief. He knew AG Gonzales intentionally withheld material facts from the Second Circuit to deceive the Second Circuit. “Finally, acceptance of the view urged by the federal appellants would result in a blanket grant of absolute immunity to government lawyers acting to prevent exposure of the government in liability.” Id. 573 (2d Cir. 1986). Emphasis Added. http://www.snowflake5391.net/RobertvDOJbrief.pdf. See §§ I-K below.

If OIP Pustay knows that OIPR Counsel Baker had known that AG Gonzales (2005- 2008) had withheld the material fact of the existence of the “FISA secret law” from Judge Garaufis the Second Circuit, and the Supreme Court, then this is the Chambers v Nasco, 111 S. Ct. 2123 (1991) “fraud upon the court” issue. “It is a wrong against the institutions set up to protect and safeguard the public.” Id. 2132. This issue was raised at pp. 24-25 in the Robert VII v DOJ November 20, 2006 Petition for a writ of certiorari for which SG Clement (2005-2008) did not file a Brief in opposition. http://www.snowflake5391.net/petitionrobertvdoj.pdf.

Therefore, if IG Horowitz dockets this complaint and conducts a preliminary investigation, then the IG should contact all of the Intelligence Community General Counsels to learn who knew what and when as to the existence of the Top Secret May 24, 1984 and May 6, 2004 OLC FISA Memos. That investigation could begin with FBI General Counsel Baker because he knows why OIP Pustay made her decisions to withhold the DOJ FOIA requested Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA documents. See §§ G, H below.

15 G. Facts OIP Director Pustay knew about the May 24, 1984 Top Secret “OLC Olson FISA Memo” when she made her decision not to docket December 3, 2013 FOIA request

The following are “Past is Prologue” 1980s facts that OIP Director Pustay knew when she made her decision not to docket or process the December 3, 2013 FOIA request. The complainant places IG Horowitz on Notice of these facts because of the complainant’s assertion that that USG officials and attorneys are continuing in February, 2014 to “defraud” President Obama. They continue not to inform President Obama of the ongoing 2014 serial impeachable violations of federal laws for which the President has a 2014 § 413 (b) of the National Security Act “shall” duty to file a “corrective action” plan to remedy the illegal actions of the intelligence community. See 2-22-13 OGIS FBI WP § C and 12-3-13 OLC FOIA WP §§ A-F.

1. On August 8, 1984, the Second Circuit decided United States v Duggan, 743 F. 2d 59 (2d Cir. 1984) and approved AG William Smith’s implementation of the FISA of 1978. AG Smith (1981-1985) and EDNY U.S. Attorney Raymond Dearie (1982-1986) did not inform Distict Court Judge Charles Sifton or the Second Circuit of the “FISA secret law” of the 1982-1984 E.O. 12333 Top Secret “FISA exempt” NSA TSP that is explained in AAG of the OLC Olson’s Top Secret May 24, 1984 Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Surveillance Act of 1979 Memo. See 10-3-13 Review Group Comments § D.

2. In December, 1984, HHS General Counsel Juan del Real initiated the “Fraud Against the Government” investigation of Robert seeking to incarcerate the attorney challenging HHS “nonacquiescence” policies that included the 1982 Jackson v. Schweiker, 683 F. 2d 1076 (7th Cir. 1982), “nonacquiescence” policy that had been ratified by AAG of the OLC Theodore Olson and AAG of the Civil Division Richard Willard. OIP Director Pustay knows that Robert’s almost incredible allegation is true: HHH General Counsel del Real-IMC Chief of Staff del Real was CIA Director Casey’s 1982-1986 E.O. 12333 Top Secret domestic CIA covered agent tasked with securing unaudited HHS funds to pay for the Top Secret CIA-DIA domestic “special activities” that were conducted at IMC and the NSA which could not be funded with classified OMB Budget funds because of the violation of § 413 (a) of the National Security Act. See 7-27-10 Robert VIII WP §§ P-U, Z, AA. http://snowflake5391.net/7_27_10_RobertVIII.pdf

3. The June 19, 1985, Supreme Court Mitchell v Forsyth, 105 S.Ct. 2806 (1985), decision rejected AG Meese’s argument that AG Mitchell had absolute immunity to conduct warrantless domestic surveillance of U.S. citizens to protect the nation. “We conclude that the Attorney General is not absolutely immune from suit for damages arising out of his allegedly unconstitutional conduct in performing his national security functions.” Id. 2811. OIP Director Pustay knows that a 1985 Mitchell v Forsyth “nonacquiescence” policy decision was made because AG Meese did not terminate the 1982-1985 E.O. 12333 Top Secret “FISA exempt” NSA TSP that targeted Robert during the Robert “Fraud Against the Government” investigation. See 10-3-13 Review Group Comments § J, 12-3-13 OLC FOIA WP § J and §§ O, P below.

4. The July 25, 1985 House Judiciary Committee testimony of DAAG Caroline Kuhl that the HHS “nonacquiescence” policy had ended on June 3, 1985, that was false. OIP Director Pustay knew that Jackson “nonacquiescence” policy continued to be implemented in the Ruppert v Heckler litigation that continued after July 25, 1985. See 7-27-10 Robert VIII WP §§ P-U.

16 5. The September 4, 1985, appearance of the “Washington” attorney at the Ruppert v Heckler Chambers conference with Judge Altimari who defended the Jackson “nonacquiescence” policy. OIP Director Pustay knows whether the “Washington” attorney was AAG of the Civil Division Willard. See 11-30-11 Robert VIII Petition Statement of the Case §§ C, D, F.

6. The November 18, 1985, filing of the Robert v Holz complaint seeking HHS General Counsel Juan del Real’s “Fraud Against the Government” investigation of Robert documents. OIP Director Pustay knows that the 1985-1988 Robert v Holz case file notes and e-mails reveal whether EDNY U.S. Attorney Dearie had made Judge Wexler the “handmaiden” of AG Meese, CIA Director Casey, and HHS General Counsel del Real. “Under no circumstances should the Judiciary become the handmaiden of the Executive.” Doe, et. al. v Mukasey, Mueller, and Caproni, 549 F 3d 861, 870 (2d Cir. 2008). See 10-3-13 Review Comments §§ R, S.

7. The March 28, 1986, memo AAG of the Civil Division Willard sent to US government attorneys and FBI Director Judge Webster explaining the state of the law as to Personal Liability of Federal Officials: The Bivens Problem, after the Mitchell v Forsyth decision. “A decision on professional liability insurance is personal and I am attaching a copy of a brochure and application should you wish to explore the matter further.” Willard, at. 2. National Archives Files of Richard Willard 1985-1988 Accession 060-90-220, Box 12 Folder: Correspondence to Other Division and DOJ Components. http://www.archives.gov/news/samuel-alito/accession-060-90- 220/Acc060-90-220-box12-Correspondence.pdf. OIP Director Pustay knows that the legal basis for the 1985-2014 Mitchell v Forsyth “nonacquiescence” policy was the May 24, 1984 Top Secret “OLC Olson FISA Memo” that explained the “FISA secret law” that continues in 2014. 10-3-13 Review Group Comments § J and 12-3-13 OLC FOIA WP § J . 8. The July 31, 1986 Barrett v. United States, 798 F. 2d 565 (2d Cir. 1986), decision and the 1986-2013 Barrett “nonacquiescence” policy of DOJ attorneys intentionally withholding material facts from Article III Judges to protect national security secrets. “Finally, acceptance of the view urged by the federal appellants would result in a blanket grant of absolute immunity to government lawyers acting to prevent exposure of the government in liability.”Id. 573. Emphasis Added. See 11-30-11 Robert VIII Petition Statement of the Case §§ E, H. 9. The December, 1987 "(c)(3) exclusion" defense pursuant to AG Meese’s Attorney General’s Memorandum on the 1986 Amendments to the Freedom of Information Act, whereby DOJ attorneys file in camera ex parte Declarations that request that the Article III Judges mask their decisions to protect national security secrets. “Where an exclusion was not in fact employed, the in camera declaration will simply state that fact, together with an explanation to the judge of why the very act of its submission and consideration by the court was necessary to mask whether that is or is not the case.” http://www.usdoj.gov/04foia/86agmemo.htm. See 11-20-06 Robert VII v DOJ Petition Issue II, pp. 23-25. http://www.snowflake5391.net/petitionrobertvdoj.pdf.

The complainant asserts that these are now 2014 “Past is Prologue” 1980s facts. With 20/20 hindsight, OIP Director Pustay knows that the existence of the May 24, 1984 Top Secret “OLC Olson FISA Memo” is “smoking gun” evidence that AG Smith, AG Meese, AAG of the Civil Division Willard, and EDNY U.S. Attorney Dearie had withheld facts from Judge Sifton and the Second Circuit during the U.S. v Duggan litigation, and from Judge Wexler in Robert v Holz. He asserts that these are 1980s facts that President Obama should know in order to comply with his § 413 (b) of the National Security Act “shall” duty to file a “corrective action” plan.

17 H. Facts OIP Director Pustay knew about the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” when she made her decision not to docket December 3, 2013 FOIA request

The following are “Past is Prologue” 2003-2007 facts that OIP Director Pustay knew when she made her decision not to docket or process the December 3, 2013 FOIA request for the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” The complainant hereby places IG Horowitz on Notice of these facts because of the complainant’s assertion that that USG officials and attorneys are continuing in February, 2014 to “defraud” President Obama. They continue not to inform President Obama of the ongoing 2014 serial impeachable violations of federal laws for which the President has a 2014 § 413 (b) of the National Security Act of 1947 “shall” duty to file a “corrective action” plan to remedy the illegal actions of the intelligence community. See 10-3-13 Review Comments §§ C, P, R, S and 12-3-13 OLC FOIA WP § I, and § P below.

1. In November, 2003, SDNY U.S. Attorney James Comey (2002-2003) became AG Ashcroft’s DAG. He had been a SDNY AUSA from 1987-1993. He was a disciple of 1983-1988 SDNY U.S. Attorney Rudolph Giuliani, the 1981-1983 Associate AG, who refused to defend the HHS “nonacquiescence” policies of HHS General Counsel del Real (1981-1985) and AAG of the Civil Division Willard (1982-1987). This is an important DAG Comey time line fact because OIP Director Pustay knows whether the complainant’s assertion is true: HHS General Counsel del Real was a 1981-1985 E.O. 12333 Top Secret CIA domestic covered agent tasked to generate unaudited HHS funds to pay for E.O. 12333 Top Secret DIA-CIA domestic “special activities” at IMC and the NSA that could not be funded with classified OMB Budget funds because of the violation of the § 413 (a) of the National Security Act “Gang of Eight” Notification requirement.

2. On March 1, 2004, OIPR Counsel Baker read the “FISC Robert” documents that CIA Director Tenet’s FOIA Officer had withheld pursuant to FOIA exemption 1 and the “Glomar Response” defense. He learned whether the Robert v Holz plaintiff’s almost incredible assertion was true: He had been the illegal target of an illegal NSA TSP from which warrantless domestic content Robert data re his telephone conversations with his aged, blind, and disabled clients, was disseminated to HHS General Counsel del Real, as an E.O. 12333 Top Secret CIA domestic covered agent. This data was used in the Robert “Fraud Against the Government” investigation seeking his incarceration to end his litigation challenging the HHS “nonacquiescence” policy that generated unaudited HHS funds used to pay for the CIA-DIA domestic “special activities” at IMC and for the “immaculate construction” and maintenance of the E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks that could not be funded with classified OMB Budget funds. See 7-27-10 Robert VIII WP § AAA. http://snowflake5391.net/7_27_10_RobertVIII.pdf

3. On March 10, 2004, DAG James Comey, FBI Director Robert Mueller, and then-WH Counsel Alberto Gonzales had their infamous confrontation with then-WH Counsel Alberto Gonzales in AG Ashcroft’s hospital room re the recertification of the NSA TSP. Upon information and belief, OIPR Counsel Baker had informed DAG Comey of facts that he had learned on March 1, 2004 from reading the CIA classified “FISC Robert” documents which included the fact that there was zero evidence that Robert was a terrorist or an agent of foreign power. Upon information and belief, the “FISC Robert” facts were some of the facts that DAG Comey relied upon when he made his decision not to recertify the NSA TSP as the Acting AG. However, upon information and belief, on March 10, 2004, DAG Comey did not know about the E.O. 12333 Top Secret “FISA exempt” NSA TSP or the May 24, 1984 “OLC Olson FISA Memo.”

18 4. On May 6, 2004, the Top Secret “OLC Goldsmith FISA Memo” was issued. Upon information and belief, this Top Secret OLC FISA Memo was based on the May 24, 1984 Top Secret “OLC Olson FISA Memo.” Upon information and belief, DAG Comey never read the May 24, 1984 “OLC Olson FISA Memo” or the May 6, 2004 “OLC Goldsmith FISA Memo” that explained the legal basis for the 1982-2004 E.O. 12333 Top Secret “FISA exempt” NSA TSP.

5. On June 28, 2004, the NYS Appellate Division issued the In re Robert, 10 A.D. 3d 96 (2nd Dept. 2004) suspension decision. The “FISC Robert” documents reveal whether government attorneys had provided false facts to the Appellate Division Judges. The Robert v. Holz-Robert VIII v DOJ plaintiff has asserted that the false facts included the allegations that Robert had kited checks from a client’s escrow account in which five million dollars was posted that never existed. See 11-30-06 Robert VII v DOJ petition for writ of certiorari p. 10, n.2.

6. On July 15, 2004, FISC Chief Judge Colleen Kollar-Kotelly, issued an order approving the meta data program. It was reported that the FISC Chief did not inform any of other FISC Judges of this FISC Order. “None of the other judges on the court were apparently told about the programs or the new order; this was the first time one of the N.S.A.’s secret surveillance programs had come under the court’s oversight and authority.” Savage and Risen, New Leak Suggests Ashcroft Confrontation Was Over N.S.A. Program, NY Times 6-28-13. Upon information and belief, FBI Director Mueller’s application for the FISC metadata Order did not inform FISC Chief Judge Kollar-Kotelly of 1) the 1982 E.O. 12333 Top Secret “FISA exempt” NSA TSP conducted without the knowledge of the Article I “Gang of Eight” and Article III FISC, or 2) the May 24, 1984 Top Secret “OLC Olson FISA Memo” or 3) the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” that explained the legal basis for the E.O. 12333 Top Secret “FISA exempt” NSA TSP. See the July 15, 2004 redacted Order first released on November 19, 2013. http://www.dni.gov/files/documents/1118/CLEANEDPRTT%201.pdf

7. In the summer of 2004, OIPR Counsel Baker filed his original “uncorrected” Robert VII v DOJ Declaration that would subsequently be replaced with his October 1, 2004 “corrected” Robert VII v DOJ Declaration. Upon information and belief, OIPR Counsel Baker’s original “uncorrected” Declaration was filed after Chief Judge Kollar-Kotelly’s July 15, 2004 FISA Order. Upon information and belief, OIPR Baker Counsel Baker was ordered to withdraw the original Robert VII v DOJ Declaration because it revealed Top Secret DIA-CIA facts re the pre- 9/11 E.O. 12333 Top Secret “FISA Exempt” NSA TSP that had targeted Robert in violation of the “exclusionary provision” FISC of 1978 and the Posse Comitatus Act of 1978 limitation on military domestic law enforcement. See 10-3-13 Robert Review Group Comments §§ A, R.

8. On October 1, 2004, OIPR Counsel Baker filed his “corrected” Robert VII v DOJ Declaration which explained to Judge Garaufis why on March 1, 2004 he had ratified the CIA Director Tenet’s FOIA Officer’s decision to use FOIA Exemption 1 and the “Glomar Response” defense to withhold the 1980s “FISC Robert” documents. Upon information and belief, as of October 1, 2004 OIPR Counsel Baker did not know of 1) the 1982-2004 E.O. 12333 Top Secret “FISA exempt” NSA TSP, or 2) the May 24, 1984 Top Secret “OLC Olson FISA Memo” or 3) the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” See OIPR Counsel Baker’s October 1, 2004 Robert VII v DOJ Declaration posted at http://www.snowflake5391.net/baker.pdf. However, upon information and belief, the January 15, 2014 appointed FBI General Counsel Baker now knows all of these facts. See the 12-3-13 OLC WP § U pp. 33-39 and § P below.

19 9. In October, 2005, EDNY U.S Attorney Mauskopf (2002-2007) filed AG Gonzales’ in camera ex parte Robert VIII v DOJ, HHS, and SSA Motion with supporting Declaration that sought an injunction to prevent Robert from filing any new FOIA requests without a pre-clearance Order from Judge Garaufis. This is the document upon which Judge Garaufis based his December 9, 2005 decision upon which the December 14, 2005 Robert VIII v DOJ, HHS, and SSA Clerk’s Judgment was based. See 10-3-13 Robert Review Group Comments § E.

10. On December 9, 2005, Judge Garaufis issued his Robert VIII v DOJ, HHS, and SSA decision affirming the denial of the FOIA requests and enjoining Robert from filing a new FO|IA complaint without Judge Garaufis’ pre-clearance Order. Upon information and belief, AG Gonzales had filed in camera ex parte Declarations which the Declarants intentionally did not inform Judge Garaufis of the 1) the 1982-2004 E.O. 12333 Top Secret “FISA exempt” NSA TSP, or 2) the May 24, 1984 Top Secret “OLC Olson FISA Memo” or 3) the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” or 4) the July 15, 2004 FISC Order.

11. On December 14, 2005, the EDNY of Clerk entered the Robert VIII v DOJ, HHS, and SSA Clerk’s Judgment. Someone in the Office of the EDNY Clerk interpreted Judge Garaufis’ December 9, 2005 Robert injunction as requiring Robert to secure Judge Garaufis’ pre-clearance Order prior to filing any new FOIA requests. See 10-3-13 Review Group Comments § E.

12. On December 14, 2005, President Bush issued E.O. 13392, Improving Agency Disclosure of Information, which informed the public of President Bush’s new expansive FOIA policy. 70 FR 75373 (December 19, 2005). The President stated the FOIA policy as “(a) The effective functioning of our constitutional democracy depends upon the participation in public life of a citizenry that is well informed.” Emphasis added. Ironically, President Ford’s December 14, 2005 E.O. FOIA was issued on the same day as the Robert VII v DOJ Clerk’s Judgment that enjoined Robert from filing a FOIA request without Judge Garaufis’ pre-clearance Order.

13. On December 15, 2005, Stephen F. Hayes reported in Cheney: The Untold Story of America’s Most Powerful and Controversial Vice President, HarperCollins 2007, that he had a discussion with VP Cheney explaining that the NSA Terrorist Surveillance Program was based on the President’s Article II Commander in Chief “inherent authority” to implement national security matters that is not subject to Article I or Article III review. Hayes reported that VP Cheney cited to the November 18, 1987 Iran-contra Minority Report that he had authored:

If you want references to an obscure text, he said, go look at the minority views that were filed with Iran-contra committee, the Iran-contra report in about 1987. Nobody’s ever read them. Part of the argument in Iran-contra was whether or not the president had the authority to do what was done in the Reagan years. And those of us in the minority wrote minority views that we- actually authored by a guy working for me, one of my staff people, that I think are very good at laying out a robust review of the president’s prerogative with respect the conduct of especially foreign policy and national security matters. Id. 492. Emphasis added.

This is a key Congressman Cheney November 18, 1987 Minority Report fact if AAG of the OLC Theodore Olson’s May 24, 1984 OLC FISA memo explained the President’s Article II Commander in Chief authority to conduct E.O. 12333 “FISA exempt” domestic surveillance.

20 14. On December 16, 2005, the NY Times investigative reporters James Risen and Eric Lichtblau, reported on the post-9/11 NSA TSP that was being conducted without the knowledge of the Congress. “Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.” Bush Lets U.S. Spy on Callers Without Courts, NY Times, 12-16-05. Risen would later report that upon the requests of AGs Ashcroft and Gonzales the NY Times Editors had agreed to withhold Risen’s “scoop” from the public in order to protect this NSA TSP Top Secret during the 2004 Presidential election. This is a relevant fact if OIPR Baker knew this NY Times mens rea fact when he filed both his Robert VII v DOJ original “uncorrected” and his October 1, 2004 “corrected” Declaration. See § P below.

15. On December 17, 2005, President Bush delivered his Presidential Radio Address in response to the December 16, 2005 Risen and Licthblau NY Times article. President Bush informed the public of the post-9/11 NSA TSP. He did not inform the public of the pre-9/11 NSA TSP that was conducted by the 1982-2001 NSA Directors pursuant to 1982 E.O. 12333 Top Secret “FISA exempt” NSA TSP. This is a key “Past is Prologue” fact for President Obama to know when the President reviews AG Holder’s March, 2014 NSA storage report recommendation as where to store the pre-9/11 E.O. 12333 “FISA exempt” NSA TSP “haystacks” data banks that were never reported to the Article I “Gang of Eight” or to the Article III FISC. See §§ O, P below.

16. On December 22, 2005, AAG of the Office of Legislative Affairs William E. Moschella, on behalf of AG Gonzales, sent a letter to the “Gang of Eight” that provided four year retroactive § 413 (a) of the National Security Act Notification of the post-9/11 2002-2005 NSA TSP.http://www.fas.org/irp/agency/doj/fisa/doj122205.pdf. However, this § 413 (a) Notification letter did not provide the Gang of Eight” with Notification of the 1982-2001 pre-9/11 E.O. 12333 Top Secret “FISA Exempt” NSA TSP or the May 24, 1984 Top Secret “OLC Olson FISA Memo” or the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.”

17. On January 19, 2006, AG Gonzales sent a White Paper (WP) to the Senate Majority Leader, Legal Authorities Supporting the Activities of the National Security Agency Described by the President that explained the legal basis of the post-9/11 2001-2005 NSA TSP. It explained that the Youngstown Sheet and Tube Co. v Sawyer, 434 U.S. 937 (1952) “highest ebb” standard applied to the September 18, 2001 Authorization for Use of Military Force (AUMF). http://www.usdoj.gov/olc/2006/nsa-white-paper.pdf. AG Gonzales did not inform the Senate Majority Leader of 1) the 1982-2004 E.O. 12333 Top Secret “FISA exempt” NSA TSP, or 2) the May 24, 1984 Top Secret “OLC Olson FISA Memo” or 3) the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” or 4) the July 15, 2004 FISC Order. See 10-3-13 Comments § G.

18. On January 26, 2006, former-Associate Deputy Attorney General David Kris (2000-2003) sent a “whistleblower” memo to AG Gonzales’ Associate Counsel Courtney Elwood that in his legal opinion, the post-9/11 NSA PSP was in violation of the “exclusivity provision” of the FISA. “Congress intended to foreclose the President’s constitutional power to conduct foreign intelligence “electronic surveillance” without statutory authorization.” Id. 2. This is an important time line fact because he would become the 2009-2011 AAG of the National Security Division. He knew why the March 18, 2011 decision was made to reclassify the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” See 12-3-13 OLC FOIA WP §§ D, E, F and § P below.

21 19. On January 30, 2006, the Second Circuit held the Robert VII v DOJ oral argument. There was an extended oral argument that involved the appellant’s assertion that there should be a remand because Judge Garaufis had not reviewed in camera the “FISC Robert” documents withheld pursuant to the CIA’s use of FOIA exemption 1 and the “Glomar Response” defense.

20. On March 9, 2006, Second Circuit issued a Robert VII v DOJ Order that the parties file letter-Briefs informing the Court whether the appellant was a FISA “aggrieved person” by application of 50 U.S.C. § 1806 (f). This was an important Order because AG Gonzales was ordered to file a FRCP 11 signed letter-Brief that would be included in the Record in addition to OIPR Baker’s December 1, 2004 “corrected” Robert VII v DOJ Declaration. See the March 9, 2006 Order in the 11-20-06 Robert VII v DOJ petition for writ of certiorari Issue IV and Appendix C, A-87. http://www.snowflake5391.net/petitionrobertvdoj.pdf.

21. On April 3, 2006, EDNY U.S. Attorney Roslyn Mauskopf’s EDNY AUSA Kathleen Mahoney filed the FRCP 11 signed Robert VII v DOJ letter-Brief on behalf of AG Gonzales. She informed the Court that Robert was not a FISA “aggrieved person” by application of 50 U.S.C. § 1806 (f). AUSA Mahoney, on behalf of AG Gonzales, did not inform the Second Circuit why Robert had been the target of the pre-9/11 E.O. 12333 NSA-DIA-CIA Top Secret “FISA Exempt” NSA TSP or that FBI Director Judge Webster had zero evidence that Robert was a terrorist or an agent of a foreign power. The letter-Brief did not inform the Second Circuit of the May 24, 1984 Top Secret “OLC Olson FISA Memo” or the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” http://www.snowflake5391.net/RobertvDOJbrief.pdf.

22. On April 11, 2006, the Second Circuit issued its Robert VII v DOJ, 193 Fed. Appx. 8 (2d Cir. 2006), decision and affirmed Judge Garaufis’ March 1, 2005 decision to dismiss the FOIA action based on OIPR Counsel Baker’s Declaration. “For the reasons given by the district court, we agree that Exemption 1 permits OIPR to refuse to disclose whether it has any documents pertaining to Robert, and to refuse to turn over any such documents that it may, in fact, possess.” Id. 9. Emphasis added. With 20/20 hindsight, OIP Director Pustay knows that January 15, 2014 FBI General Counsel Baker knows whether his October 1, 2004 “corrected” Declaration was based on the May 6, 2004 “OLC Goldsmith FISA Memo” to prevent Judge Garaufis from learning that Robert had been the target of the pre-9/11 E.O. 12333 Top Secret “FISA exempt” NSA TSP conducted by CIA and DIA, in violation of the exclusivity provision” of the FISA and the PCA of 1878 limitation on military domestic law enforcement. President Obama should know this fact when he makes his pre-9/11 NSA data banks storage decision. See §§ O, P below.

23. On Mary 24, 2006, FISC Judge Malcolm Howard issued an In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from (Redacted), BR 06-05 (FISC May 24, 2006) Order that approved FBI Director Mueller’s application for to collect bulk telephony metadata under Section 215 of the PATRIOT Act. http://www.dni.gov/files/documents/section/pub_May%2024%202006%20Order%20from%20FI SC.pdf. With 20/20 hindsight, OIP Director Pustay knows whether 2014 FBI General Counsel Baker now knows whether FBI Director Mueller’s application for the metadata Order informed the FISC that the NSA Directors were conducting the 1982-2006 E.O. 12333 Top Secret “FISA exempt” NSA TSP based on the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” that were never reviewed by any FISC. See 10-3-13 Review Group Comments § D, 12-3-13 OLC FOIA WP §§ B, C, and § P below.

22 24. On March 2, 2007, Counsel for the National Security Division of Intelligence Policy Baker was interviewed on Frontline re DOJ’s role in filing FISC petitions and securing FISC Orders. http://www.pbs.org/wgbh/pages/frontline/homefront/interviews/baker.html. His answers were with his knowledge of the content of the Robert VII v DOJ “FISC Robert” documents as to whether the CIA had violated Robert’s Fourth Amendment rights so as to have made Robert a FISA “aggrieved person” by application of 50 U.S.C. § 1806 (f). “I don't want to talk about what advice I gave particularly. I'm a lawyer for the government, and there are rules about what I can disclose with respect to giving advice to my clients. See 12-3-13 OLC WP § U pp 33-39.

OIP Director Pustay knows that OIPR Counsel Baker’s use of the attorney-client privilege defense is subject to the “fraud” exception. "A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told." Clark v United States, 289 U.S. 1, 15 (1933). See complainant’s 2-7-14 FBI FOIA request

OIP Director Pustay also knows that FBI General Counsel Baker will not hide behind the attorney-client privilege if he provides FBI Director Comey, his client, with a “heads up” memo which explains whether, as the Robert VII v DOJ plaintiff has asserted, there had been a serial impeachable violation of § 413 (a) of the National Security Act, the “exclusivity provision” of the FISA, the PCA limitations on military domestic law enforcement, and the Social Security Act. She knows that in order for FBI General Counsel Baker to provide an accurate “heads up” memo for FBI Director Comey, that he will have to access and read the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” to determine whether it is based on the May 24, 1984 Top Secret “OLC Olson FISA Memo.” See 10-3-13 Review Comments §§ B, D, S and §§ O, P below.

The complainant is asserting that OIP Director Pustay knows the fact that the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP continues in 2014 to be conducted without any FISC review of the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” If so, then this proves the Robert v Holz- Robert VII v DOJ-Robert VIII v DOJ, HHS, and SSA-Robert II v CIA and DOJ plaintiff’s point that this is a raw edge Marbury v Madison, 5 U.S. 1 (Cranch) 137 (1803) separation of powers issue: whether the Article II President determines or whether the Article III Judiciary determines “what the law is” as to the “exclusivity provision” of the FISA of 1978. “It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is.” Id. 177. See 10-3-13 Review Group Comments § B and 12-3-13 OLC FOIA WP § J.

The complainant is further asserting that President Obama does not know that the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” have determined that the President’s Article II Commander in Chief “inherent authority” provides the President with the authority to determine that the “exclusivity provision” of the FISA has “unconstitutionally” encroached upon the President’s Commander in Chief authority to protect the nation by conducting the E.O. 12233 Top Secret “FISA exempt” NSA TSP. The complainant is further asserting that OIP Director Pustay knows that because President Obama does not know of warrantless domestic content data mining of the 1982-2014 E.O. 123333 Top Secret “FISA exempt” NSA TSP “haystacks” data banks transferred into the Utah Data Center, that a faux “Commander in Chief” is making those decisions in violation of the PCA of 1878 without President Obama’s knowledge. Given the gravity of that allegation, IG Horowitz should docket this complaint and read the 1984 and 2004 Top Secret OLC opinions.

23 I. Facts OIP Director Pustay knew about the DOJ March 18, 2011 decision to reclassify the Top Secret May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” when she made her decision not to docket December 3, 2013 FOIA request

The March 18, 2011 DOJ decision to reclassify this Top Secret May 6, 2004 Top Secret was made when Robert VIII v DOJ, HHS, and SSA and Clapper v Amensty were pending in the Second Circuit. The following are “Past is Prologue” 2011-2013 facts that OIP Director Pustay knew when she made her decision not to docket or process the December 3, 2013 FOIA request for the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo. These are facts that occurred during President Obama’s Constitutional watch. The decisions were made by Article II officials and attorneys whose Commander in Chief should have been President Obama and not the faux “Commanders in Chief” who had made the decisions to continue to conduct the 1982-2009 E.O. 12333 Top Secret “FISA exempt” NSA TSP without the knowledge of President Obama.

The complainant is asserting that attorneys who made the March 18, 2011 reclassification decisions now know whether they have “defrauded” President Obama. They knew when they made their declassification and reclassification decisions that DNI Director Clapper (2010-) and DOD Cyber Commander-NSA Director General Alexander (2005) were data mining the E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks without the knowledge of the FISC based on the legal authority of the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the May 6, 2004 “OLC Goldsmith FISA Memo.” They knew on March 18, 2011 that if the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” was declassified in its entirety, that this would reveal whether the May 24, 1984 “OLC Olson FISA Memo” had established that E.O. 12333 Top Secret “FISA exempt” NSA TSP data was “constitutionally seized” and therefore not subject to the “exclusivity provision” of the FISA. “Traditional Fourth Amendment analysis holds that once evidence is constitutionally seized, its dissemination or subsequent use raises no additional Fourth Amendment question.” Wainstein, 11-20-07 Opinion. See § B above.

1. On March 8, 2011, President Obama’s CIA General Counsel Nominee Caroline Krass was appointed Principal Deputy of the OLC. She had been a 1999-2000 Deputy Legal Adviser for the National Security Council. She was a 2001-2009 OLC Attorney-Advisor-Senior Counsel. She was the 2009-2010 Special Counsel to the President for National Security Affairs and Deputy Legal Adviser at the National Security Council. Upon information and belief, she was one of the attorneys who made the declassification and reclassification decisions re the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” If so, then she knows whether the reclassified Memo is the Article II “FISA secret law” that cites to May 24, 1984 Top Secret “OLC Olson FISA Memo” and E.O. 12333 Top Secret “FISA exempt” NSA TSP. See 12-3-13 OLC WP § X (8).

2. On March 18, 2011, President Obama’s Assistant to the President for Homeland Security and Counterterrorism Lisa Monaco was the Acting Principal Associate DAG. She had been the 1998-2001 Counsel to AG Reno, 2001-2005 AUSA in D.C. U.S. Attorney’s Office, 2006 Special Counsel to FBI Director Mueller, 2007 Deputy Chief of Staff and Counselor to FBI Director Mueller, and 2009 Associate DAG. On July 1, 2011, she would become AAG for the National Security Division (2011-2013). Upon information and belief, she was one of the USG attorneys who made the declassification and reclassification decisions re the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” If so, then she knows that this Article II “FISA secret law” is not known to the Article III FISC or Supreme Court. See 12-3-13 OLC WP § X (3).

24 3. On March 18, 2011, AAG of the National Security Division David Kris (2009-2011), would have been one of the USG attorneys who made the declassification and reclassification decisions re the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” He had been pre-9/11 and post- 9/11 Associate DAG (2000-2003) who was responsible for managing the Justice Department's national security programs. He became a key January 26, 2006 “whistleblower” when he sent his memo to AG Gonzales’ Associate Counsel Courtney Elwood that explained why he had concluded that the post-9/11 NSA PSP was in violation of the “exclusivity provision” of the FISA. http://balkin.blogspot.com/kris.fisa.pdf. Upon information and belief, he would resign because he knew that the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” was not revoked, and had become a “smoking gun” admission of an ongoing violation of the “exclusionary provision” of the FISA of 1978 without the knowledge of President Obama.

4. On March 18, 2011, Deputy Associate DAG James Baker would have been one of the USG attorneys who made the declassification and reclassification decisions re the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” He had been the OIPR Counsel whose Robert VII v DOJ October 1, 2004 Declaration was relied upon by the Second Circuit when it rendered its April 11, 2006 FOIA decision. Upon information and belief, he would resign because he too knew that the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” was not revoked, and had become a “smoking gun” admission of an ongoing violation of the “exclusionary provision” of the FISA of 1978 without the knowledge of President Obama. He is now FBI Director Comey’s FBI General Counsel who will be making decisions re the Robert VII v DOJ-Robert VIII v DOJ, HHS, and SSA plaintiff’s February 7, 2014 de novo FBI FOIA request for eight sets of FBI document that include the # 7 “FBI Robert VII v DOJ “FISC Robert” and # 8 ”FBI Charles Robert documents including NSLs sent to banks and ISP” documents. See § P below.

5. On March 18, 2011, Associate AG Thomas Perrelli (2009-2012) was the supervising attorney of the USG attorneys who made the declassification and reclassification decisions re the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” He had been the 1997-1999 Counsel to AG Reno and a 1999-2001 DAAG for AAG of the Civil Division David Ogden (1999-2001) who was the 2009 DAG. Upon information and belief, he made the final decisions as to which portions of the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” were reclassified as the Article II “FISA secret law” that he knew was not known to the Article I “Gang of Eight”, Article II President Obama, and the Article III FISC and Supreme Court.

6. On March 18, 2011, all of the intelligence Community (IC) agencies that would be affected by the declassification and reclassification of the May 6, 2004 Tops Secret “OLC Goldsmith FISA Memo,” would have had the opportunity to sign off on the declassification and reclassification decisions prior to the release of the document. Upon information and belief, DNI General Counsel Robert Litt (2009-) on behalf of DNI Director James Clapper (2010-), NSA General Counsel Matthew Olsen (2010-2011) on behalf of NSA Director General Keith Alexander (2005-), DOD General Counsel Jeh Johnson (2009-2013) on behalf of DOD Secretary Robert Gates (December 18, 2006-July 1, 2011), CIA General Counsel Stephen Preston (2009-2013) on behalf of CIA Director Leon Panetta (February 13, 2009-July 1, 2011), and FBI General Counsel Valerie Caproni (2003-2011), on behalf of FBI Director Robert Mueller (2001-2013), all ratified the March 18, 2011 reclassification of the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” If so, then these IC General Counsels knew this was Article II “FISA secret law” that was not known to the Article III FISC or the Supreme Court.

25 7. On March 18, 2011, former- AAG of the OLC Jack Goldsmith commented on his Blog re the DOJ’s release of the reclassified copy of his Top Secret May 6, 2004 “OLC Goldsmith FISA Memo” that he knew had been based on AAG of the OLC Theodore Olson’s Top Secret May 24, 1984 Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Surveillance Act of 1979 Memo. “I continue to believe that the memorandum provides a sound analysis of a difficult set of legal issues encountered in a difficult context.” Emphasis added. http://www.lawfareblog.com/2011/03/doj- releases-redacted-version-of-2004-surveillance-opinion/

8. On March 21, 2011, the Second Circuit decided Clapper v Amnesty, 638 F. 3rd 118 (2d Cir. 2011) and established the standing standard that applied to the Robert VII v DOJ plaintiff. The Robert VIII v DOJ, HHS, and SSA plaintiff’s appeal was then pending in the Second Circuit and AG Holder’s Brief was to be filed on May 25, 2011. This is an important time line fact because appellant Robert was arguing to the Second Circuit that the AG Holder was withholding material facts from the Second Circuit re the Article II “FISA secret law” that had also been withheld from the Judge Garaufis, the Second Circuit, and the Supreme Court in Robert VII v DOJ.

9. On April 11, 2011, the Robert VIII v DOJ, HHS, and SSA plaintiff filed a declassification request with OIP Director Pustay for Mandatory Declassification Review of the March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” with a supporting WP. “One of the purposes of seeking the declassified unredacted document is to prevent AG Holder from committing a “fraud upon the court” in Robert VIII v DOJ, HHS, and SSA, docket No. 09- 4684-cv, as AG Gonzales had committed in Robert VII v DOJ, 2005 U.S. Dist. LEXIS 39616, 193 Fed. Appx. 8 (2d Cir. 2006), cert. den. 127 S.Ct. 1133 (2007), by intentionally withholding material facts from Judge Garaufis, the Second Circuit, and the Supreme Court.” 4-11-11 OLC MDR WP p.1. Emphasis added. http://snowflake5391.net/4_11_11_OLC_MDR_WP.pdf. Needless to say, this declassification request was denied.

10. On May 25, 2011, AG Holder filed his Robert VIII v DOJ, HHS, and SSA Brief. He did not inform the Second Circuit that AG Gonzales had not informed the Second Circuit in Robert VII v DOJ that Robert had been the target of the E.O. 12333 Top Secret “FISA exempt NSA TSP. AG Holder also did not inform the Second Circuit of the Article II “FISA secret law” of the May 24, 1984 Top Secret “OLC Olson FISA Memo” or the March 18, 2011 reclassified Top Secret May 6, 2004 “OLC Goldsmith FISA Memo.” See 4-11-11 OLC MDR WP §§ D, E.

11. On September 6, 2011, the Second Circuit issued its Robert VIII v DOJ, HHS, and SSA decision and affirmed Judge Garaufis’ decision. However, the panel modified the December 14, 2005 Robert VIII v DOJ, HHS, and SSA Clerk’s Judgment whereby Robert was enjoined from filing a FOIA complaint without Judge Garaufis’ pre-clearance Order, but no longer enjoined from filing a FOIA request. See 10-3-13 Robert Review Group Comments § E.

12. On September 13, 2011, the Robert VIII v DOJ, HHS, and SSA plaintiff filed a series of de novo DOJ, FBI, CIA, NSA, NARA, HHS, and SSA FOIA requests seeking the release of a mosaic of documents to prove true his almost incredible 1985-2011 FOIA complaints’ allegations. The September 13, 2011 FOIA requests included OLC FOIA requests filed with OLC Special Counsel Paul Colborn for the “May 6, 2004 OLC Memorandum from AAG of the OLC Goldsmith to AG Ashcroft” and nine OLC “nonacquiescence” policy decisions.

26 13. On October 25, 2011, the Robert VIII v DOJ, HHS, and SSA plaintiff appealed OLC Special Counsel Colborn’s denial decisions. He included a 74 page “10-25-11 White Paper in support of 10-25-11 letter to AAG of the OLC Seitz to review OLC Special Counsel Colborn’s September 30, 2011 decision not to release the March 18, 2011 reclassified May 6, 2004 OLC FISA Memo to AG Ashcroft and his decision not to decide the de novo 9-13-11 OLC FOIA requested 9-15-10 OLC documents.” http://snowflake5391.net/10_25%20_11_WPSeitz.pdf

14. On November 30, 2011, the Robert VIII v DOJ, HHS, and SSA appellant filed his Petition for a Writ of Certiorari. http://snowflake5391.net/Robert8vDOJpetition1.pdf. The plaintiff believed that the filing of the Petition would result in the long sought quiet settlement of the 1985-2011 Robert FOIA litigation because SG Donald Verrelli would be confronted with the fact that SC Paul Clement had withheld material facts from the Supreme Court when he decided not to file a Brief in opposition to the Robert VII v DOJ Petition for a writ of certiorari.

15. On January 4, 2012, SG Verrelli informed the Supreme Court Justices that the USG would waive its right to file a response to the Robert VIII v. DOJ, HHS, and SSA petition for a writ of certiorari. “The Government hereby waives its right to file a response to the petition in this case unless requested to do so by the Court.” Robert VIII v. DOJ, HHS, and SSA, 439 Fed. Appx 32 (2d Cir. 2011), cert. den. 132 S. Ct. 1549 (2012).

The Robert VIII v DOJ, HHS, and SSA plaintiff asserts that the decision not to file a petition for a writ of certiorari was an affirmative decision to continue the legal “Ponzi” scheme that is evidenced by the March 18, 2011 reclassification of the May 6, 2004 “OLC Goldsmith FISA Memo.” The USG attorneys who made the March 18, 2011 reclassification decision knew that there had been a “mission creep” from the use of the May 24, 1984 “OLC Olson FISA Memo” as the legal basis for 1982-2004 E.O. 12333 Top Secret “FISA exempt” NSA TSP to being the secret legal basis for the metadata program. They knew with 20/20 hindsight that AG Ashcroft’s May, 2004 decision not to inform FISC Chief Judge Colleen Kollar-Kotelly of the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” was a fatal mistake that could only be cured by President Obama complying with his § 413 (b) of the National Security Act “shall” duty to file a “corrective action” plan to cure the illegal intelligence community activity. See 3- 18-11 ODNI ISCAP WP. http://snowflake5391.net/3_18_11_WP_ISCAPDNI.pdf and 4-11-11 OLC MDR WP. http://snowflake5391.net/4_11_11_OLC_MDR_WP.pdf.

OIP Director Pustay knows with 20/20 hindsight that the March 18, 2011 reclassification decision was a “smoking gun” decision because it ratified the May 24, 1984 “OLC Olson FISA Memo” and the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” as being the Article II “FISA secret law” that was not known to the Supreme Court when it rendered its February 26, 2012 Clapper v Amnesty decision. She knew why SG Verrelli did not inform the Supreme Court of the March 18, 2011 reclassification of the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” in both Robert VIII v DOJ, HHS, and SSA and Clapper v Amnesty.

Hence, the importance of IG Horowitz making preliminary queries to the above named DOJ attorneys and IC General Counsels. They all know that President Obama should know the Article II Top Secret “FISA secret law” that they know is not known to the FISC or to the Supreme Court or to President Obama. They know from reading the March 18. 2011 reclassified OLC FISA Memo that President Obama is being “defrauded” in 2014. See § A above.

27 J. OIP Director Pustay’s knows that the February 7, 2014 de novo FOIA requested eights sets of FBI documents are connect-the-dots documents with the Top Secret May 24, 1984 OLC Olson FISA Memo and the May 6, 2004 “OLC Goldsmith FISA Memo”

On January 24, 2014, the Robert VIII v DOJ, HHS, and SSA plaintiff mail served OIP Director Pustay a copy of the plaintiff’s February 28, 2013 letter sent to OIP Director Pustay re the September 13, 2011 de novo FOIA requested FBI documents. The February 28, 2013 letter had placed her on Notice of the significance of the FBI documents because of Justice Alito’s February 26, 2013 Clapper v Amnesty dicta that informed the public that AG Holder continues to implement President Reagan’s December 4, 1981 E.O. 12333. “And, although we do not reach the question, the Government contends that it can conduct FISA-exempt human and technical surveillance programs that are governed by Executive Order 12333.” Id. 14.

On February 7, 2014, the Robert II v CIA and DOJ and Robert VIII v DOJ, HHS, and SSA plaintiff filed a de novo FBI FOIA request for the eight sets of FBI documents. That request is enclosed with the February 7, 2014 IG complaint against OIP Director Pustay.

The complainant seeks the following FBI documents to present to FBI General Counsel Baker and FBI Director Comey to prove his almost incredible allegation that FBI Director Judge Webster knew that CIA Director Casey and AG Meese had “defrauded” President Reagan because the FBI Director knew that illegal E.O. 12333 Top Secret DIA-CIA “special activities” were conducted at IMC and the NSA without the knowledge of President Reagan:

Re: Appeal No. 2012-01603 & AP 2012-01663 of Request No. 1151829: 1) FBI Abshire documents-third request 2) FBI copy of joint FBI-DOJ-HHS “IMC Final Investigative Report” 3) FBI copy of February 25, 1987 “Perot” documents 4) FBI copy of Robert v National Archives “FBI Agent Allison” documents 5) FBI unredacted copy of Robert v DOJ “62-0 file” documents 6) FBI Robert III v DOJ “Recarey extradition” documents 7) FBI Robert VII v DOJ “FISC Robert” documents 8) FBI Charles Robert documents including NSLs sent to banks and ISP

The FBI FOIA requested # 7 “FBI Robert VII v DOJ “FISC Robert” and # 8 “FBI Charles Robert documents including NSLs sent to banks and ISP” documents are connect-the- dots documents with 1984 and 2004 Top Secret OLC FISA Memos. The # 7 and # 8 documents are concrete documents that prove whether the Robert v Holz plaintiff was the target of the illegal E.O. 12333 Top Secret “FISA exempt” NSA TSP that was being conducted in violation of his First and Fourth Amendment rights and the “exclusivity provision” of the FISA of 1978.

FBI General Counsel Baker can determine whether the May 24, 1984 “OLC Olson FISA Memo” was the legal basis for the FBI-DOJ-HHS joint 1984-1987 “Fraud Against the Government” investigation of Robert. He can determine whether AAG of the OLC Olson had determined that the “exclusionary provision” of the FISA as applied to the 1984-1987 E.O. 12333 Top Secret “FISA exempt” NSA TSP that had targeted Robert, was an “unconstitutional” encroachment on the President’s Article II Commander in Chief authority to conduct warrantless domestic surveillance to protect the nation from terrorists. See 10-3-13 Review Comments § A.

28 FBI General Counsel Baker can compare the # 7 and # 8 FBI documents to the “FISA Robert” documents that he reviewed on March 1, 2004 when he made his decision to ratify CIA Director Tenet’s FOIA Officer’s decision to use FOIA Exemption 1 and the “Glomar Response” defense. He can also determine whether Robert’s assertion is true that FBI Director Judge Webster had zero evidence that Robert was a terrorist or an agent of a foreign power when Robert was made the target of the E.O. 12333 Top Secret “FISA exempt” NSA TSP.

FBI General Counsel Baker can determine whether he had been provided accurate CIA facts from his CIA liaison when he made his March 1, 2004 decision to affirm the CIA’s use of FOIA exemption 1 and the “Glomar Response” defense to withhold the “FISC Robert” documents. This is an important “Past is Prologue” fact because the Second Circuit’s April 11, 2006 Robert VII v DOJ decision was based on OIPR Counsel Baker’s October 1, 2004 “corrected” Declaration. “For the reasons given by the district court, we agree that Exemption 1 permits OIPR to refuse to disclose whether it has any documents pertaining to Robert, and to refuse to turn over any such documents that it may, in fact, possess.” Id. 9. Emphasis added.

OIP Director Pustay knows that FBI General Counsel Baker knows that Justice Scalia’s Pavelic & Le Fore v Marvel Entertainment Group, 110 S. Ct. 456, (1989), this is not a “team effort” FRCP 11 standard, applies to his October 1, 2004 “corrected” Robert VII v DOJ Declaration. “The message there by conveyed to the attorney, that this is not a “team effort” but in the last analysis yours alone, precisely to the point of Rule 11.” Id. 459. Emphasis added.

OIP Director Pustay knows that FBI General Counsel Baker and EDNY AUSA Mahoney are bound by the April 1, 2009 NYS Rules of Professional Conduct Rule 3.3(a)(3) duty to cure misrepresentations of fact and law made to tribunals. “If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of the falsity, the lawyer shall take responsible remedial measures, including if necessary disclosure to the tribunal.” They know that this standard applies to OIPR Counsel Baker’s October 1, 2004 “corrected” Robert VII v DOJ Brief submitted to Judge Garaufis and AUSA Mahoney’s April 3, 2006 Robert VII v DOJ letter-Brief submitted to the Second Circuit.

OIP Director Pustay knows that FBI General Counsel Baker, EDNY U.S. Attorney Lynch (1999-2001 and 2010-), and EDNY AUSA Mahoney all know that the NYS Judiciary Law § 487, Misconduct by attorneys, deception of Judges standard, will apply if the plaintiff files a Robert VIII v DOJ, HHS, and SSA Motion for a preclearance Order to file a putative FOIA complaint to seek the release of the two Top Secret OLC FISA Memos and the eight sets of FBI FOIA requested documents. “1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; ” Emphasis Added. See 2-22- 12 OGIS FBI WP § V. http://snowflake5391.net/2_22_12_OGIS_FBI_WP.pdf

As per the February 7, 2014 de novo FBI FOIA request, the Robert VIII v DOJ, HHS, and SSA plaintiff has requested that FBI Director Comey’s FOIA Officer provide the plaintiff with an FBI FOIA request of acknowledgment letter within 20 days. If a docket number or acknowledgment letter is not received within 20 days, then the plaintiff’s Robert VIII v DOJ, HHS, and SSA Motion to Judge Garaufis for a pre-clearance Order will be ripe for filing. Hence, the importance of IG Horowitz docketing this complaint and making a prompt preliminary investigation that includes contacting FBI General Counsel Baker.

29 K. OIP Director Pustay’s knows that the February 7, 2014 de novo FOIA requested eights sets of FBI documents are connect-the-dots documents with the four CIA classified 1985 Robert II v CIA and DOJ documents because they reveal the existence of the illegal E.O. 12333 Topic Secret CIA-DIA domestic “special activities” at IMC and the NSA

OIP Director Pustay’s knows that the February 7, 2014 de novo FOIA requested eight sets of FBI documents are connect-the-dots documents with the four CIA classified 1985 Robert II v CIA and DOJ documents because they reveal the existence of the illegal E.O. 12333 Topic Secret CIA-DIA domestic “special activities” at IMC and the NSA. She knows that these documents reveal whether FBI Director Judge Webster knew that HHS General Counsel Juan del Real (1981-1985)-IMC Chief of Staff (1985-1987) was CIA Director Casey’s E.O. 12333 CIA domestic covered agent tasked with funding illegal E.O. 12333 Top Secret CIA-DIA domestic “special activities” with unaudited HHS funds because FBI Director Judge Webster knew that classified OMB Funds could not be used to pay for the CIA-DIA domestic special activities because of the § 413 (a) of the National Security Act “Gang of Eight” Notification requirement.

OIP Director Pustay knows why the Robert II v CIA and DOJ plaintiff’s quiet settlement offer had been refused by CIA General Counsel Preston (2009-2013). She knows whether CIA General Counsel Preston knew that the four CIA classified 1985 “North Notebook” documents along with the Robert I v CIA, cv 00-4325 (Seybert, J),and Robert II v CIA and DOJ case file notes and e-mails revealed that HHS General Counsel del Real was CIA Director Casey’s E.O. 12333 domestic CIA agent when he initiated the “Fraud Against the Government” investigation of Robert and used for law enforcement purposes Robert content data from the NSA TSP. See April 14, 1988 House Committee on Government Operations Report: Medicare Health Maintenance Organizations: The International Medical Centers Experience and Miami Mystery: Paid to Treat Elderly, IMC Moves in Worlds of Spying and Politics: Medicare Money Flowed in: Only Mr. Recarey Knows Where It Flowed Next: Congress, "bugs" and Mob. Wall Street Journal 8-9-1988. See also 5-9-11 CIA MDR. http://snowflake5391.net/5_9_11_MDR_CIA.pdf

OIP Director Pustay knows that the February 7, 2014 de novo FBI FOIA requested # 1 “FBI Abshire documents”, # 2 “FBI copy of joint FBI-DOJ-HHS “IMC Final Investigative Report”, # 3 “FBI copy of February 25, 1987 “Perot”, # 4 “FBI copy of Robert v National Archives “FBI Agent Allison”, # 5 “FBI unredacted copy of Robert v DOJ “62-0 file”, and # 6 “FBI Robert III v DOJ “Recarey extradition” documents, reveal whether FBI Director Judge Webster knew that HHS General Counsel-IMC Chief of Staff del Real was CIA Director Casey’s illegal E.O. 12333 CIA domestic agent who participated in the illegal E.O. 12333 CIA-DIA domestic “special activity” at IMC. She knows they are the connect-the-dots documents to the # 7 “FBI Robert VII v DOJ “FISC Robert” and # 8 “FBI Charles Robert documents including NSLs sent to banks and ISP” documents that are the connect-the-dots documents to the December 3, 2013 FOIA requested May 24, 1984 Top Secret “OLC Olson FISA Memo” and March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” that she has been ordered not to docket and not to process. See 12-3-13 OLC FISA WP §§ A-F.

Hence, the importance of IG Horowitz conducting a preliminary investigation that includes contacting DOD General Counsel Preston, the 2009-2013 CIA General Counsel, to learn why the plaintiff’s Robert II v CIA and DOJ quiet settlement offer was rejected. IG Horowitz will learn why the 2009-2013 “defrauding” of President Obama continues in 2014.

30 L. IG Horowitz’ December 11, 2013 investigation of the “storing, handling, and use” of the content of the E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks

On December 11, 2013, DOJ Inspector General (IG) Michael Horowitz sent a Memorandum For the Attorney General and the Deputy Attorney General: Top Management and Performance Challenges Facing the Department of Justice. IG Horowitz included a Section on Safeguarding National Security Consistent with Civil Rights and Liberties. The IG noted potential problems re the storage and use of NSA TSP data generated from the NSA TSP. “For example, significant public attention has been paid to the programs authorizing the acquisition of national security information, but relatively less has been paid to the storing, handling, and use, of that information. Emphasis added. http://www.justice.gov/oig/challenges/2013.htm

This is the “Past is Prologue” issue of “storing, handling, and use” raised by the five Intelligence Community IGs in their July 10, 2009 released Unclassified Report on the President’s Surveillance Program. That report was limited to the post-9/11 PSP and did not cover “Other” Intelligence Activities. “The specific details of the Other Intelligence Activities remain highly classified, although the Attorney General publicly acknowledged the existence of such activities in August, 2007.” Id. 6. Emphasis Added.http://www.usdoj.gov/oig/special/s0907.pdf.

When IG Horowitz conducts his 2014 investigation of the “storing, handing, and use” of data used by the NSA TSP, he should know the legal basis for the 1982-2014 NSA Directors conducting the E.O. 12333 Top Secret “FISA exempt” NSA TSP that was never been reviewed by the Article I “Gang of Eight” or FISC or the Supreme Court. Hence, the importance of IG Horowitz reading 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” that is the subject of the Robert VIII v DOJ, HHS, and SSA plaintiff’s complaint against OIP Director Pustay.

This is an especially timely issue given President Obama’s January 17, 2014 decision to task AG Holder with providing guidance as to where the NSA TSP data banks should be stored. On January 17, 2014, President Obama delivered his NSA TSP reform speech at the DOJ. President Obama tasked AG Holder to work with the intelligence community and provide the President by March 28, 2014 alternative approaches for storing metadata data to be part of the 2014 NSA reforms. “They will report back to me with options for alternative approaches before the program comes up for reauthorization on March 28, 2014.” Id. p. 7. Emphasis added. http://www.politico.com/story/2014/01/barack-obama-nsa-speech-transcript-102315.html.

AG Holder will have to decide where the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks should be stored. When AG Holder is making his decision as to recommendations as to the storage of the 1982-2014 Top Secret “FISA exempt” NSA TSP data banks, he will be confronted with the issue of the “defrauding” of President Obama who at this late date does not know that the 1982-2014 NSA Directors have conducted warrantless domestic content data mining of the 1982-2014 NSA TSP data banks that have never been subject to FISC or Supreme Court review. Hence, the importance of IG Horowitz conducting a February, 2014 preliminary investigation that includes contacting AG Holder to make sure that AG Holder reads the May 24, 1984 “OLC Olson FISA Memo” and March 18, 2011 reclassified May 6, 2004 OLC Goldsmith FISA Memo” as he prepares his March 28, 2014 Report to the President re the storage of 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks.

31 M. IG Horowitz’ January 15, 2014 House testimony and the July 10, 2009 released Unclassified Report on the President’s Surveillance Program that did not have jurisdiction to review Top Secret “Other Intelligence Activities” programs

On January 15, 2014, IG Horowitz appeared before the House Committee on Oversight and Government Reform submitted his Statement: Strengthening Agency Oversight: Empowering the Inspectors General Community. IG Horowitz informed the Committee of two areas “where our ability to conduct effective and independent oversight can be strengthened.” Id. 2. http://www.justice.gov/oig/testimony/t140115.pdf.

This testimony was with IG Horowitz knowledge of the five Intelligence Community IGs’ July 10, 2009 Classified and Unclassified Report on the President’s Surveillance Program. He knew that those IGs had been denied access to Top Secret documents re the NSA TSP.

IG Horowitz explained the problem of “Access to Documents Relevant to OIG Reviews” when IGs are denied access to documents they need to conduct thorough investigations:

This principle is both simple and important, because refusing, restricting, or delaying an OIG’s access to documents may lead to incomplete, inaccurate, or significantly delayed findings or recommendations, which in turn may prevent the agency from correcting serious problems in a timely manner. Id. 2. Emphasis added.

IG Horowitz discussed IGs’ access to access to FISA documents:

We have had similar issues raised regarding our access to some other categories of documents, including FISA information, which is obviously critical for us to review in connection with our national security reviews. And I understand that several Inspector General at other federal agencies have had similar issues regarding access to records within their agencies. Although our office has not yet had an instance where materials were ultimately withheld from us that were necessary to complete a review, were remain concerned that about the legal questions that have been raised and the potential impact of these issues on our future reviews. Moreover, issues such has these have, at times, significantly delayed our access to documents that were essential to conducting our reviews, thereby substantially impacting the time required to complete the review. Id. 3. Emphasis added.

The Robert v Holz-Robert VIII v DOJ, HHS, and SSA plaintiff-complainant asserts that given the gravity of his allegations that USG officials and attorneys have “defrauded” President Obama re the 2009-2014 warrantless domestic content data mining of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks, IG Horowitz should not be denied access to the May 24, 1984 “OLC Olson FISA Memo” and March 18, 2011 reclassified May 6, 2004 OLC Goldsmith FISA Memo” documents. Therefore, if IG Horowitz dockets this complaint and conducts a prompt February preliminary investigation, then he will know by February 28, 2014 whether he will be denied access to the 1984 and 2004 Top Secret OLC FISA Memos which reveal whether the complaint’s almost incredible allegations are true.

32 On July 10, 2009, during President Obama’s Constitutional watch, the five Intelligence Community IGs, CIA IG Helgerson, DOJ IG Fine, ODNI ID Maguire, and NSA IG Ellard, released to the public the Unclassified Report on the President’s Surveillance Program. This Report was limited to the post-9/11 PSP and did not cover “Other” Intelligence Activities. “The specific details of the Other Intelligence Activities remain highly classified, although the Attorney General publicly acknowledged the existence of such activities in August, 2007.” Id. 6. http://www.usdoj.gov/oig/special/s0907.pdf. Upon information and belief, the “Other Intelligence Activities” includes the domestic surveillance content data mining of the E.O. 12333 Top Secret “FISA exempt” domestic surveillance of U.S. citizens NSA TSP that has never been reported to the Article I “Gang of Eight”, or to Article II President Obama, or to the Article III FISC or Supreme Court. See 10-3-13 Robert Group Review Comments §§ B-D.

The IGs PSP Report explained the use of the term Terrorist Surveillance Program (TSP) as applied to the President’s Surveillance Program (PSP) that was initiated after 9/11. The Report noted that there were highly classified “Other Intelligence Activities” not subject to the Report:

The President and other Administration officials referred to this publicly disclosed activity as the “Terrorist Surveillance Program,” a convention we follow in this unclassified report. We refer to other intelligence activities authorized under the Presidential Authorizations as the “Other Intelligence Activities.” The specific details of the Other Intelligence Activities remain highly classified, although the Attorney General publicly acknowledged the existence of such activities in August, 2007. Together, the Terrorist Surveillance Program and the Other Intelligence Activities comprise the PSP. Id. 6. Emphasis Added.

The July 10, 2009 comprehensive Unclassified Report on the President’s Surveillance Program did not reveal whether the post-9/11 President’s Surveillance Program (PSP) was based on the May 24, 1984 and May 6, 2004 OLC FISA Memos interpreting the FISA of 1978:

Title III of the Foreign Intelligence Surveillance Act Amendments of 2008 required the Inspector Generals (IGs) of the elements of the Intelligence Community that participated in the President’s Surveillance Program (PSP) to conduct a comprehensive of the program. The IGs of the Department of Justice, the Department of Defense, the Central Intelligence Agency, the National Security Agency, and the Office of the Director of National Intelligence participated in the review. The Act required the IGs to submit a comprehensive report on the review to the Senate Select Committee on Intelligence, the Senate Committee on the Judiciary, the House Permanent Select Committee on Intelligence and the House Judiciary Committee. Preface. Emphasis added.

Upon information and belief, the five IC IGs did not discuss the pre-9/11 NSA TSP data banks in the Classified Report on the President’s Surveillance Program. If not, then IG Horowitz has a duty to request that AG Holder produce the May 24, 1984 Top Secret “OLC Olsson FISA Memo” and the March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” to learn whether this is the 2014 Article II “FISA secret law.”

33 IG Horowitz also explained the problem of “limitations on the DOJ OIG’s Jurisdiction” with the Office of Professional Responsibility (OPR) re DOJ attorneys:

Unlike Inspectors General throughout the federal government, our office does not have authority to investigate all allegations of misconduct within the agency we oversee. While we have jurisdiction to review alleged misconduct by non-lawyers in the Department, under Section 8E of the Inspector General Act, we do not have the same jurisdiction over alleged misconduct committed by Department attorneys why they act in their capacity as lawyers—namely when when are litigating, or providing legal advice. In those instances, the Inspector General Act grants exclusive investigative authority to Department’s Office of Professional Responsibility (OPR). As a result, these types of misconduct allegations against Department lawyers (including those in leadership positions) are handled differently than misconduct allegations made against law enforcement agents or other Department employees. My office has long questioned this distinction between the treatment of misconduct by attorneys acting in their legal capacity and misconduct by other Department employees, and such a system cannot but have a detrimental effect on the public’s confidence in the Department’s ability to review misconduct by its own attorneys. Id. 3-4. Emphasis added.

The complainant asserts that IG Horowitz has jurisdiction over OIP Director Pustay because the complaint is re OIP Director Pustay’s ministerial act of supervising the FOIA Officers who have a duty to docket FOIA requests and/or provide acknowledgment letters. OIP Director Putsay is not acting as a DOJ attorney who is providing legal advice to her clients. Indeed, in the complainant’s serial 1985-2014 DOJ FOIA requests, OIP Director Pustay, a 1983- 1998 OIP Attorney Advisor, 1999-2007 OIP Deputy Director, 2007-2014 OIP Director, has never appeared in any of the Robert FOIA litigation that sought DOJ or FBI documents.

The Robert VII v DOJ-Robert VIII v DOJ, HHS, and SSA plaintiff-complainant is asserting that OIP Director Pustay knows that these 1984 and 2004 Top Secret OLC FISA Memos explain the “FISA secret law” that continues in 2014 not to be known to the FISC or the Supreme Court. If so, then President Obama should know this fact when he makes his decision re the storage of the “FISA exempt” NSA TSP data banks. This is especially the case if the 1982- 2004 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” data banks have been transferred into the Utah Data Center and continue not to be subject to FISC Orders. President Obama should know these Article II “FISA secret law” facts prior to AG Holder’s March 28, 2014 Report to the President. Therefore, if IG Horowitz is denied access to the FOIA requested May 24, 1984 Top Secret “OLC Olson FISA Memo” and the March 18, 2011 reclassified May 6, 2004 Top Secret OLC FISA Memo,” then President Obama should immediately be so informed. If President Obama does not know of this Article II “FISA secret law” that is being applied to the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks, then President Obama should be placed on alert that 2009-2014 faux “Commanders in Chief” have conducted domestic content surveillance of these “haystacks” without the knowledge of the Article I FISC, Article II President Obama, and Article III FISC and Supreme Court. If so, then President Obama should know that he has been “defrauded” because there have been 2009-2014 serial impeachable violations of the FISA and PCA without his knowledge.

34 N. IG Horowitz January 15, 2014 House testimony, Review Group Member Swain’s April 28, 2005 House testimony, and the 2014 storage of the E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” data banks that were on DOD’s side of the 1995 DOJ “wall”

IG Horowitz January 15, 2014 House testimony has made more important the Review Group Member Professor Swain’s April 28, 2005 House testimony re the 1995 DOJ “wall” that was constructed to prevent DOJ attorneys from providing misinformation to the Article III Judges re U.S. citizens facts known to the NSA Directors that were secured from warrantless content data mining of the E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” data banks. AG Holder and FBI Director Comey have to make March, 2014 storage decisions re the pre-9/11 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” data banks that were on DOD’s side of the 1995-2001 DOJ “wall.” See 2-22-12 NARA FBI WP §§ C, K, I.

After AG Holder makes his March, 2014 “storage” decisions as to the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks, IG Horowitz has the duty to make sure that this decision complies with the “exclusivity provision” of the FISA. As per IG Horowitz January 15, 2014 testimony to the House Committee on Oversight and Government Reform, he may be confronted with the problems he outlined in his “Access to Documents Relevant to OIG Reviews” section as to access to documents re the storage of the pre-9/11 NSA TSP data banks.

An IG Horowitz review of the pre-9/11 1995-2001 E.O. 12333 Top Secret “FISA exempt” NSA TSP data banks may result in IG Horowitz learning whether, contrary to popular belief, the 1995-2001 DOJ “wall” did not prevent NSA Directors Vice Admiral Mike Mc Connell (1992-1996), Lt. General Kenneth Minihan (1996-1999), General Michael Hayden (1999-2005), and DIA Directors Lt. General USAF James Clapper (November 1991-August, 1995), Lt. General, USAF, Kennth Minihan (1995-1996), Lt. General USA Patrick Hughes (1996-1999), and Vice Admiral Thomas Wilson (1999-2002) from continuing in 1995-2001 to conduct warrantless domestic content data mining of 1982-2001 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” data banks. If so, then IG Horowitz will learn that only the Article II DOD and NSA “minimization” standards acted as checks and balances on 1995-2001 warrantless domestic content surveillance of U.S. citizens in violation of Fourth Amendment.

On April 28, 2005, the House Judiciary Committee Subcommittee on Crime, Terrorism, and Homeland Security held a hearing re the Implementation of the USA Patriot Act: Section 218- Foreign Intelligence Information (“The Wall”). One of the witnesses was Professor Peter Swain because his Law Review Article was considered the definitive scholarly review of the “The Wall.” http://commdocs.house.gov/committees/judiciary/hju20877.000/hju20877_0.htm

Review Group Member Swain’s April 28, 2005 testimony was prescient given the July 15, 2004 Order of FISC Chief Judge Colleen Kollar-Kotelly May that he did not know had been issued, the May, 2013 Snowden leaks, and the December 12, 2013 Review Group Final Report:

Mr. SWIRE. Thank you, Mr. Chairman, and thank you for the kind words from Ohio. Thank you, Mr. Ranking Member, for being here today and for you inviting me back to testify this week. Your Committee is doing an exemplary job, I believe, of developing a record for what to do next on the PATRIOT Act.

35 The topic of today's hearing, FISA and ''The Wall,'' has been the focus of my biggest single research project since I left the Government 5 years ago. My testimony today is drawn from a Law Review article that has been placed in the hearing record and is available online. Research for that article included many interviews, often on background, with Government officials who have worked with FISA over the decades.

I have one over-arching point today, as well as four specific points. The over-arching point is this: ''The Wall'' has been our chief protection against a slippery slope, against permitting secret FISA surveillance from expanding deep into normal law enforcement activities. If ''The Wall'' stays down, then it is the job of this Committee and the Congress to create a new set of checks and balances against abuse.

These hearings are the single biggest reexamination of FISA since it was passed in 1978. I therefore attached to the testimony a set of oversight questions, to try to clarify law and practice. I've also attached a list of concrete possible reforms that can, taken together, I hope, create the checks and balances needed to replace ''The Wall.'' In 2001, a wall was taken out of the structure of FISA. It's up to Congress to build a sound structure for the future. Id. 43-44. Emphasis added.

If IG Horowitz is tasked with making sure that AG Holder’s plan re the storage of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” data banks does not violate the “exclusivity provision” of the FISA, then he should have access to the Classified “storage” plan that IG Holder files with the FISC when AG Holder seeks a March 28, 2014 recertification Order. IG Horowitz should be considering the standards that will be applied in 2014 to address Review Group Member Swire’s April 28, 2005 overarching point:

''The Wall'' has been our chief protection against a slippery slope, against permitting secret FISA surveillance from expanding deep into normal law enforcement activities. If ''The Wall'' stays down, then it is the job of this Committee and the Congress to create a new set of checks and balances against abuse. Id. 43. Emphasis added.

IG Horowitz should consider providing AG Holder with a preemptive set of standards that should attach to the 2014 “storage” of the E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” data banks that may have already been transferred into the Utah Data Center. IG Horowitz should consider providing a “Past is Prologue” analysis that is based on the “minimization” standards that were applied from 1982-1995 before the “Wall” was established, from 1995-2001 during the existence of the “Wall” prior to 9/11, and from 2001-2005 after the USA Patriot Act had eliminated the “Wall” as to intelligence community information sharing. There is a lesson to be learned from the 1969-2014 NSA Directors decisions never to destroy NSA TSP “haystacks” in anticipation of exponentionally more powerful algorithm derivatives retroactively applied to the NSA “haystacks” data banks. Hence, President Obama’s decision to task AG Holder and the Intelligence Community with coming up with a new “storage” plan in March, 2014. “Those who fail to learn from history are doomed to repeat it.” George Santayana.

36 O. President Obama’s January 17, 2014 NSA TSP reform speech delivered at the DOJ

On January 17, 2014, President Obama delivered his NSA TSP reform speech at the DOJ. The President informed AG Holder, FBI Director Comey, and the public that there would be 2014 significant reforms of the NSA TSP. The Robert v Holz-Robert VII v DOJ-Robert VIII v DOJ, HHS, and SSA plaintiff-complainant asserts that those 2014 reforms should include President Obama deciding whether to revoke the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the March 18, 2011 reclassified May 6, 2004 Top Secret OLC FISA Memo.” President Obama has a 2014 duty to fulfill his § 413 (b) of the National Security Act “shall” duty to file a “corrective action” plan to remedy prior intelligence community illegal activities. See 10-3-13 Robert Review Group Comments §§ B,C, S and 12-3-13 OLC FOIA WP §§ D-F.

President Obama recognized the potential for data abuse when the NSA conducts surveillance of U.S. citizens and controls the data from that surveillance. The President highlighted the fact that trust in the good faith of government employees is not enough. It is the law that is necessary to “constrain those in power:”

But all of us understand that the standards for government surveillance must be higher. Given the unique power of the state, it is not enough for leaders to say: trust us, we won’t abuse the data we collect. For history has too many examples when that trust has been breached. Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power; it depends upon the law to constrain those in power. Id. 5. Emphasis added. http://www.politico.com/story/2014/01/barack-obama-nsa-speech-transcript- 102315.html.

President Obama reaffirmed his belief that the NSA has never been “cavalier about the civil liberties” of their “fellow” U.S. citizens:

What I did not do is stop these programs wholesale – not only because I felt that they made us more secure; but also because nothing in that initial review, and nothing that I have learned since, indicated that our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens.” Id. 3. Emphasis added.

President Obama tasked AG Holder to work with the Intelligence Community Directors and provide the President with alternative approaches for storing metadata data by March 28, 2014. “They will report back to me with options for alternative approaches before the program comes up for reauthorization on March 28, 2014.” Id. p. 7. Emphasis added. http://www.politico.com/story/2014/01/barack-obama-nsa-speech-transcript-102315.html.

On January 17, 2014, AG Holder responded to President Obama’s January 17, 2014 NSA TSP reform speech by informing the public of the AG’s intent “in the weeks ahead” to work closely with the intelligence community. “In the weeks ahead, the Justice Department will work closely with the intelligence community and other key administration officials to implement the President’s reforms.” http://www.justice.gov/opa/pr/2014/January/14-opa-056.html.

37 On January 17, 2014, DNI Clapper (2010-), the 1991-1995 DIA Director and 2007-2010 DOD Under Secretary for Intelligence, issued his Statement from DNI James R. Clapper on Intelligence Reforms Announced Today by President Obama:

In the coming weeks, we will work with our oversight committees to implement the President’s reforms while we continue to focus on the intelligence challenges facing the United States and our allies.

As intelligence professionals, we have historically preferred to avoid the spotlight, but we know that for the foreseeable future, the public will remain focused on what we do and how we do it. To build on and maintain the trust of the American people and our international partners, we must embrace the President’s call for transparency. Emphasis added. http://www.dni.gov/index.php/newsroom/press-releases/198-press-releases- 2014/1002-statement-from-dni-james-r-clapper-on-intelligence-reforms- announced-today-by-president-obama

The President did not discuss the Review Group’s recommendation that the NSA Director be a civilian. Apparently, the President has rejected this recommendation. “President Obama has decided to keep the National Security Agency and the Pentagon’s cyberwarfare branch under the same command despite concerns that it concentrates too much power in the hands of a single military official responsible for both surveillance and directing a growing arsenal of cyberweapons.” David Sanger and Thom Shanker, Obama To Keep Security Agency and Cyberwarfare Under a Single Commander, NY Times 12-14-13.

President Obama’s January 17, 2004 Presidential Policy Directive-Signals Intelligence Activities (PPD-28), cites to the E.O. 12333. “This directive is not intended to alter the rules applicable to U.S. persons in Executive Order 12333, the Foreign Intelligence Surveillance Act, or other applicable law.” Id. n. 9. Emphasis added. http://www.whitehouse.gov/the-press- office/2014/01/17/presidential-policy-directive-signals-intelligence-activities.

Hence, the importance of the public knowing the Article II “FISA secret law” that is based on the December 4, 1981 E.O. 12333 Top Secret “FISA exempt” NSA TSP. President Obama’s PPD-28 is premised on retaining the present Article II “FISA secret law” that is not known to Article I “Gang of Eight”, or Article II President Obama, or the Article III FISC and Supreme Court. The public should know the Article II “FISA secret law” because if 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” reveal a serial impeachable violation of the “exclusivity provision” of the FISA of 1978, then the public should know whether President Obama fulfills his § 413 (b) of the National Security Act “shall” duty and files a “corrective action” plan to remedy illegal intelligence community activities. See 10-3-13 Review Group Comments § C.

Therefore, IG Horowitz should docket this complaint and conduct a preliminary investigation prior to February 28, 2014. He should read the 1984 and 2004 OLC FISA Memos. He can make his own determination whether they are part of the “Ponzi” scheme of Article II “FISA Secret law” that is not known to President Obama. If so, then President Obama should know this fact whenever the President’s January 17, 2004 PPD-28 is relied upon.

38 P. The February 4, 2014 testimony of DAG Cole at a House Judiciary Committee hearing, Recommendations to Reform FISA Authorities, and his pledge that the DOJ would consult with Congress when it considers 2014 NSA TSP reform legislation On February 4, 2014, the House Judiciary Committee held a hearing: Examining Recommendations to Refor FISA Authorities. DAG James Cole testified and informed the Committee of the President’s goal to work with the Congress in enacting 2014 legislation that will reform the NSA TSP and end § 215 of the Patriot Act NSA meta data program. http://judiciary.house.gov/index.cfm/hearings?ID=F931691A-99CD-44DA-A09B- BC5942D86D63. DAG Cole is OIP Director Pustay’s DOJ “command and control” officer. February 4, 2004 Hearing Panel 1 witnesses were DAG James Cole, Review Group Member Peter Swire, and PCLOB Chairman David Medine. At Hearing Panel 2 the witnesses were Information Technology Industry Council President CEO Dean Garfield, former-Acting AAG of the OLC Steven Bradbury, and Professor David Cole.

DAG Cole informed the Committee that the President intended to end the § 215 Patriot Act meta data program because the government’s holding of the metadata has a “potential for abuse” notwithstanding the fact no one has “identified any intentional misuse” of the metadata:

First, we are examining alternatives to the collection of bulk telephony metadata under Section 215, which the President has said will end as it currently exists. The President has said that the capability that this program was designed to provide is important and must be preserved, but we must find a new approach that does not require the government to hold this bulk metadata. The Section 215 program as currently constituted is subject to an extensive framework of laws and judicial orders and to oversight by all three branches of government designed to prevent abuse. Neither the PCLOB nor the PRG has questioned the rigor of that oversight system. Nor has anyone identified any intentional misuse of the telephony metadata. Nevertheless, we recognize that any time large amounts of data are collected, whether by the government or private companies, there is a potential for misuse, and it will be important that the new approach remain subject to a rigorous oversight regime. Emphasis added. http://www.justice.gov/iso/opa/dag/speeches/2014/dag-speech- 1402041.html

The OLC FOIA requester asserts that DAG Cole’s assertion of the “rigor of the oversight system” is diminished by the fact that there has been no Article I Congressional or Article III FISC or Supreme Court review of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP or the May 24, 1984 Top Secret “OLC Olson FISA Memo” or the March 18, 2011 reclassified Top Secret “OLC Goldsmith FISA Memo.” He also asserts that DAG Cole’s assertion that no one has indentified any intentional misuse of NSA TSA data ignores the fact that OIPR Counsel Baker ratified the CIA’s use of FOIA Exemption 1 and the “Glomar Response” defense to withhold the Robert VII v DOJ “FISC Robert” documents.

DAG Cole reaffirmed the “legality” of the program and cited to 15 FISC Judge decisions as being the “final arbiters of the law” who had reviewed the NSA metadata program:

39 Insofar as the legality of the program is concerned, it is important to remember that the courts—the final arbiters of the law—have repeatedly found the program lawful, including 15 separate judges of the Foreign Intelligence Surveillance Court (FISC) and two district courts. There has been only one contrary district court ruling which is now on appeal. The PCLOB undertook its own analysis of the legality, but its members were unable to agree on whether it was authorized under the statute. Although we continue to believe the program is lawful, we recognize that it has raised significant controversy and legitimate privacy concerns, and as I have said we are working on developing a new approach as the President has directed. Emphasis added. The OLC FOIA requester asserts that DAG Cole’s citation to 15 FISC 2004-2013 decisions highlights the sophistry of making that assertion knowing that the 15 FISC decisions were written without the FISC Judges knowing the details of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP or the May 24, 1984 Top Secret “OLC Olson FISA Memo” or the March 18, 2011 reclassified Top Secret “OLC Goldsmith FISA Memo.” Those 15 FISC decisions authorized the NSA to conduct metadata queries of the 1982-2004 NSA TSP “haystacks” data banks that were never subject to FISC Orders. DAG Cole pledged that DOJ would consult with Congress as the Congress considered legislative proposals for 2014 NSA TSP reforms: We look forward to consulting with Congress as we work to implement the reforms outlined by the President and as you consider various legislative proposals to address these issues. Emphasis added. The OLC FOIA requester asserts that if the DOJ consults in good faith with the Congress, then AG Holder should provide Oversight Committees with an explanation of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP including the whereabouts of the 2014 storage of those “haystacks” data banks. AG Holder should also provide copies of the May 24, 1984 Top Secret “OLC Olson FISA Memo” and March 18, 2011 reclassified Top Secret “OLC Goldsmith FISA Memo.” All 535 Members of Congress should be able to read these OLC documents and make their own determinations whether the two Top Secret OLC FISA Memos contain admissions of serial impeachable violations of § 413 (a) of the National Security Act of 1947, the of the “exclusivity provision” of the FISA of 1978, the domestic military law enforcement prohibitions of the Posse Comitatus Act of 1878, and the Social Security Act. If AG Holder does not provide these NSA TSP facts to the Congressional Oversight Committees, then this is “smoking gun” evidence of the intent of AG Holder and the Intelligence Community Directors to continue to conduct the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP after the 2014 Congressional statutory reforms. DNI Director Clapper (2010-), the 1991-1995 DIA Director and 2007-2010 DOD Under Secretary of Intelligence, NSA Director General Alexander (2005-), DIA Director Lt. General USA Michael Flynn (2012), and FBI Director Comey, the 2003-2005 DAG, know that they are bound to follow AG Holder’s decision as to the continued 2014 viability of the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the March 18, 2011 reclassified Top Secret “OLC Goldsmith FISA Memo.” Hence, the importance of IG Horowitz reviewing OIP Director Pustay’s decision not to docket the December 3, 2013 FOIA request for the release of these two OLC documents.

40 Q. Summary

The Robert v Holz-Robert VII v DOJ-Robert VIII v DOJ, HHS, and SSA-Robert II v CIA and DOJ plaintiff files this complaint with IG Horowitz against OIP Director Pustay, because he believes that OIP Director Pustay knows that the December 3, 2013 OLC FOIA requested May 24, 1984 Top Secret “OLC Olson FISA Memo” and the March 18, 2011 reclassified Top Secret May 6, 2004 “OLC Goldsmith FISA Memo” documents contain “smoking gun” evidence that USG officials and attorneys have “defrauded” President Obama as AG Meese, CIA Director Casey, DOD Secretary Weinberger, and FBI Director Judge Webster had “defrauded” President Reagan re the E.O.12333 Top Secret DIA-CIA-FBI domestic “special activity” that was conducted at IMC. The complainant’s almost incredible allegation can be proven or disproven by HHS IG Horowitz docketing this complaint and conducting a preliminary investigation that is based on his reading the 1984 and 2004 Top Secret OLC FISA Memos.

In defense of OIP Director Pustay, if the complainant’s almost incredible allegations are true, then she is a mere foot soldier in an extremely complicated plan to cover up the 1982-2014 serial impeachable violations of § 413 (a) of the National Security Act of 1947, the “exclusivity provision” of the FISA, the Posse Comitatus Act of 1878 limitations on the military domestic law enforcement, and the Social Security Act 1974 SSI program. The complainant believes that OIP Director Pustay is a patriot who has come to understand in January, 2014 that she has been the dupe of her 1985-2014 “command and control” officers whose faux “Commanders in Chief” have not been Presidents Reagan, Bush, Clinton, Bush, and Obama. OIP Pustay can track the movement of the undocketed December 3, 2013 FOIA request. She knows the name of her “command and control” office who ordered her to take no action on the Robert v Holz-Robert VII v DOJ-Robert VIII v DOJ, HHS, and SSA-Robert II v CIA and DOJ plaintiff’s January 24, 2014 request. As a result, she will not lie to IG Horowitz, or to AG Holder, or to FBI Director Comey as to why the complainant’s FOIA request for OLC FISA Memos was not docketed.

Upon information and belief, at this late date AG Holder does not know that these two 1984 and 2004 Top Secret OLC FISA Memos exist. The Robert v Holz-Robert VII v DOJ- Robert VIII v DOJ, HHS, and SSA-Robert II v CIA and DOJ plaintiff asserts that the 1984 and 2004 Top Secret OLC FISA Memos are connect-the-dots to the Robert VII v DOJ “FISC Robert” documents withheld pursuant to FOIA Exemption 1 and the “Glomar Response” defense. He asserts that these documents contain “smoking gun” evidence of an illegal DIA-CIA- FBI domestic plan to violate Robert’s Fourth Amendment and First Amendment right of access to the Courts. Therefore, AG Holder should be reading the Robert VII v DOJ “FISC Robert” documents to determine whether the NSA and the DOJ have been “cavalier about the civil liberties” of Robert, a/k/a Snowflake 5391 to the DOJ. See 10-3-13 Robert Review Group Comments §§ A, R, S. http://snowflake5391.net/review_group_comments.pdf.

Time is of the essence. President Obama has instructed AG Holder to file by March 28, 2014 his recommendations as to the storage of the NSA TSP data banks. Therefore, the complainant has requested that IG Horowitz docket this complaint or provide an acknowledgment letter by February 28, 2014. This would then provide IG Horowitz with a few weeks to conduct a preliminary investigation to determine whether AG Holder knows of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” domestic surveillance of U.S. citizens’ NSA TSP “haystacks” data banks when he makes his NSA TSP data banks storage recommendation.

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