6/16/15 Robert II V CIA and DOJ Plaintiff's PCLOB

Home , Joseph Carroll (DIA), Kenneth Minihan, Loretta Lynch, Marshall Carter, Unitary executive theory

Charles Robert 441 B. West Broadway Long Beach, New York 11561 516-889-2251 [email protected] Notice PCLOB-2015-01 June 16, 2015 Comment that the PCLOB should recommend that AG Lynch declassify the E.O. 12333 May 24, 1984 Top Secret “OLC Olson FISA Memo” to trigger a public debate on the limits of the President’s Commander in Chief inherent authority to conduct warrantless domestic surveillance of U.S. citizens to protect the nation from enemies

The commenter files this comment pursuant to the PCLOB’s March 23, 2015 Federal Register Notice Request for Public Comments on Activities Under Executive Order 12333. 80 FR No. 55, 15259. https://www.pclob.gov/library/FederalRegister-PCLOB-2015-03-24.pdf. The PCLOB invited public comments to inform the PCLOB on the impact of E.O. 12333 counterterrorism activities on U.S. citizens’ privacy rights and civil liberties:

PCLOB seeks public input to inform the Board’s examination of activities conducted under Executive Order (E.O.) 12333—United States Intelligence Activities. Although the Board recognizes that much information about activities under E.O. 12333 is classified and/or not publicly available, the Board seeks comments regarding any concerns about counterterrorism activities conducted under E.O. 12333 based on the information that is currently unclassified and publicly available, as well as suggestions for questions the PCLOB should ask as part of its inquiry. Id. Emphasis added.

With the May 31, 2015 sunset of Section 215 of the Patriot Act and the June 2, 2015 enactment of the USA Freedom Act, now is the time for the Congress and the public to read AAG of the OLC Theodore Olson’s May 24, 1984 Top Secret FISA Memo sent to AG William French Smith. “Re Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1979.” Therefore, the PCLOB should recommend that AG Loretta Lynch declassify this Top Secret OLC FISA Memo in order to trigger a public debate on the 2015 “FISA secret law” and the limits of the President’s Article II Commander in Chief “inherent authority.” See § 1 below.

The commenter suggests that the PCLOB ask AG Lynch directly whether the May 24, 1984 Top Secret “OLC Olson FISA Memo” continues to be the law that is followed in 2015 after the enactment of the USA Freedom Act. If so, then the PCLOB should ask AG Lynch whether the May 24, 1984 “OLC Olson FISA Memo” determined that the exclusivity provision of the FISA is an “unconstitutional” encroachment on the President’s unlimited Article II Commander in Chief inherent authority to conduct warrantless domestic surveillance of U.S. citizens to protect the nation from its enemies. If AG Lynch decides not to declassify this OLC FISA Memo, then the PCLOB should ask AG Lynch to provide this 1984 OLC FISA Memo to the PCLOB for its in camera review. In this way, the PCLOB can determine for itself whether this OLC FISA Memo is the legal basis for CIA Director Brennan to continue in 2015 to conduct back door warrantless domestic searches of 1982-2015 E.O. 12333 Top Secret FISA exempt NSA TSP servers of “haystacks” of U.S. citizens’ comingled stored content data. See § 2 below.

1 If AG Lynch decides not to declassify the May 24, 1984 Top Secret “OLC Olson FISA Memo,” then the commenter suggests that the PCLOB ask AG Lynch to declassify the September 5, 2014 re-reclassified March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” In this way, the PCLOB can determine whether the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” cites to the May 24, 1984 Top Secret “OLC Olson FISA Memo.” If so, then this would reveal whether AG Holder had adopted the 1984-2008 DOJ policy that the exclusivity provision of the FISA is an “unconstitutional” encroachment on the President’s unlimited Article II Commander in Chief inherent authority to conduct warrantless domestic surveillance of U.S. citizens to protect the nation from enemies. If so, then this raises the issue of whether USG government officials and attorneys continue to “defraud” President Obama re the fact that the 1982-2015 CIA Directors have conducted back door warrantless domestic searches of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data that is now being stored in the Utah Data Center servers without the knowledge of the Congress and the FISC. See § 3 below.

If AG Lynch decides not to declassify the May 24, 1984 Top Secret “OLC Olson FISA Memo,” then the commenter suggests that the PCLOB ask AG Lynch to declassify the July, 2014 Top Secret “OLC Riley v California Memo.” In this way, the PCLOB will learn whether Acting AAG of the OLC Karl Thompson decided that the Supreme Court’s unanimous June 25, 2014 Riley v California holding that the Fourth Amendment applies to a U.S. citizen’s cell phone’s stored content data, does not apply to the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. The “OLC Riley v California Memo” reveals why OIP Director Pustay used the “Glomar Response” defense to deny the commenter’s 2014 FOIA request. With the June 2, 2015 enactment of the USA Freedom Act, the PCLOB should know why the “Glomar Response” was used. See § 4 below.

The commenter suggests that if the PCLOB Members read the May 24, 1984 Top Secret “OLC Olson FISA Memo,” then they can make a recommendation that solves the 2015 Orwellian-Hooveresque conundrum of the post-USA Freedom Act that there continues to be storage of the content of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. The PCLOB could recommend that President Obama issue a new E.O. that includes a “Riley v California FISC warrant” requirement that is the defined basis for Intelligence Community (IC) analysts’ searches of any U.S. persons’ comingled stored content data that is retained in any USG server. This remedy is consistent with DNI Clapper’s January 15, 2015 National Research Council of the National Academies Bulk Collection of Signals Intelligence: Technical Options Report that acknowledges the fact the NSA TSP servers contain both foreign and U.S. persons stored content data that technically cannot be separated. That Report recommended increased civil liberties protections. See § 5 below

The commenter suggests that an amendment to the FISA requiring a “Riley v California FISC warrant,” would strengthen the President’s Article II authority by application of the Youngstown Sheet and Tube Co. v Sawyer, 343 U.S. 579 (1952), standard of the President’s “highest ebb” category. Both Congress and the President would be defining the President’s Article II authority. This would eliminate the need for the President to consider interpreting Riley v California and the USA Freedom Act as requiring DNI Clapper to destroy U.S. citizens’ comingled stored content data that is now being stored by the USG along with the foreign comingled content data. All stored content data could continue to be retained. See § 6 below.

2 The commenter suggests that because the Youngstown standards are a bipartisan check and balance on the President’s authority, the PCLOB should consider requesting that the Public Interest Declassification Board (PIDB) declassify the May 24, 1984 Top Secret “OLC Olson FISA Memo” that explains the “FISA secret law.” On December 8, 2014, the PIDB issued a Supplemental Report: Setting Priorities: An Essential Step in Transforming Declassification. This PIDB report discusses the need for the President and Congress to clarify the declassification standards that should apply to the ever increasing number of classified documents. On June 25, 2015, the PIDB will be holding a public meeting re new techniques to implement a new automatic declassification system. It is to be first tested by application to Presidential Records from President Reagan’s Administration’s classified e-mail system. All of President Reagan’s Administration’s Records, including the e-mails, are now subject to President Obama’s E.O. 13526 § 3.3 Automatic Declassification 25 year standard (1989+25=2014). See § 7 below.

The commenter suggests that the PCLOB apply with 20/20 hindsight former-DOD Secretary Donald Rumsfeld’s February 12, 2002 historical fact analysis prism standard as to “known-known”, “known-unknown”, and “unknown-unknown” facts. President Ford’s 1974- 1975 WH Chief of Staff Donald Rumsfeld understood that when implementing the President’s Article II Commander in Chief inherent authority to protect the nation from enemies, that the President would know “known-known” facts that were “unknown-unknown” facts to the Article I Congress and the Article III Judges. He would become President Ford’s 1975-1977 DOD Secretary and President Bush’s 2001-2006 DOD Secretary. By applying his historical prism, the PCLOB can determine whether after the enactment of the USA Freedom Act, the Article I Congress and Article III Judges, including the FISC and the Supreme Court, should know as “known-known” facts the 1982-2015 “FISA secret law” that the 1982-2015 AGs and FBI Directors have known were “unknown-unknown” facts to Congress and the FISC. See § 8 below.

The commenter respectfully suggests that the PCLOB heed the warning of former-NARA Information Security Oversight Office (ISSO) Director J. William Leonard re the “secret law” that he astutely framed in his testimony to the Senate Judiciary Committee at its April 30, 2008 Secret Law and the Threat to Democratic and Accountable Government hearing. “It is as if Lewis Carroll, George Orwell, and Franz Kafka jointly conspired to come up with the ultimate recipe for unchecked executive power.” Id. Emphasis added. With the sunset of the USA Patriot Act and the enactment of the USA Freedom Act, the PCLOB should recommend the end of the Article II “FISA secret law” that has been the legal basis for the CIA Directors conducting back door warrantless domestic searches from 1982-2015 of the E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. See § 9 below.

The commenter respectfully suggests that the PCLOB read 2002-2004 Assistant CIA General Counsel Radsan’s who “guards the guardians” 2008 article: Sed Quis Cotodiest Ipsos Custsodes: The CIA’s Office of General Counsel? Because CIA General Counsel Carolyn Krass (2014-) was the 2013-2014 Acting AAG of the OLC, she intimately knows the sensitive interrelationship between the CIA General Counsel and the AAG of the OLC. She knows that Congress enacted the USA Freedom Act because Congress did not trust the USG with U.S. citizens’ stored metadata. The PCLOB should ask CIA General Counsel Krass why the 535 Members of Congress should not be able to read the May 24, 1984 Top Secret “OLC Olson FISA Memo” when they consider 2015 FISA amendments to address the “trust” issue of the 1982- 2015 E.O. 12333 ongoing storage of U.S. citizens’ comingled stored content data. § 10 below.

3 The commenter submits that the PCLOB has a duty to learn whether AGs Smith and Meese had “defrauded” President Reagan by not informing President Reagan of the existence and implementation of the May 24, 1984 Top Secret “OLC Olson FISA Memo.” This was to provide the President with a “plausible deniability” defense to the serial impeachable violations of the exclusivity provision of the FISA. If so, then PCLOB has a duty to learn whether AG Holder had “defrauded” President Obama by not informing President Obama of the September 5, 2014 re- reclassified March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” and the July, 2014 “OLC Riley v California Memo.” In order to eliminate a “defrauding” of President Obama issue, the PCLOB should recommend that AG Lynch provide President Obama with copies of the 1984, 2004, and 2014 Top Secret OLC FISA Memos. See § 11 below.

The commenter suggests that the PCLOB consider President Obama’s “shall” duty pursuant to his § 413 (a) of the National Security Act Congressional Notification duty, when the PCLOB reviews 1982-2015 E.O. 12333 counterintelligence activities not reported to the Intelligence Committees. The PCLOB can determine whether Presidents Reagan, Bush, Clinton, Bush and Obama all breached their duty pursuant to § 413 (a) of the National Security Act to report the May 24, 1984 Top Secret “OLC Olson FISA Memo” to the Intelligence Committees. The PCLOB knows that President Obama has a post-USA Freedom Act § 413 (a) of the National Security Act “shall” duty to inform the Intelligence Committees whether the 2015 Article II “FISA secret law” continues to be applied to the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP re U.S. citizens’ stored content data that is not metadata. See § 12 below.

The commenter suggests that the PCLOB consider the President’s “shall” duty pursuant to his § 413 (b) of the National Security Act duty to file a corrective action plan to cure illegal intelligence activities. “The President shall ensure that any illegal intelligence activity is reported promptly to the congressional intelligence committees, as well as any corrective action that has been taken or is planned in connection with such illegal activity.” Emphasis Added. The PCLOB could recommend that President Obama include in his corrective action plan an end to the 1982-2015 CIA Directors’ back door warrantless domestic searches of the E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data and provide a remedy for U.S. citizens who are FISA “aggrieved persons.” See § 13 below.

The commenter has been the plaintiff in FOIA actions from 1985-2015. For thirty years, he has sought a mosaic of documents that prove whether his First and Fourth Amendment rights were violated when he was the target of a 1980s joint HHS-DOJ-FBI “Fraud Against the Government” investigation. In 1984, the DOJ designated the commenter as Snowflake 5391. The joint task force knew that Snowflake 5391 was a CIA-DIA-NSA target of the E.O. 12333 Top Secret “FISA exempt” NSA TSP. The commenter filed FOIA requests seeking documents to connect-the-dots that prove that he had standing to challenge the NSA TSP. He is the plaintiff in the pending Robert II v CIA and DOJ, cv 02-6788 (Seybert, J.) and Robert VIII v DOJ, HHS, and SSA, 439 Fed. Appx 32 (2d Cir. 2011), cert. den. 132 S. Ct. 1549 (2012). His 1985-2015 litigation saga has generated reams of 1985-2015 DOJ EDNY and “main Justice” case file notes and e-mails. Those documents prove whether his almost incredible allegations are true: From 1982-2015 AGs and FBI Directors knew that CIA Directors were violating the exclusivity provision of the FISA without the knowledge of their Presidents. The Robert II v CIA and DOJ plaintiff has presented the same quiet settlement offer to AG Lynch, the successor DOJ co- defendant, that he had presented to 2010-2015 EDNY U.S. Attorney Lynch. See § 14 below.

4 The commenter submits that the PCLOB will learn from reading the May 24, 1984 Top Secret “OLC Olson FISA Memo,” of the existence of a de facto Marbury v Madison, 5 U.S. 1 (Cranch) 137 (1803), “nonacquiescence” policy. “It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is.” Emphasis added. From 1984- 2015 the AGs did not inform the Article III Judges of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP so that the Article II AAGs of the OLC, not the Article III Judges including the Supreme Court, would decide what the Article I law “is.” See § 15 below.

The commenter submits that the PCLOB will learn from reading the May 24, 1984 Top Secret “OLC Olson FISA Memo,” of the existence of a Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 104 S.Ct. 2778 (1984), “nonacquiescence” policy. "If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress." Id. 2781. The 1984-2015 AGs knew the June 25, 1984 Chevron decision governed the May 24, 1984 “OLC Olson FISA Memo.” They classified the document to hide this fact. The PCLOB can decide whether the FISA exclusivity provision is the “unambiguously expressed intent of Congress.” See § 16 below.

The commenter submits that the PCLOB has a duty to learn why EDNY U.S. Attorney Raymond Dearie did not inform the Second Circuit in United States v. Duggan, 743 F.2d 59 (2nd Cir. 1984), of the Article II “FISA secret law” of the May 24, 1984 Top Secret “OLC Olson FISA Memo” prior to the Court’s rendering its August 8, 1984 decision that FISA as applied did not violate the Fourth Amendment. “We conclude that these requirements provide an appropriate balance between the individual's interest in privacy and the government's need to obtain foreign intelligence information, and that FISA does not violate the probable cause requirement of the Fourth Amendment.“ Id. 74. The plaintiff believes the PCLOB will learn that EDNY U.S. Attorney Dearie did not know of the “FISA secret law” because of an EDNY U.S. Attorney stovepipe that bypassed U.S. Attorney Dearie. This was so that he would not learn that CIA Director Casey was conducting back door warrantless domestic surveillance of the 1982 E.O. 12333 Top Secret “FISA exempt” NSA TSP that was not reported to Congress. See § 17 below.

The commenter submits that the PCLOB will learn from reading the May 24, 1984 Top Secret “OLC Olson FISA Memo,” of the existence of a 1985-2015 Mitchell v Forsyth, 105 S.Ct. 2806 (1985), “nonacquiescence” policy. On June 19, 1985, the Supreme Court rejected the theory of AGs Mitchell (1969-1972), Smith (1981-1985), and Edwin Meese (1985-1988) that the Fourth Amendment did not apply to the President’s Article II Commander in Chief inherent authority to conduct good faith warrantless surveillance of U.S. citizens to protect the nation from enemies. “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. 2812. That decision led to “The Bivens Problem” as explained in the March 28, 1986 memo from AAG of the Civil Division Richard Willard to DOJ attorneys. See § 18 below.

The commenter submits that the PCLOB will learn from reading the May 24, 1984 Top Secret “OLC Olson FISA Memo,” of the existence of a 1986-2015 Barrett v. United States, 798 F. 2d 565 (2d Cir. 1986), “nonacquiescence” policy of withholding material facts from Article III Judges. “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. This DOJ policy continues in 2015. See § 19 below.

5 The commenter submits that the PCLOB will learn from reading the May 24, 1984 Top Secret “OLC Olson FISA Memo,” of the existence of a 1989-2015 Pavelic & Le Fore v Marvel Entertainment Group, 110 S. Ct. 456 (1989), “nonacquiescence” policy. USG attorneys have signed pleadings pursuant to FRCP 11 that have not been accurate in order to protect CIA domestic sources and methods. “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. 460. Underline added. This is a timely issue because AG Lynch will be filing FISA petitions in 2015 seeking USA Freedom Act FISC Orders re ending the storage of U.S. citizens’ metadata. AG Lynch will now have to decide whether she has a Pavelic duty to inform the FISC of the fact that CIA Director Brennan continues in 2015 to conduct back door warrantless domestic searches of 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data that is retained in the Utah Data Center servers. See § 20 below.

The commenter submits that the PCLOB will learn from reading the May 24, 1984 Top Secret “OLC Olson FISA Memo,” of the existence of a 1991-2015 Chambers v Nasco, 111 S. Ct. 2123 (1991), “nonacquiescence” policy whereby FRCP 11 signed pleadings have contained false facts. “It is a wrong against the institutions set up to protect and safeguard the public.” Id. 2132 (1991). USG attorneys filed these false pleadings to protect CIA domestic sources and methods. This is a timely issue because AG Lynch has to file 2015 FISA petitions seeking USA Freedom Act FISC Orders re the storage of U.S. citizens’ metadata. She will know the “known- known” fact that the FISC has never been informed that from 1982-2015 CIA Directors have conducted back door warrantless domestic searches of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data in USG servers. The commenter asserts that AG Lynch will not file false FISA petitions. See § 21 below.

The commenter submits that the PCLOB will learn from reading the May 24, 1984 Top Secret “OLC Olson FISA Memo” of the existence of a 2009-2013 Amnesty v. McConnell, 646 F. Supp.2d 633 (SDNY 2009), rev’d, Amnesty v Clapper, 638 F. 3d 118 (2d Cir. 2011), rehearing en banc den., 667 F. 3d 163 (2d Cir. 2011), Amnesty v Clapper, 133 S. Ct. 1138 (2013) “fraud upon the court” policy whereby “known-known” facts were intentionally withheld from the Courts. “We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors.” Id. 1152. The plaintiffs could not satisfy the standing requirements because they did not know that DOJ attorneys intentionally withheld from Article III Judges SDNY Judge John G. Koeltl, the Second Circuit, and the Supreme Court, what they knew as a “known-known” fact: the 1982-2013 CIA Directors had conducted back door warrantless domestic searches of 1982-2013 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data in the USG servers to protect CIA-NSA domestic sources and methods not known to Congress and the FISC. See § 22 below.

The commenter submits that the PCLOB will learn from reading the May 24, 1984 Top Secret “OLC Olson FISA Memo,” that it highlights the importance of the City of Arlington v FCC, 133 S. Ct. 1863 (2013), sparring between Justice Scalia for the majority and Chief Justice Roberts in dissent, re the use of a “fox-in-the-hen house” metaphor in explaining Article III jurisdiction to review an Article II interpretation of a statute. “Those who assert that applying Chevron to “jurisdictional” interpretations ‘leaves the fox in charge of the henhouse’ overlook the reality that a separate category of ‘jurisdictional’ interpretations does not exist.” Id. 1874. The PCLOB can decide whether the 1984-2015 AGs were “foxes-in-the-henhouse.” See § 23 below.

6 The commenter submits that the PCLOB will learn from reading the May 24, 1984 Top Secret “OLC Olson FISA Memo” that it highlights the importance of the May 7, 2015 ACLU v Clapper, 785 F. 3d 787 (2d Cir. 2015), analysis of Section 215 of the USA Patriot Act. Although that statute has now expired, the decision provides a “hiding elephants in mouseholes” metaphor that applies to AAG of the OLC Olson’s 1984 interpretation of the exclusivity provision of the FISA. “Congress…does not alter the fundamentals of a regulatory scheme in vague terms or ancillary provisions—it does not ….hide elephants in mouseholes. “ Id. slip op. 75-76. Unless President Obama believes that Congress did not intend that the exclusivity provision of the FISA means exactly what it says, the USA Freedom Act now frees both AG Lynch and President Obama to confront head on the June, 2015 E.O. 12333 issue of the 1982-2015 AGs having implemented the theory that the President has Article II Commander in Chief inherent authority to conduct warrantless domestic searches of U.S. citizens’ stored content data without any Article I Congressional Oversight or any Article III FISC checks and balances. See § 24 below.

The Robert II v CIA and DOJ-Robert VIII v DOJ, HHS, and SSA plaintiff submits this Volume I White Paper to provide background facts as to the commenter’s knowledge of 1982- 2015 E.O. 12333 intelligence activities and his suggestion that the PCLOB recommend that AG Lynch declassify the May 24, 1984 “OLC Olson FISA Memo.” He is working on Volume II of supporting points that will be keyed to AG Lynch’s response to the plaintiff’s Robert II v CIA and DOJ Summary Judgment Motion. It is anticipated that AG Lynch will have a formal Robert II v CIA and DOJ response by the end of the summer of 2015. Therefore, the commenter’s Volume II White Paper is expected to be ready for submission to the PCLOB in the fall of 2015.

PCLOB Member Rachel Brand was the 2001-2002 Associate Counsel to the President, the 2003-2005 Principal Deputy AAG of the Office of Legal Policy (OLP), and the 2005-2007 AAG for the OLP. PCLOB Member Elisebeth Collins was the 2008-2009 AAG of the OLP after being an OLP DAAG, OLP Senior Counsel, and Counselor to AAG of the OLP Branch. As a result, they both understand the significance of the declassification of the May 24, 1984 Top Secret “OLC Olson FISA Memo.” They know this would permit PCLOB Chairman David Medine, Member James Dempsey, and Member Patricia Wald to read this historic OLC document prior to the PCLOB making its E.O. 12333 recommendations to President Obama.

The June 25, 2014 unanimous Riley v California decision, the May 31, 2015 sunset of the USA Patriot Act, and the June 2, 2015 enactment of the USA Freedom Act, liberate 2015 USG attorney-patriots from continuing to be legal slaves to the theory that the President has Article II Commander in Chief inherent authority to conduct warrantless domestic searches of the 1982- 2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP 12333 TSP “haystacks” of U.S. citizens’ comingled stored content data in USG servers. This has been to protect CIA-NSA domestic sources and methods not known to the Congress or to the FISC. A PCLOB recommendation that there be a FISA Amendment that requires a “Riley v California FISC warrant” before any Intelligence Community analysts search any USG server that contains U.S. citizens’ comingled stored content data, provides a reasonable solution to the dangers of the abuses of the present 2015 Orwellian-Hooveresque E.O. 12333 CIA warrantless domestic searches of U.S. citizens’ comingled stored content data in the 2015 Utah Data Center or any other USG servers.

Thank you for the invitation to file comments “regarding any concerns about counterterrorism activities conducted under E.O. 12333.” This has been my concern for 30 years.

Table of Contents Section Page No.

Executive Summary ………………………………………………………………………. 1 § 1 The declassification of the May 24, 1984 AAG of the OLC Olson FISA Memo…… 9 § 2 The Top Secret May 24, 1984 Top Secret “OLC Olson FISA Memo” …………….. 15 § 3 The September 5, 2014 re-reclassified May 6, 2004 “OLC Goldsmith FISA Memo”. 21 § 4 The July, 2014 Top Secret July, 2014 “OLC Riley v California Memo” …………… 26 § 5 The suggested new E.O. with a “Riley v California FISC warrant” requirement …... 31 § 6 The suggested legislation to trigger the Youngstown “highest ebb” category ……… 35 § 7 The 12-8-14 PIDB Supplemental Report re the declassification of documents …….. 38 § 8 The 2-12-02 Secretary Rumsfeld “known-known” fact historical prism ……………. 42 § 9 The 4-30-08 Judiciary Committee testimony of former- ISSO Director Leonard …… 46 § 10 The 2008 Radson CIA General Counsel “who guards the guardians” article ……….. 47 § 11 The “defrauding” of Presidents Reagan and Obama ………………………………… 49 § 12 The President’s § 413 (a) of the National Security Act “shall” notification duty …… 53 § 13 The President’s § 413 (b) “shall” file a “corrective plan” duty ……………………… 55 § 14 The Robert II v CIA and DOJ and Robert VIII v DOJ, HHS, and SSA plaintiff …….. 57 § 15 The 1982-2015 de facto Marbury v Madison “nonacquiescence” policy ……………. 65 § 16 The 1984-2014 de facto Chevron “nonacquiescence” policy………………………… 67 § 17 The 8-9-84 U.S. v Duggan decision and the 5-24-84 “OLC Olson FISA Memo”….. 70 § 18 The 1985 Mitchell v Forsyth “nonacquiescence” policy and “The Bivens Problem”… 74 § 19 The 1986-2015 de facto Barrett v U.S. “nonacquiescence” policy ………………… 77 § 20 The 1989-2015 de facto Pavelic “nonacquiescence” policy re FRCP 11 …………… 81 § 21 The 1991-2015 de facto Chambers v Nasco “nonacquiescence” policy ………… 84 § 22 The 2009-2013 Amnesty v Clapper “fraud upon the court” re “FISA secret law” 86 § 23 The 3-20-13 City of Arlington v FCC “foxes in the henhouse” dicta sparring …… 88 § 24 The 5-7-15 ACLU v Clapper “hide elephants in mouseholes” standard …………….. 92 § 25 Summary ……………………………………………………………………………… 95

8 1. The effect of the May 31, 2015 sunset of USA Patriot Act and the June 2, 2015 enactment of the USA Freedom Act on the E.O. 12333 May 24, 1984 Top Secret “OLC Olson FISA Memo” that has never been subject to Article I, Article II, and Article III checks and balances, and the serial violation of the exclusivity provision of the FISA

On May 24, 1984, AAG of the OLC Theodore Olson issued the Top Secret OLC FISA Memo entitled “Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1979.” This remains a Top Secret OLC FISA Memo. The public learned of this Top Secret OLC FISA Memo from a Snowden leaked Top Secret November 20, 2007 “Memorandum for the Attorney General” from AAG of the National Security Division (NSD) Kenneth Wainstein to AG Michael Mukasey (November 7, 2007-January 20, 2009) with a copy to OLC Principal DAAG Stephen Bradbury. Former-AAG of the NSD Wainstein cited to a quote from the May 24, 1984 “OLC Olson FISA Memo” that established the “FISA secret law.” If data was “constitutionally” seized, then the Fourth Amendment does not apply to U.S. citizens’ seized data. “Traditional Fourth Amendment analysis holds that once evidence is constitutionally seized, its dissemination or subsequent use raises no additional Fourth Amendment question.” Emphasis added. See § 2 below.

On May 31, 2015, Section 215 of the 2001 USA Patriot Act sunset. This is an important fact because any “bootstrap” argument that the USA Patriot Act was the legal authority to “grandfather in” the May 24, 1984 Top Secret “OLC Olson FISA Memo” is now moot. This is timely fact because the May 24, 1984 Top Secret “OLC Olson FISA Memo” has been the legal authority for the 1984-2015 CIA Directors conducting back door warrantless domestic searches of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data that is retained in USG servers without the knowledge of Article I Intelligence Committees and/or the Article III FISC. See § 13 below.

In his Top Secret May 24, 1984 OLC FISA Memo, AAG of the OLC Olson decided that the exclusivity provision of the FISA was an “unconstitutional” encroachment on the President’s unlimited Article II Commander in Chief inherent authority to conduct warrantless domestic surveillance of U.S. citizens if this was necessary to protect the nation from enemies. This was a “Past is Prologue” OLC FISA Memo because it provided a legal basis for DOD Secretary Casper Weinberger (1981-1987), NSA Director Lt. General Faurer (1981-1985), Defense Intelligence Agency (DIA) Director Lt. General USA James Williams (1981-1985), CIA Director William Casey (1981-1986), and FBI Director Judge William Webster (1978-1987) to conduct warrantless searches of foreign and US persons’ comingled stored content data. AAG of the OLC Olson determined that the comingled data was “constitutionally” seized pursuant to the President’s unlimited Article II Commander in Chief duty to protect the nation from enemies.

9 AAG of the OLC Olson’s May 24, 1984 Top Secret OLC FISA Memo solved the technical problem caused by the use of the Defense Advanced Research Projects Agency DARPA’s extraordinary technique of collecting and storing electronic data that resulted in “dragnetting” the comingled foreign and domestic content data. He knew that DARPA could not separate the stored foreign content data from U.S. citizens’ content data. He also knew that the NSA analysts used “minimization” standards to address the Fourth Amendment issue of USG officials having “dragnet” access to U.S. persons’ stored content data. When NSA analysts were “listening” to a foreign persons content data and incidentally “listened” to a U.S. persons’ content data, they were immediately to end “listening” to the U.S. persons’ content data. However, it was necessary to continue to store the U.S. persons’ data because it was comingled in the E.O. 12333 “haystacks” of data that would be necessary for future searches for terrorists.

On December 3, 1982, DOD Secretary Weinberger and AG William French Smith issued Mastercopy DOD 5240 1 R Procedures Governing the Activities of DOD Intelligence Components That Affect United States Persons. These were the DOD minimization standards that were to be applied when the NSA Directors conducted “incidental” warrantless surveillance of U.S. citizens’ data. The December 3, 1982 Mastercopy DOD 5240 Foreword states:

This DOD regulation sets forth procedures governing the activities of DOD intelligence components that affect United States persons. It implements DoD Directive 5240.1, and replaces the November 30, 1979 version of DoD Regulation 5240.1-R. It is applicable to all DoD intelligence components.

Executive Order 12333 "United States Intelligence Activities" stipulates that certain activities of intelligence components that affect U.S. persons by governed by procedures issued by the agency head and approved by the Attorney General. Specifically, procedures 1 through 10, as well as appendix A, herein, requiring approval by the attorney general, contain further guidance to DoD components in implementing Executive Order 12333 as well as Executive Order 12334,"President's Intelligence Oversight Board." Id. 1. Emphasis added. http://dtic.mil/whs/directives/corres/pdf/524001r.pdf

AAG of the OLC Olson knew that the exclusivity provision of the FISA required that the FISC issue a warrant prior to any electronic surveillance of U.S. citizens. He also knew that the FISC had no jurisdiction over the President’s E.O 12333 surveillance of foreign persons.

As a result, AAG of the OLC Olson concluded that since AG Smith had approved the DOD 5240 minimization standards, that this was a reasonable Article II check and balance on any Intelligence Community (IC) misuse of U.S. persons’ comingled stored content information secured from NSA analysts searching the E.O. 12333 Top Secret “FISA exempt” NSA TSP servers. However, upon information and belief, AAG of the OLC Olson did not know that President Reagan was not informed that CIA Director Casey’s CIA analysts conducted back door warrantless domestic searches of the E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data without any Presidential § 413 (a) of the National Security Act “shall” Congressional Notification of this fact. See §§ 12, 13 below.

10 Congress created the bi-partisan PCLOB to be an Article II agency that is tasked to review and analyze executive branch actions taken to protect the nation from terrorism:

The Board is an independent, bipartisan agency within the executive branch established by the Implementing Recommendations of the 9/11 Commission Act, Pub. L. 110-53, signed into law in August 2007. Comprised of four part-time members and a full-time chairman, the Board is vested with two fundamental authorities: (1) To review and analyze actions the executive branch takes to protect the Nation from terrorism, ensuring the need for such actions is balanced with the need to protect privacy and civil liberties and (2) To ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism. Id. Emphasis added. https://www.pclob.gov/

On August 22, 2013, PCLOB Chairman David Medine sent a letter to AG Holder and DNI Director Clapper discussing the E.O. 12333 intelligence community minimization standards that had had been applied for the past 31 years (1982-2013) based on the 1981 E.O. 12333:

The Privacy and Civil Liberties Oversight Board has learned that key procedures that form the guidelines to protect “information concerning United States persons” have not comprehensively been updated, in some case in almost three decades, despite dramatic changes in information use and technology. Accordingly, the Board requests that both the Attorney General and the Director of National Intelligence work together to focus the attention necessary to update each element of the Intelligence Community’s procedures to collect, retain and disseminate U.S. person’s information. With updating, these procedures could appropriately capture both the evolution of technology and the roles and capabilities of the Intelligence Community since 9/11. Specifically, the Board would appreciate receiving by October 31, 2013, an agency-by- agency schedule establishing time frame for updating each agency’s guidelines. In the meantime, the Board would appreciate a briefing on the status of the guidelines and the process for reviewing and up dating them. Emphasis added. https://www.pclob.gov/library/Letter-DNI_AG_12333_Guidelines.pdf

On January 15, 2015, DNI James Clapper informed President Obama of the National Research Council of the National Academies’ Bulk Collection of Signals Intelligence: Technical Options Report. http://www.nap.edu/catalog/19414/bulk-collection-of-signals-intelligence- technical-options. This Report confirmed what AAG of the OLC Olson knew on May 24, 1984 that U.S. citizens’ stored content data was comingled with foreign persons stored content data. However, this Report provided a solution for President Obama to solve his FISA problem as to the retention of the content of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP servers that contain U.S. citizens’ comingled stored content data transferred into the Utah Data Center servers. This Report has now taken on greater importance because of the June 2, 2015 enactment of the USA Freedom Act that statutorily ended the USG storage of metadata, but not of 1982-2015 E.O. 12333 U.S. citizens’ comingled stored content data. See §§ 11, 13 below.

11 DNI Clapper acknowledged the Report’s conclusion that it was not technically feasible to avoid the need for the USG to continue to retain bulk collection of content data. He explained that he was reviewing the suggested steps to reduce privacy and civil liberties violations:

The Director of National Intelligence requested the National Academies of Sciences to assess, as directed by the President, the technical feasibility of creating software-based alternatives that would allow the Intelligence Community to avoid the need for bulk collection. The January 2015 report, Bulk Collection of Signals Intelligence: Technical Options, is publicly available and concludes that there is no software-based alternatives that will provide a complete substitute for bulk collection in the detection of some national security threats, but the report suggested other steps to reduce privacy and civil liberties risk and improve oversight of bulk collection activities. We are currently reviewing how to address these important findings. Id. Emphasis added. http://icontherecord.tumblr.com/ppd-28/2015/seeking-independent-advice

On June 2, 2015, President Obama signed the USA Freedom Act. This statute ends the USG’s storage of metadata. However, it does not address the issue of the USG’s continued storage of 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. DNI Director Clapper has not informed the public whether he recommended that the President adopt the recommendations made in the National Academies of Science Bulk collection of Signals Intelligence: Technical Options to reduce privacy and civil liberties violations caused by the bulk storage of U.S. citizens’ content data.

On June 2, 2015, after the Senate’s passage of the USA Freedom Act, President Obama issued a “Statement by the President on the USA FREEDOM Act.” President Obama informed the public of the retention of needed national security tools. However, the President noted the fact that “additional transparency measures” were included in the USA Freedom Act that had not been in the USA Patriot Act: For the past eighteen months, I have called for reforms that better safeguard the privacy and civil liberties of the American people while ensuring our national security officials retain tools important to keeping Americans safe. That is why, today, I welcome the Senate’s passage of the USA FREEDOM Act, which I will sign when it reaches my desk. After a needless delay and inexcusable lapse in important national security authorities, my Administration will work expeditiously to ensure our national security professionals again have the full set of vital tools they need to continue protecting the country. Just as important, enactment of this legislation will strengthen civil liberty safeguards and provide greater public confidence in these programs, including by prohibiting bulk collection through the use of Section 215, FISA pen registers, and National Security Letters and by providing the American people with additional transparency measures. Id. Emphasis added. https://www.whitehouse.gov/the-press-office/2015/06/02/statement- president-usa-freedom-act

12 Hence, the importance of the declassification of the May 24, 1984 Top Secret “OLC Olson FISA Memo.” The PCLOB, 535 Members of Congress, the FISC, and the public should all know whether DNI Director Clapper, DOD Secretary Ashton Carter, CIA Director John Brennan, and FBI Director James Comey have recommended that the “FISA secret law” continue to be implemented in June, 2015 as explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo.” They all know why this May 24, 1984 Top Secret OLC FISA Memo has never been subject to review by Article I Congressional Oversight Committees, Article II Intelligence Community Inspector Generals or Article III Judges that include the FISC, the Circuit Courts, and the Supreme Court. Thus, pursuant to Congressional intent upon establishing the PCLOB, the Members have a delicate and sensitive decision to make if they decide to recommend the declassification of the May 24, 1984 Top Secret “OLC Olson FISA Memo.”

Upon information and belief, President Obama, a former-Constitutional Law Professor, does not know of the May 24, 1984 “OLC Olson FISA Memo” because this would mean that he too has adopted the theory that the President has unlimited Article II Commander in Chief inherent authority to conduct warrantless domestic surveillance of U.S. citizens if this is necessary to protect the nation from its enemies. If President Obama does not know of the May 24, 1984 Top Secret “OLC Olson FISA Memo,” then this is evidence that AG Holder has “defrauded ” President Obama as AGs Smith and Meese had “defrauded” President Reagan. This was to provide their Presidents with a “plausible deniability” defenses to the serial impeachable violations of the “exclusivity provision” of the FISA, the § 413 (a) of the National Security Act “shall” Congressional Notification requirement, the Posse Comitatus Act of 1878 (PCA) limitations on military domestic law enforcement, and the Social Security Act as to the off-OMB Budget funding source for the “immaculate construction” of the NSA TSP “FISA exempt” servers that could not be funded with classified OMB Budget audited funds. See § 11 below.

The commenter is suggesting to the PCLOB there is a simple 2015 remedy for the fact the E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data cannot be separated from the NSA TSP “haystacks” of foreign content data. The PCLOB can recommend that the President issue a revised E.O. that states that a “Riley v California FISC warrant” is required whenever an IC analyst conducts a search of the 1982-2015 E.O. 12333 NSA TSP servers that contain U.S. citizens’ comingled stored content data. This remedy would eliminate the need to tamper with the irreplaceable 1982-2015 E.O. 12333 Top Secret NSA TSP comingled foreign and U.S. persons’ stored content data. See § 5 below.

However, in order to recommend this simple 2015 remedy, it will be necessary for AG Lynch to declassify the May 24, 1984 Top Secret “OLC Olson FISA Memo” in order that all five PCLOB Board Members can read this Top Secret OLC FISA Memo. However, upon information and belief, at this late date AG Lynch, the 1999-2001 and 1999-2001 EDNY U.S. Attorney, does not know of the May 24, 1984 Top Secret “OLC Olson FISA Memo.” If not, then this is because Acting Associate AG Stuart Delery has “defrauded” AG Lynch in order to provide AG Lynch with a “plausible deniability” defense to the 2015 serial impeachable violations of the exclusivity provision of the FISA, the § 413 (a) of the National Security Act “shall” Congressional Notification requirement, the Posse Comitatus Act of 1878 (PCA) limitations on military domestic law enforcement, and the Social Security Act. If the PCLOB requests that AG Lynch provide a copy of the May 24, 1984 Top Secret “OLC Olson FISA Memo,” then AG Lynch will read this FISA Memo and learn its contents. See §§ 14, 18 below.

13 Upon information and belief, PCLOB Member Rachel Brand has read the May 24, 1984 Top Secret “OLC Olson FISA Memo” but has signed a nondisclosure agreement not to reveal directly or indirectly its contents. She was a 2001-2002 Associate Counsel to President Bush, the 2003-2005 Principal Deputy AAG of the Office of Legal Policy (OLP), and the 2005-2007 AAG for the OLP. As a result, in order to perform her duty as the AAG of the OLP, she had to have read not only the May 24, 1984 Top Secret “OLC Olson FISA Memo,” but also the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” that would be declassified and reclassified on March 18, 2011 and then declassified and re-reclassified on September 5, 2014. See § 3 below.

Upon information and belief, PCLOB Member Elisebeth Collins has read the May 24, 1984 Top Secret “OLC Olson FISA Memo” but has signed a nondisclosure agreement not to reveal directly or indirectly its contents. She was the OLP DAAG, OLP Senior Counsel, and Counselor to AAG of the OLP Branch before becoming the 2008-2009 AAG of the Office of Legal Policy (OLP). As a result, in order to perform her duty as the AAG of the OLP, she too had to have read not only the May 24, 1984 Top Secret “OLC Olson FISA Memo,” but also the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” that was declassified and reclassified on March 18, 2011 and then declassified and re-reclassified on September 5, 2014. See § 3 below.

Upon information and belief, PCLOB Chairman David Medine, Member James Dempsey, and Member Patricia Wald do not have clearance to read the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” that was declassified and reclassified on March 18, 2011 and declassified and then declassified and re-reclassified on September 5, 2014. Hence, the suggestion that the PCLOB recommend that AG Lynch declassify both of these Top Secret OLC FISA Memos for the PCLOB Members subject to all five PCLOB Members signing 2015 nondisclosure agreements.

After AG Lynch reads the May 24, 1984 Top Secret “OLC Olson FISA Memo” and consults with President Obama’s Assistant to the President for Homeland Security and Counterterrorism Lisa Monaco, she will know whether President Obama does not know that CIA Director Brennan continues in June, 2015 to conduct back door warrantless searches of this 1982-2015 E.O.12333 Top Secret “FISA exempt” NSA TSP data in USG servers. On March 8, 2013, Assistant to the President for Homeland Security and Counterterrorism Monaco succeeded 2009-2013 Assistant to the President for Homeland Security and Counterterrorism John Brennan when he became the CIA Director. She had been the 1998-2001 Counsel to AG Reno, 2001-2005 AUSA Special Prosecutor 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, 2009 Associate DAG, 2010 Acting Principal Associate DAG, and 2011-2013 AAG for the National Security Division. As a result, she knows of the 1982-2015 Article II Top Secret “FISA secret law” that is explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the September 5, 2014 re-reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” See §§ 2, 11 below.

The PCLOB knows AG Lynch has a duty to recommend to President Obama a legal remedy to the Top Secret “FISA secret law” if it continues in June, 2015 to be the basis for CIA Director Brennan conducting back door warrantless domestic searches of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP comingled foreign and U.S. persons’ stored content data. Therefore, the PCLOB’s recommendation that AG Lynch declassify the May 24, 1984 Top Secret “OLC Olson FISA Memo” is the first step that leads to the commenter’s simple remedy.

14 2. The May 24, 1984 Top Secret “OLC Olson FISA Memo” reveals the Top Secret Article II “FISA secret law” that continues to be implemented after the enactment of the US Freedom Act whereby the President continues in 2015 to have Article II Commander in Chief inherent authority to conduct domestic warrantless surveillance of U.S. citizens

On May 24, 1984, AAG of the OLC Theodore Olson, who would become an original PCLOB Member (2006-2008), issued the “Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1979” Memorandum. AG Smith designated the “OLC Olson FISA Memo” as a Top Secret OLC Memo. The commenter cited President Obama’s 2013 Review Group to this May 24, 1984 Top Secret “OLC FISA Memo in his October 3, 2013 Robert Review Group Comments. See § D. http://snowflake5391.net/review_group_comments.pdf.

The May 24, 1984 Top Secret “OLC Olson FISA Memo” was identified in an Edward Snowden leaked document. The November 20, 2007 Memorandum for the Attorney General from AAG of the National Security Division (NSD) Kenneth Wainstein to AG Michael Mukasey (November 7, 2007-January 20, 2009) was copied to Acting AAG of the OLC DAAG Stephen Bradbury. AAG of the NSD Wainstein cites to the OLC Memo in his November 20, 2007 Memo:

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.

15 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. 4, n. 4. Underline added. http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB436/docs/EBB-017.pdf

The commenter asserts that from 1984-2014 all of the 1984-2014 AGs, DOD Secretaries, CIA Directors, and FBI Directors knew of the existence of the May 24, 1984 Top Secret “OLC Olson FISA Memo.” They all knew this was the “elephant-in-the-room” whenever the Congress considered legislation to amend the FISA of 1978. They all knew that the 535 Members of Congress did not know of the Top Secret “FISA secret law” that is explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo.” They all knew that Congressional Intelligence Committees did not know of this Top Secret OLC FISA Memo because Presidents Reagan, Bush, Clinton, Bush, and Obama did not comply with 50 U.S.C. § 413 (a) Reports to Congressional committees of intelligence activities and anticipated activities. “(1) The President shall ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity as required by this subchapter.” Id. Emphasis added. See § 12 below.

The commenter is suggesting that the PCLOB request that AG Lynch declassify the May 24, 1984 Top Secret “OLC Olson FISA Memo.” He believes AG Lynch will prudently seek the assistance of the Public Interest Declassification Board (PIDB). On December 8, 2014, the PIDB issued a Supplemental Report: Setting Priorities” An Essential Step in Transforming Declassification. http://www.archives.gov/declassification/pidb/recommendations/setting- priorities.pdf. This PIDB report discusses the need for President Obama and the Congress to clarify the declassification standards that should apply to the ever increasing number of classified documents. This includes the declassification standards that would be applied to OLC Memos.

The PIDB listed its “Functions” on its website. This include advising the President on the declassification of documents that affect Executive Orders have a public interest:  Advises and provides recommendations to the President and other executive branch officials on the systematic, thorough, coordinated, and comprehensive identification, collection, review for declassification, and release of declassified records and materials of archival value, including records and materials of extraordinary public interest.

 Promotes the fullest possible public access to a thorough, accurate, and reliable documentary record of significant U.S. national security decisions and activities in order to: support the oversight and legislative functions of Congress; support the policymaking role of the executive branch; respond to the public interest on national security matters; and promote reliable historical analysis and new avenues of historical study in national

 Advises the President and other executive branch officials on policies deriving from Executive Orders regarding the classification and declassification of national security information.

16  Reviews and makes recommendations to the President with respect to any Congressional request, made by the committee of jurisdiction, to declassify certain records or to reconsider a rejection to declassify specific records. Emphasis added. http://www.archives.gov/declassification/pidb/index.html#about Acting PIDB Chairman Skaggs’ cover letter to President Obama explained the PIDB was providing recommendations to the President for transformational declassification reforms:

We came to realize that prioritizing declassification efforts by important topic areas would be a most effective and efficient way to carry out the PIDB’s open government and transparency objectives. After studying declassification practices in use at agencies and at the National Declassification Center (NDC), we concluded that a coordinated government-wide policy focused on declassifying historically significant records with greatest interest to the public made most sense. The Setting Priorities report lays out the case for that approach. Declassification policy remains virtually unchanged since automatic declassification started almost three decades ago. We credit automatic declassification for driving the declassification of over a billion pages of records since then. Id. December 8, 2014 Report at iv. Emphasis added.

One of the PIDB Members is Admiral William Studeman, Ret. He was the 1988-1992 NSA Director and the 1992-1995 CIA Deputy Director when Director Clapper was the 1991- 1995 DIA Director. As a result, he knows that DNI Clapper knows whether CIA Directors William Casey (1981-1987), Judge William Webster (1987-1991), Robert Gates (1991-1993), James Woolsey (1993-1995), John Deutch (1995-1996), George Tenet (1997-2004), Porter Goss (2004-2005), General Michael Hayden (2006-2009), Leon Panetta (2009-2011), David Petraeus (2011-2012), and John Brennan (2013-) have all conducted back door warrantless domestic searches of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. If so, then he knows that DNI Clapper knows that the legal basis for this 1982-2015 E.O. 12333 Top Secret CIA domestic intelligence activity has been the May 24, 1984 Top Secret “OLC Olson FISA Memo.”

On May 18, 2012, the Speaker of the House John Boehner had appointed Admiral Studeman as a PIDB Member. This is an important fact because Speaker Boehner supported the USA Freedom Act which statutorily ended the USG storage of metadata but not content data.

One of the PIDB Members is former-AAG of the NSD Kenneth Wainstein. He is the author of the November 20, 2007 Memorandum for the Attorney General. He cited to the May 24, 1984 Top Secret “OLC Olson FISA Memo“ that he knew explained the legal basis for the 1982-2007 CIA Directors conducting back door warrantless domestic searches of the 1982- 2007 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. He was the 2001 EOUSA Director, 2002 FBI Director Mueller’s FBI General Counsel, 2003-2005 FBI Director Mueller Chief of Staff, 2006-2008 first AG of the National Security Division, and 2008 President Bush Homeland Security Adviser. He knows the 2015 “Past is Prologue” significance of the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” See § 3 below.

17 On September 17, 2013, the then-Minority Leader of the Senate Mitch McConnell had appointed Kenneth Wainstein. This is an important fact because Majority Leader McConnell had opposed the USA Freedom Act which statutorily ended the USG storage of metadata.

Therefore, if the PCLOB asks AG Lynch to declassify the May 24, 1984 Top Secret “OLC Olson FISA Memo,” then she may seek the guidance of the PIDB. If so, then, needless to say, there will be a robust post-USA Freedom Act PIDB discussion of the declassification of the May 24, 1984 “Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1979” FISA Memo.

A robust PIDB discussion of the May 24, 1984 Top Secret “OLC Olson FISA Memo” is timely because the PIDB has informed the public of its June 25, 2015 public meeting to discuss a pilot automatic declassification project that can be applied to 1984 CIA and NSA documents:

The Public Interest Declassification Board (PIDB) will host a public meeting to discuss the recommendations included in its Report to the President on Transforming the Security Classification System, and its recommendation to employ existing technologies and develop and pilot new methods to modernize classification and declassification. The meeting will include a discussion of the technology study the PIDB is conducting in collaboration with Executive Branch agencies. There will be a briefing on the results of technology pilot projects completed at the Center for Content Understanding at the Applied Research Laboratories (UT: Austin), co- sponsored by the Central Intelligence Agency and the National Archives. In his Second Open Government National Action Plan, the President directed the CIA and the National Archives to pilot new tools to provide classification reviewers with search capability for unstructured data and automate initial document analysis, beginning with the Presidential Records from the Reagan Administration’s classified email system. The Archivist of the United States, David S. Ferriero will offer opening remarks, a senior official from the White House will give comments on Open Government Initiatives and a research scientist from the Center for Content Understanding will provide a briefing on the pilot projects. Id. Emphasis added. http://www.archives.gov/declassification/pidb/

On December 3, 2013, the commenter, as the Robert II v CIA and DOJ-Robert VIII v DOJ, HHS, and SSA plaintiff, had filed a FOIA request for the release of the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the May 6, 2004 OLC Top Secret “OLC Goldsmith FISA Memo.” The plaintiff asserted that the May 24, 1984 OLC FISA Memo should be subject to President Obama’s December 29, 2009 E.O. 13256 § 3.3, Automatic Declassification” 25 year standard (1984+25=2009). “(a) …all classified records that (1) are more than 25 years old and (2) have been determined to have permanent historical value under title 44, United States Code, shall be automatically declassified whether or not the records have been reviewed.” The plaintiff also asserted that this Top Secret OLC FISA Memo would reveal to the public whether there had been 1984-2013 serial impeachable violations of the exclusivity provision of the FISA of 1978 and § 413 (a) of the National Security Act. See 12-3-03 OLC WP §§ C, D, M, T, U, V, Z, AA. http://snowflake5391.net/12_3_13_FISA_MEMOS.pdf. See also § 1 above and § 14 below.

18 The Office of Information and Privacy (OIP) Director Melanie Pustay did not docket and process the FOIA request. Upon information and belief, OIPR Director Pustay consulted with Acting AAG of the OLC Caroline Krass re her decision not to process the FOIA request. On February 7, 2014, the plaintiff filed a formal complaint with DOJ IG Michael Horowitz against OIP Director Pustay for not processing that December 3, 2013 FOIA request and for acting in concert to “defraud” President Obama by preventing the President from knowing of the Top Secret “OLC FISA law.” http://www.snowflake5391.net/WP_IG.pdf. That formal DOJ IG complaint was also not docketed or processed. Upon information and belief, Acting Associate AG Stuart Delery knows whether that decision was to protect the CIA sources and methods. If so, then he knows this provided President Obama with a “plausible deniability” defense to the serial impeachable violations of the “exclusivity provision” of the FISA, § 413 (a) of the National Security Act, the Posse Comitatus Act of 1878 (PCA) limitations on military domestic law enforcement, and the Social Security Act. See § 1 above and §§ 3, 4, 11, 14 below.

As of the date of this WP, DOJ IG Horowitz’ staff continues not to docket and process plaintiff’s complaint against OIP Director Pustay for not processing his December 3, 2013 FOIA request for the May 24, 1984 Top Secret “OLC Olson FISA Memo.” The plaintiff asserts that the PCLOB should know why the commenter’s DOJ IG complaint was never docketed.

On January 28, 2015, the Senate Judiciary Committee held the confirmation hearing for President Obama’s AG Nominee Lynch. Senator Diane Feinstein specifically asked the Nominee whether she would provide the Senate Judiciary Committee with a copy of AAG of the OLC Theodore Olson’s “seminal” 1984 OLC E.O. 12333 Memo. Nominee AG Lynch responded by informing the Senator that if she is confirmed, then she would “commit to you to work with this Committee, as well as the Intelligence Committee.” Upon information and belief, AG Lynch has not yet consulted with her DOJ “chain of command” staff and has not yet decided whether to provide a copy of the May 24, 1984 Top Secret “OLC Olson FISA Memo” to the Committee.

Senator Feinstein’s question and the response were isolated by C-Span at 1:20 of the hearing. The commenter asserts that the PCLOB has a duty to view this critical Q and A:

Senator Feinstein: As a Member of the Judiciary and Intelligence, we have sought access to opinions called OLC opinions. These opinions often represent the best and most comprehensive expression of the legal basis for intelligence activities. Congress is actually charged with overseeing. So without these opinions, you don’t really know the legal basis upon which an administration has made—has based certain activities, and it’s been very frustrating to us. In particular, executive branch officials have previously advised the Committee of the existence of a seminal opinion written by Ted Olson decades ago governing the conduct of collection activities under Executive Order 12333. My question is can we have your commitment that you will made a copy of this OLC opinion available to Members of both Intelligence and Judiciary Committee? Probably your first tough question.

AG Nominee Lynch: I think with respect to the OLC opinions, you are correct, they represent a discussion and an analysis of legal issues on a wide variety of subjects. When a variety of agencies come to the Department for

19 that independent advice that we must provide them, certainly I’m not aware of the discussions had about this previous opinion in terms of providing it. Certainly I will commit to you to work with this Committee, as well as the Intelligence Committee, to find a way to provide the information that you need consistent with Departments own law enforcement and investigative priorities. Id. Emphasis added. http://www.c-span.org/video/?c4525445/sen-feinstein-loretta-lynch-make- surveillance-olc-memos-available-congress.

On April 25, 2015, DNI Clapper posted on the IC on the Record three volumes of declassified and reclassified Inspector General Reports re the five Intelligence Community (IC) IGs July 10, 2009 investigation of the NSA TSP. DNI Clapper explained in “The Department of Justice Releases Inspectors Generals Reports Concerning Collection of Activities Authorized by President George W. Bush After the Attacks of September 11, 2001” the reason why he decided to declassify the IC IG’s heretofore classified July 10, 2009 Report: The IG reports describe deliberations surrounding the evaluation of the legal basis for certain aspects of the PSP and the transition of the PSP, in stages, from presidential authority to statutory authority under FISA. The reports describe the utility of the PSP information in counterterrorism investigations, including assessments by a number of senior government officials that the PSP filled gaps in intelligence collection. The reports also highlight the complexity of evaluating the precise contribution of the PSP to countering specific terrorist threats due to the fact that the PSP was one source among many available analytic and intelligence gathering tools.

The documents released will deepen the historical understanding of the origins of the PSP in the immediate aftermath of the 9/11 attacks, the ensuing need for immediate steps to prevent and detect further attacks, and the transition of the program to FISA authority. Today’s release is consistent with the efforts of the Department of Justice and the Intelligence Community to provide increased transparency into our surveillance activities. Id. Emphasis added. http://icontherecord.tumblr.com/ DNI Clapper’s posted three volumes of declassified documents. The declassified IC IGs July 10, 2009 Report does not cite to the May 24, 1984 Top Secret “OLC Olson FISA Memo.” Upon information and belief, if the PCLOB reads the redacted reclassified portions of the Report, there will be citations to the May 24, 1984 Top Secret “OLC Olson FISA Memo. Hence, the commenter’s suggestion that the PCLOB also request the declassification of the IGs reclassified document when it reads the declassified May 24, 1984 Top Secret “OLC Olson FISA Memo.” The commenter respectfully submits that the PCLOB cannot perform its mission if it does not read former-PCLOB Member Olson’s May 24, 1984 OLC Memo sent to AG Smith. “Re Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1979.” If AG Lynch decides not to provide Senator Feinstein with a copy of this “seminal” OLC document, then the PCLOB should know why. However, if AG Lynch does provides a copy to Senator Feinstein, the Ranking Member of the Senate Intelligence Committee, then the PCLOB has an historic 2015 opportunity to fulfill its PCLOB mission by informing the public the significance of this 1984 OLC opinion.

20 3. The September 5, 2014 re-reclassified March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” that reveals whether AG Holder adopted AAG of the OLC Olson’s determination that the exclusivity provision of the FISA was an “unconstitutional” encroachment on the President’s Commander in Chief authority

If AG Lynch decides not to declassify the May 24, 1984 Top Secret “OLC Olson FISA Memo,” then the commenter suggests that the PCLOB ask AG Lynch to declassify the September 5, 2014 re-reclassified March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” In this way, the PCLOB can determine whether the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” cites to the May 24, 1984 Top Secret “OLC Olson FISA Memo.” If so, then this would reveal whether AG Holder had adopted the 1984-2008 DOJ policy that the exclusivity provision of the FISA is an “unconstitutional” encroachment on the President’s unlimited Article II Commander in Chief inherent authority to conduct warrantless domestic surveillance of U.S. citizens to protect the nation from enemies. If so, then this raises the issue of whether USG government officials and attorneys continue to “defraud” President Obama re the fact that the 1982-2015 CIA Directors have conducted back door warrantless domestic searches of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data that is now being stored in the Utah Data Center servers without the knowledge of the Congress and the FISC. See § 11 below.

On May 6, 2004, AAG of the OLC Goldsmith issued his Top Secret OLC FISA Memo. This was after the infamous March 10, 2004 confrontation between then-WH Counsel Gonzales (2001-2005) and AG Ashcroft (2001-2004), DAG Comey (2003-2005), and FBI Director Mueller (2001-2013). This was in AG Ashcroft’s hospital room re the recertification of the NSA PSP. The five IC IG’s July 10, 2009 classified Report that DNI Clapper declassified on April 25, 2015, provides an extensive report re that confrontation and the subsequent three months of activities. See also the original unclassified July 10, 2009 Unclassified Report on the President’s Surveillance Program the DOJ had posted at http://www.usdoj.gov/oig/special/s0907.pdf.

On March 18, 2011, pursuant to the FOIA actions EPIC v DOJ (RCL), cv 06-0096 and ACLU v DOJ 06-00214 (RCL), AG Holder released a reclassified copy of AAG of the OLC Jack Goldsmith’s May 6, 2004 “Memorandum for the Attorney General: Review of the Legality of the (redacted b1,b3) Program.” The PCLOB should compare the March 18, 2011 reclassified FISA Memo to the September 5, 2014 re-reclassified May 6, 2004 OLC FISA Memo. https://www.aclu.org/sites/default/files/field_document/NSA_Wiretapping_OLC_Memo_May_6 _2004_Goldsmith.pdf.

On March 18, 2011, former-AAG of the OLC Goldsmith commented on his Blog on the DOJ’s release of the redacted document. DOJ Releases Redacted Version of 2004 Surveillance Opinion. “I continue to believe that the memorandum provides a sound analysis of a difficult set of legal issues encountered in a difficult context.” http://www.lawfareblog.com/2011/03/doj- releases-redacted-version-of-2004-surveillance-opinion/. He knew whether he had cited to the May 24, 1984 Top Secret “OLC Olson FISA Memo” as being the legal basis for the 1982-2011 CIA Directors back door warrantless searches of the 1982-2011 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks of U.S. citizens’ comingled stored content data. He knew this was not reported to the Congressional Intelligence Committees or to the FISC. This was a “smoking gun” March 18, 2011 time line mens rea admission of former-AAG of the OLC Goldsmith.

21 On September 5, 2014, AG Holder declassified parts of the March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” AG Holder re-reclassified significant parts of the May 6, 2004 Top Secret OLC FISA Memo. The declassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” revealed the legal theories upon which AAG of the OLC Goldsmith determined that the STELLAR WIND program was constitutional. https://www.aclu.org/sites/default/files/assets/olc_stellar_wind_memo_-_may_2004.pdf

On September 7, 2014, NY Times reporter Charlie Savage raised questions in “Redactions in U.S. Memo Leave Doubts on Data Surveillance Program,” as to why AAG of the OLC Goldsmith’s March 18, 2011 reclassified May 6, 2004 Top Secret OLC FISA Memo had been reclassified a second time. Savage reports: The Obama administration voluntarily reprocessed the memo from Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel, in light of the fact that it had declassified the existence of the bulk phone and email data programs last year after leaks by Edward J. Snowden, a former N.S.A. contractor. The fuller release adds to the public record of an important historical episode. However, the government continued to redact crucial portions of the memo that would answer a primary remaining question about the history of Stellarwind: What prompted the Justice Department to conclude in early 2004 that one aspect of the program, which collected records about Americans’ emails in bulk, was illegal — even though it permitted other aspects, like warrantless wiretapping and the bulk collection of Americans’ phone records, to continue? Emphasis added. AAG of the OLC Goldsmith’s May 6, 2004 Memorandum for AG Ashcroft explained that the main legal authority of the post-9/11 NSA PSP was the Congressionally enacted September 18, 2001 Authorization for Use of Military Force (AUMF) which trumped the exclusivity provision of the FISA. However, his heavily redacted May 6, 2004 OLC opinion also discussed the President’s unlimited Constitutional Article II Commander-in-Chief inherent authority to authorize the NSA to take actions at all times, not just during wartime. This included conducting warrantless domestic surveillance of U.S. citizens to protect the nation:

The President’s authority in this filed is sufficiently comprehensive that the entire structure of federal restrictions for protection national security information has been created solely by presidential order, not by statute. See generally Department of the Navy v Egan, 484 U.S. 5187, 527, 530 (1988); See also New York Times Co. v United States, 403 U.S. 713, 729- 730 (1971)(Stewart, J., concurring)(“(I)t is the constitutional duty of the Executive-as a matter of sovereign prerogative and not as a matter of laws the courts know law—through the promulgation and enforcement of executive regulations, to protect the confidentiality necessary to carry out its responsibilities in the field of international relations and national defense.”). Similarly, the NSA is entirely a creature of the Executive-it has no organic statute defining or limiting its functions. (redacted b1, b3). Id. 45. Emphasis added.

22 AAG of the OLC Goldsmith’s May 6, 2004 Memo also explained the “Unitary Executive” theory that the Article I Congress did not have the constitutional authority to encroach upon the Article II Commander in Chief’s duties if the Article I encroachment rendered it “impossible for the President to perform his constitutionally prescribed functions:”

Even if we did not conclude that (redacted b1,b3) was within the core of the Commander-in-Chief power with which Congress cannot interfere, we would conclude that the restrictions in the FISA would frustrate the President’s ability to carry out his constitutionally assigned functions as Commander in Chief and are impermissible on that basis. As noted above, even in prior opinions suggesting that Congress has the power to restrict the Executive’s actions in foreign intelligence collection this Office has always preserved the caveat that such restrictions would be permissible only where they do not “go so far as to render it impossible for the President to perform his constitutionally prescribed functions.” Redacted b5.” Id. 70. Emphasis Added.

The commenter asserts that AAG of the OLC Goldsmith would have logically and reasonably cited to AAG of the OLC Olson’s FISA Memo. “Re Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1979.” If so, then the PCLOB can learn that fact from reading a fully declassified May 6, 2004 “OLC Goldsmith FISA Memo.” If so, then it is an important fact if President Obama did not make the September 5, 2014 re-reclassification decisions to redact any reference to the May 24, 1984 Top Secret “OLC Olson FISA Memo” and its determination that the Fourth Amendment does not apply to “constitutionally” seized E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content. “Traditional Fourth Amendment analysis holds that once evidence is constitutionally seized, its dissemination or subsequent use raises no additional Fourth Amendment question.” Id. Emphasis added.

A comparison of the September 5, 2014 declassification and re-reclassification decisions with the March 18, 2011 reclassified Top Secret May 6, 2004 “OLC Goldsmith FISA Memo,” reveals the p. 1 last line no longer redacted based on FOIA exemption 5. “Declassify only upon determination by the President.” See re-reclassified document at OLC FOIA Electronic Reading Room.http://www.justice.gov/sites/default/files/pages/attachments/2014/09/19/may_6_2004_gol dsmith_opinion.pdf. The commenter asserts that if President Obama did not make the March 18, 2011 reclassification and September 5, 2014 and re-reclassification determinations, then this raises the ugly issue of the 2011-2015 “defrauding” of President Obama. See § 11 below.

On September 5, 2014, AG Holder appointed AAG of the Civil Division Delery to be the Acting Associate AG. This is an important time line fact because on September 2, 2014 AAG of the Civil Division Delery presented his oral argument to the Second Circuit in ACLU v Clapper re the metadata program. He did not inform the Second Circuit panel of the Top Secret “FISA secret law” that is explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo,” the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” and the July, 2014 Top Secret “OLC Riley v California Memo.” See AAG of the Civil Division Delery’s impressive oral argument that was recorded by C-Span as ACLU v Clapper Oral Argument. http://www.c-span.org/video/?321163- 1/aclu-v-clapper-oral-argument-phone-record-surveillance.

23 The commenter asserts that if President Obama did made the September 5, 2014 declassification decision, then President Obama made that decision with the knowledge of the June 25, 2014 unanimous Riley v California decision that the Fourth Amendment attaches to a U.S. citizen’s stored content data. If so, then President Obama would have made the September 5, 2014 re-reclassification decision of the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” with the knowledge of whether it cited to AAG of the OLC Olson’s Top Secret OLC Memo “Re Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1979.” “Traditional Fourth Amendment analysis holds that once evidence is constitutionally seized, its dissemination or subsequent use raises no additional Fourth Amendment question.” Id. Emphasis added.

The commenter believes that President Obama did not make the September 5, 2014 re- reclassification decision. As a former-Constitutional Law Professor, he would have known the legal precedential value of the Supreme Court’s June 25, 2014 unanimous Riley v California decision that the Fourth Amendment applies to a U.S. citizen’s cell phone’s stored content data. President Obama would know that an Article III Judge would most likely decide that the Riley U.S. citizens’ stored content data holding applied to the 1982-2014 E.O. 12333 Top Secret FISA exempt” NSA TSP. If so, then the President would know that it is likely that any Article III Judge would decide that Riley “overruled” the Top Secret Article II “FISA secret law” that is explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo,“ the “May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” and the July, 2014 Top Secret “OLC Riley v California Memo.” The Article III Judge would have in camera ex parte read the OLC FISA Memos.

The commenter asserts that if President Obama did not make the September 5, 2014 re- reclassification decision re the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” then the PCLOB has a duty to learn who made the March 11, 2011 reclassification and September 5, 2014 re-reclassification decisions. The commenter asserts that it is reasonable to presume that Acting Associate AG Delery and Acting AAG of the OLC Joyce Branda, who filed AG Holder’s September 19, 2014 D.C. Circuit Klayman v Obama Brief, know who made those decisions re the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” See §§ 4, 24 below

The commenter asserts that if President Obama did not make the March 18, 2011 reclassification and the September 5, 2014 re-reclassification decisions re the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” then President Obama’s Assistant to the President for Homeland Security and Counterterrorism Lisa Monaco knows who did. She was AG Holder’s 2010-2011 Acting Principal Associate DAG when the March 18, 2011 reclassification decision was made. On July 1, 2011, she was the AAG of the National Security Division and knew that AAG of the NSD Wainstein had cited to the May 24, 1984 Top Secret “OLC Olson FISA Memo” in his November 20, 2007 Top Secret Memorandum to AG Mukasey. See § 2 above.

The commenter asserts that if President Obama did not make the March 18, 2011 reclassification and the September 5, 2014 re-reclassification decisions re the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” then CIA General Counsel Caroline Krass (2014-) knows who did. On May 6, 2004, she was an OLC Attorney-Advisor (2001-2009). From 2009-2010 she was President Obama’s Special Counsel to the President for National Security Affairs and Deputy Legal Adviser at the National Security Council. On March 18, 2011, she was the Principal Deputy AAG of the OLC (2011-2013) before becoming the Acting AAG of the OLC.

24 The commenter asserts that if President Obama did not make the March 18, 2011 reclassification and the September 5, 2014 re-reclassification decisions re the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” then FBI General Counsel James Baker (2014-) knows who did. On March 1, 2004, 10 days before the March 10, 2004 confrontation in AG Ashcroft’s hospital room, he was the Office of Intelligence Policy and Review (OIPR) Counsel (2001-2006). He made the decision to ratify the CIA Director Tenet’s FOIA Officer’s decision to withhold the “FISC Robert” documents based on the FOIA Exemption 1 and the “Glomar Response” defense. He knew why AG Gonzales (2005-2007) had withheld from Judge Garaufis, the Second Circuit, and the Supreme Court the fact that the Robert VII v DOJ plaintiff had been CIA Director Casey’s 1980s E.O. 12333 Top Secret “FISA exempt” NSA TSP target. He was AG Holder’s Associate DAG (2009-2001) when the March 18, 2011 reclassification of the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” decision was made. See §§ 14, 17, 18 below.

The commenter asserts that if President Obama did not make the March 18, 2011 reclassification and the September 5, 2014 re-reclassification decisions re the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” then OIP Director Melanie Pustay knows who did. She was an OIP Attorney-Advisor from 1983-1998. She was the OIP Deputy Director (1999-2007) when the Robert VII v DOJ plaintiff appealed OIPR Baker’s March 1, 2004 OLC decision to withhold the “FISC Robert” documents. On March 18, 2011, she was the OIP Director (2007-). She knows the content of the OIP case file notes and e-mails re her decision not to process the Robert II v CIA and DOJ plaintiff’s December 3, 2013 FOIA request for the release of the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” She knows these are connect-the-dots documents to the 1985-2015 DOJ case file notes and e-mails of the plaintiff’s 30 years of FOIA actions (1985-2015) seeking the release of documents that reveal whether he had been CIA Director Casey’s 1980s illegal target of the 1982-1986 E.O. 12333 Top Secret “ FISA exempt” NSA TSP. She knows the Robert OIP case file notes and e-mails reveal that the 1982-2014 AGs knew whether the 1982-2014 CIA Directors had conducted “back door” warrantless domestic searches of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data without the FISC’s knowledge. See § 14 below.

The commenter respectfully suggests that given the gravity of the Robert II v CIA and DOJ-Robert VIII v DOJ, HHS, and SSA plaintiff’s allegation that USG attorneys have “defrauded” President Obama re AG Holder’s 2013-2015 approval of the CIA Director Brennan’s continued back door warrantless domestic searches of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data, the PCLOB has a duty to learn who made the September 5, 2014 re-reclassification decision. If the PCLOB determines that President Obama did not make the September 5, 2014 re- reclassification decision, then President Obama should know who made that critical decision.

If the PCLOB determines that President Obama did not make the September 5, 2014 re- reclassification decision, then this makes easy the PCLOB’s decision whether to accept the commenter’s suggestion that President Obama issue a new E.O. that requires a “Riley v California FISC warrant” prior to any search of the 1982-2015 E.O. 12333 NSA TSP servers’ U.S. citizens comingled stored content data. The PCLOB would be recommending that President Obama end CIA Director Brennan’s back door warrantless domestic searches of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data without the knowledge of the FISC and Congress. See § 13 below.

25 4. Acting AAG of the OLC Thompson’s July, 2014 Top Secret “OLC Riley v California Memo” and OIP Director Pustay’s decision to use the “Glomar Response” defense to deny the Robert II v CIA and DOJ FOIA request for the release of this OLC FISA Memo that explains AG Holder’s 2014 “FISA secret law” that is not known to President Obama

On June 25, 2014, the Supreme Court unanimously decided Riley v California, 573 U.S. ___ (2014). The Court held that the Fourth Amendment applies to the stored content data in a U.S. citizen’s cell phone. Chief Justice Roberts explained that the accumulation of stored content data in a U.S. citizen’s cell phone triggers the requirement that a law enforcement officer secure a warrant before searching the U.S. citizen’s cell phone’s stored content data:

One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. See Kerr, Foreword: Ac- counting for Technological Change, 36 Harv. J. L. & Pub.Pol’y 403, 404– 405 (2013). Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick, supra, rather than a container the size of the cigarette package in Robinson. Id slip opinion 17. Emphasis added.

Chief Justice Roberts explained the remedy for a law enforcement officer to access the U.S. citizen’s cell phone’s stored content data that may contain evidence that the U.S. citizens had committed a crime. It was an exquisitely simple “get a warrant” remedy: “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life’… The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.” Id. slip op. 28. Emphasis added.

26 On March 27, 2014, President Obama in his Statement by the President on the Section 215 Bulk Metadata Program, had informed the public of his plan to end the USG’s storage of metadata. President Obama explained his decision making process:

Earlier this year in a speech at the Department of Justice, I announced a transition that would end the Section 215 bulk telephony metadata program as it previously existed and that we would establish a mechanism to preserve the capabilities we need without the government holding this bulk metadata. I did so to give the public greater confidence that their privacy is appropriately protected, while maintaining the tools our intelligence and law enforcement agencies need to keep us safe. In that January 17 speech, I ordered that a transition away from the prior program would proceed in two steps. In addition to directing immediate changes to the program, I also directed the Intelligence Community and the Attorney General to use this transition period to develop options for a new approach to match the capabilities and fill gaps that the Section 215 program was designed to address without the government holding this metadata. I instructed them to report back to me with options for alternative approaches before the program comes up for reauthorization on March 28th. As part of this process, we consulted with the Congress, the private sector, and privacy and civil liberties groups, and developed a number of alternative approaches. Having carefully considered the available options, I have decided that the best path forward is that the government should not collect or hold this data in bulk. Instead, the data should remain at the telephone companies for the length of time it currently does today. The government would obtain the data pursuant to individual orders from the Foreign Intelligence Surveillance Court (FISC) approving the use of specific numbers for such queries, if a judge agrees based on national security concerns. Legislation will be needed to permit the government to obtain this information with the speed and in the manner that will be required to make this approach workable. Id. Emphasis added. https://www.whitehouse.gov/the-press- office/2014/03/27/statement-president-section-215-bulk-metadata-program

In July, 2014, DNI Clapper provided President Obama with his then classified DNI Report “Safeguarding the Personal Information of all People: A Status Report on the Development and Implementation of Procedures Under Presidential Policy Directive 28.” http://www.dni.gov/files/documents/1017/PPD-28_Status_Report_Oct_2014.pdf. DNI Clapper’s DNI Interim PPD-28 Report was issued with the knowledge that Acting AAG of the OLC Thompson was drafting his July, 2014 Top Secret “OLC Riley v California Memo.”

On October 17, 2014, DNI Director Clapper declassified his July, 2014 DNI Interim PPD-28 Report. He posted it on his IC on the Record website. http://icontherecord.tumblr.com/. He intended that the public read his DNI Interim Report that had been issued when Acting AAG of the OLC Thompson was drafting his Top Secret July, 2014 “OLC Riley v California Memo.”

27 On October 17, 2014, the public learned that the July, 2014 DNI Interim PPD-28 Report covered the application of E.O. 12333 and the Constitution to protect U.S. citizens:

All Intelligence Community elements operate in a manner that protects the civil liberties and privacy rights of U.S. persons wherever located around the world, and of all people in the United States regardless of nationality. The applicable rules are in accordance with several key statues and executive orders, such as the Privacy Act, the Foreign Intelligence Surveillance Act, and Executive Order 12333 as well as the U.S. Constitution. Id. 2. Emphasis added

The Interim PPD-28 Report established four principles that should be incorporated into each IC agency’s policies and procedures that are to comply with PPD-28. The first principle was compliance with the Constitution and applicable statutes:

(1) The collection of SIGINT shall be authorized by statute, or Executive Order, proclamation, or other Presidential directive, and undertaken in accordance with the Constitution and applicable statutes, Executive Orders, proclamations, and Presidential Directives. Id. 3. Emphasis added.

However, the Interim PPD-28 Report also indicated that there was a “CIA exception” that applies to the CIA that will be different from the other IC agencies:

CIA, for example, has current policies, processes, access controls, or training in place or will create additional measures to ensure protection of personal information obtained via SIGINT activities, with the goal of consistent implementation across the CIA. To that end, CIA is drafting an updated policy to encompass the safeguarding of personal information consistent with PPD-28 expectations. CIA will designate a senior Agency officer(s) to oversee compliance with PPD-28, in coordination with other relevant oversight entities, as appropriate. Id. 10. Emphasis added.

In July, 2014, Acting AAG of the OLC Karl Remon Thompson had the duty to prepare the OLC opinion that determined whether the Riley v California Fourth Amendment holding that was based on the fact the cell phone had tremendous storage capacity, should also be applied to the E.O. 12333 NSA TSP “FISA exempt” U.S. citizens’ comingled stored content data. DOD Cyber Commander-NSA Director General Vice Adm. Michael S. Rogers (2014) retained this data in the Utah Data Center. Acting AAG of the OLC Thompson’s “OLC Riley v California Memo” provided an opportunity to reconcile President Obama’s March 27, 2014 metadata storage plan with the June 25, 2014 Riley Supreme Court decision, and with DNI Clapper’s then classified July, 2014 DNI Interim Report that was being submitted to President Obama.

Because of the September 5, 2014 re-reclassification of the March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” the Robert II v CIA and DOJ plaintiff filed a September 15, 2015 FOIA request seeking the release of Acting AAG of the OLC Thompson’s July, 2014 “OLC Riley v California decision. He filed a 54 page 9-15-14 White Paper in support of his FOIA request. http://snowflake5391.net/olc_foia.pdf.

28 On September 30, 2014, OLC Special Counsel Paul P. Colborn issued a timely “Glomar Response” decision denying the Robert II v CIA and DOJ plaintiff’s September 15, 2014 FOIA request for the “OLC Riley v California Memo” document. "A search of OLC's files has located no documents responding to your request." Emphasis added. FOIA Request No. FY 14-089.

OLC Special Counsel Colborn explained his “Glomar Response” denial decision:

For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. § 552(c). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist. Id. Emphasis added.

On November 24, 2014, the Robert II v CIA and DOJ plaintiff appealed OLC Colborn’s September 30, 2014 “Glomar Response” denial decision. The plaintiff’s 48 page appeal letter supplemented his 54 page September 15, 2014 White Paper. At his appeal p 1, he cited to his undocketed December 3, 2013 FOIA request for the May 24, 1984 “OLC Olson FISA Memo” and the May 6, 2004 “OLC Goldsmith FISA Memo.” At § J, he placed OIP Director Pustay on Notice of DNI Clapper’s October 17, 2014 decision to declassify the July, 2014 DNI Interim PPD-28 Report. http://snowflake5391.net/OLC_Riley_Appeal_11-24-14.pdf

On June 4, 2015, after President Obama’s June 2, 2015 signing of the USA Freedom Act, OIP Director Pustay issued her decision affirming OLC Special Counsel Colborn’s September 30, 2014 use of the “Glomar Response” defense to deny September 15, 2015 FOIA request for the “OLC Riley v California Memo.” Appeal No. AP-2015-00955. This decision was signed by OIP Senior Attorney Matthew Hurd, on behalf of Chief, Administrative Appeals Staff Sean O- Neil. OIP Director Pustay’s Senior Attorney Hurd stated:

After carefully considering your appeal, I am affirming the OLC’s action on your request. OLC informed you that it could locate no responsive records subject to the Freedom of Information Act in its files. I have determined that OLC’s action was correct and that it conducted an adequate, reasonable search for such records.

Please be advised that this Office’s decision was made only after a full review of this matter. Your appeal was assigned to an attorney with this office who thoroughly reviewed and analyzed your appeal, your underlying request, and the action of OLC in response to your request. Id. Emphasis added.

The commenter places the PCLOB on Notice that the OLC and OIP FOIA case file notes and e-mails of OLC Special Counsel Colborn and OIP Senior Attorney Hurd detail their due diligence actions. These are connect-the-dots documents to the OLC and OIP FOIA case file notes and e-mails re the Robert II v CIA and DOJ plaintiff’s December 3, 2013 FOIA request for the 1) May 24, 1984 Top Secret “OLC Olson FISA Memo” and the 2) May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” and with the Robert VII v DOJ “FISC Robert” documents withheld pursuant to FOIA exemption 1 and the “Glomar Response” defense. See §14 below.

29 The commenter respectfully suggests that if the PCLOB Members read the OLC and OIP FOIA case file notes and e-mails of OLC Special Counsel Colborn and OIP Senior Attorney Hurd, then they will learn the names of the USG officials and attorneys with whom they consulted. With this information, the PCLOB can determine whether any of those persons participated in the September 5, 2014 re-reclassification of the March 18, 2011 reclassification of the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” If President Obama did not make the reclassification decisions, then the PCLOB Members will know that names of additional officials and attorneys who are acting in concert to “defraud” President Obama. See § 11 below.

If OIP Senior Attorney Hurd’s June 4, 2015 representations of a thorough review are accurate, then he read the Robert II v CIA and DOJ plaintiff’s September 15, 2014 54 page supporting WP and his 48 page November 24, 2014 OIP appeal letter. “Your appeal was assigned to an attorney with this office who thoroughly reviewed and analyzed your appeal, your underlying request, and the action of OLC in response to your request.” Id. Emphasis added. If so, then he knows significance of OIP Director Pustay’s June 4, 2015 decision being made after President Obama’s June 2, 2015 signing of the USA Freedom Act and the statutory end to the USG’s storage of the US citizens’ metadata. He knows why the USG’s storage of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S citizens’ comingled stored content data continues to be retained in the 2015 USG’s Utah Data Center servers.

The commenter respectfully suggests that PCLOB Members Rachael Brand and Elisabeth Collins, as former AAGs of the OLP, have an extraordinary opportunity to read the July, 2014 Top Secret “OLC Riley v California Memo” and assess the merits of Acting AAG of the OLC Thompson’s decision. They can decide if President Obama’s signing of the USA Freedom Act signing provides a bi-partisan opening for a consensus that the unanimous Riley v California holding that the Fourth Amendment applies to a U.S. citizen’s cell phone’s stored content data, should also apply whenever any Intelligence Community analyst searches the 1982-2015 E.O. 12333 Top Secret heretofore “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data that is retained in any USG server. See §§ 5, 24 below.

PCLOB Members Brand and Collins could take the lead in making PCLOB recommendations that President Obama issue a new E.O. 12333 that explicitly limits the President’s Article II heretofore unlimited Article II Commander in Chief “inherent authority” to conduct warrantless domestic surveillance of U.S. citizens’ comingled stored content data in order to protect the nation from enemies. They can best make the case that all 535 Members of Congress without a blink of an eye, should all agree that the “executive action” of the present Orweillan-Hooveresque policy of CIA Director Brennan conducting “back door” warrantless domestic searches of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data, should end in 2015.

If the PCLOB determines that no “OLC Riley v California Memo” actually exists, then the PCLOB can recommend that there should be one. The PCLOB could recommend that Acting AAG of the OLC Thompson issue a public OLC opinion as to whether the Riley v California holding that the Fourth Amendment applies to a U.S. citizen’s cell phone’s stored content data, should also apply whenever any Intelligence Community analyst searches the 1982-2015 E.O. 12333 Top Secret heretofore “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data that continues to be retained in any USG server. See §§ 12, 13 below

30 5. The commenter’s suggestion that the PCLOB recommend that President Obama issue a new E.O. that incorporates a remedy that requires a “Riley v California FISC warrant” prior to any Intelligence Community analyst conducting a search of any 1982-2015 E.O. 12333 Top Secret NSA TSP “haystacks” of U.S. citizens’ comingled stored content data

The commenter’s suggested “Riley v California FISC warrant” requirement is a practical solution to the fact that President Obama and the Congress would never agree to the destruction of the E.O. 12333 Top Secret NSA TSP comingled stored content servers because the foreign comingled stored content data needs to be searched to protect the nation from future enemies. A “Riley v California FISC warrant” requirement does not cause an increased national security risk. It merely requires that IC “minimization” standards be cited in the individualized named U.S. citizen’s FISC Order. This “Riley v California FISC warrant” requirement will result in the formal end to the 1982-2015 CIA Directors conducting back door warrantless domestic searches of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data without the knowledge of the Article I Intelligence Committees, Article II Presidents, and Article III FISC and Supreme Court. See § 13 below.

The commenter’s suggested “Riley v California FISC warrant” requirement is consistent With DNI Clapper’s January 15, 2015 adoption of the National Research Council of the National Academies Bulk Collection of Signals Intelligence: Technical Options Report. http://www.nap.edu/catalog/19414/bulk-collection-of-signals-intelligence-technical-options. It provides a solution for President Obama’s conundrum of the retention of the stored content data from the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP servers which contain U.S. citizens’ comingled stored content data. That Report has taken on greater importance because of the May 31, 2015 sunset of Section 215 of the USA Patriot Act and the June 2, 2015 enactment of the USA Freedom Act which ends the USG storage of metadata, but not the E.O. 12333 Top Secret “FISA exempt” NSA TSP storage of U.S. citizens’ comingled content data.

DNI Clapper’s January 15, 2014 DNI Final PPD-28 Report acknowledged the Bulk Collection Report’s conclusion that it was not technically feasible to avoid the need for the USG to continue to retain the bulk collection of content data. DNI Clapper knew that there has to be “other steps to reduce privacy and civil liberties” risks that result from CIA searches of the E.O. 12333 “FISA exempt” NSA TSP in violation of the exclusivity provision of the FISA. He informed the public that he was reviewing the Bulk Collection Report’s findings:

31 The Director of National Intelligence requested the National Academies of Sciences to assess, as directed by the President, the technical feasibility of creating software-based alternatives that would allow the Intelligence Community to avoid the need for bulk collection. The January 2015 report, Bulk Collection of Signals Intelligence: Technical Options, is publicly available and concludes that there is no software-based alternatives that will provide a complete substitute for bulk collection in the detection of some national security threats, but the report suggested other steps to reduce privacy and civil liberties risk and improve oversight of bulk collection activities. We are currently reviewing how to address these important findings. Id. Emphasis added. http://icontherecord.tumblr.com/ppd-28/2015/seeking-independent-advice

The Preface “the Charge to the Committee” of the Bulk Collection of Signals Intelligence: Technical Options makes clear that the authors of the Report did not address any legal issues. “It will not address the legality or value of signals intelligence collection.” Id. viii.

The Committee explained its mission as presenting alternatives to bulk collection:

In general terms, the committee saw its mission as exploring whether technological software-based alternatives to bulk collection might be identified in order to retain, to the extent possible current intelligence capabilities, while intruding less on parties that of known or potential interest to the IC. The legal protections provided by the Fourth Amendment and legislation such as the Foreign Intelligence Surveillance Act distinguish between foreign and U.S. persons; a factor that informed the committee’s thinking. Id. viii. Emphasis added.

The Committee noted the importance of a clearer meaning of “bulk collection” because the 1982-2015 NSA has retained both foreign and U.S. persons comingled content data:

Based in part on briefings from the IC, the committee adopted a definition better suited to understanding the trade-off between liberty and effective intelligence: If a significant portion of the data collected is not associated with current targets, it is bulk collection; otherwise it is targeted. There is no precise definition of bulk collection, but rather a continuum, with no bright line separating bulk from targeted. The committee’ acknowledges that the use of the word “significant” makes the definition imprecise as well. The IC prefers targeted collection because it narrows its attention as much as possible during collection to use its limited resources efficiently, to comply with rules about what is allowed and to limit intrusions on privacy. Id. 2. Italics in original, but underlings added for emphasis.

The Committee’s Conclusion 1 highlights the “Past is Prologue” fact that the NSA’s 2015 continued collection and storage of bulk collection content data is necessary in order that present and future analysts can go back in time to track newly discovered terrorists actions. This is the conundrum that President Obama and the Congress have to confront re content storage:

32 Conclusion 1. There is no software technique that will fully substitute for bulk collection where it is relied on to answer queries about the past after new targets become known.

A key value of bulk collection is its record of past SIGNIT that may be relevant to subsequent investigations. If past events become interesting in the present, because intelligence-gathering priorities change to include detection of new kinds of threats or because of new events such as the discovery that an individual is a terrorist, historical events and the context they provide will be available for analysis only if they were previously collected. Id. 9. Emphasis added.

The Committee explained a “most agree” accepted Fourth Amendment analysis of searches of U.S. citizens comingled stored bulk collected data after the Article II 2001-2008 STELLAR WIND program was codified with the Article I FISA amendment of 2008. This “most agree” representation was made without the knowledge of the “FISA secret law” of 2014:

Notwithstanding the operation of the predecessor program to Foreign Intelligence Act (FISA) Section 215, outside of the requirements of FISA, most agree now that the IC can target U.S. persons only when permitted explicitly with Foreign Intelligence Surveillance Court (FISC) involvement using procedures designed to ensure Fourth Amendment protections. The legal protections provided by the Fourth Amendment and various domestic legislation, such as FISA, distinguish between foreign and U.S. persons; in particular the latter enjoy the protections of the Fourth Amendment. In cases where information about U.S. persons is collected as a part of authorized foreign intelligence collection activities, minimization rules approved by the U.S. Attorney General require special handling for privacy protection, consistent with foreign intelligence needs, which typically will require removing the names of U.S. persons or other identifying information prior to dissemination. Id. 10. Emphasis added.

The Committee’s Conclusion 2.2 recognizes the need to continue to collect and store U.S. citizens’ comingled content data, but advises that there are “automatic control mechanism” that can provide oversight bodies with tools to protect U.S. citizens Fourth Amendment rights. These “automatic control mechanisms’ would provide an audit trail of any warrantless U.S. citizen searches. This Conclusion is based on the premise that “increased transparency” is the fact that provides the Article I Congress and the Article III Judges, including the FISC, “more confidence” that the internal controls prevent violations of the laws enacted by the Congress:

Conclusion 2.2. Automated controls can provide new opportunities to make controls more transparent by giving the public and oversight bodies the opportunity to inspect the software artifacts that describe and implement the controls. Increased transparency can give people outside the IC more confidence that the controls are appropriate, although the need for secrecy about some of the details makes complete confidence unlikely. Id. 77. Emphasis added.

33 The PCLOB knows that pursuant to the 2006-2015 FISC Orders, there are now multi layered “automatic control mechanisms” that are subject to Article I Congressional Oversight and Article II internal IG controls. However, the PCLOB also knows that there has been no Intelligence Community (IC) Inspector Generals “automatic control mechanisms” for the 1982- 2015 CIA Directors back door warrantless domestic searches of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. See DNI Clapper’s April 25, 2015 Statement “The Department of Justice Releases Inspectors General Reports Concerning Collection Activities Authorized by President George W. Bush After the Attacks of September 11, 2001” and the five IC IG’s Report on the NSA “PSW.” DNI Director Clapper decided to reclassify many pages of the IC IGs’ volumes which he posted on IC on the Record. 2009 Joint IG Report on the PSP Vol. I. See §§ 8-13 below.

Hence the suggestion that the PCLOB recommend that President Obama issue a new E.O. that includes a new “Riley v California FISC warrant” requirement. However, as the PCLOB knows, any E.O. that President Obama issues will be subject to objections that the President is implementing another “executive action” that is not authorized by Congress. As a result, there needs to be a PCLOB 2015 report that suggests a proposed amendment to the FISA of 1978 by which the Congress provides for a statutory requirement that there “shall” be a “Riley v California FISC warrant” requirement whenever any IC analysts, including CIA analysts, searches U.S. persons’ stored content data that is retained in any USG server. If there was legislation, then by application of the 1952 Youngstown standards, there would be an increase in the President’s Article II Commander in Chief authority to conduct searches of the 1982-2015 stored content data, but subject to a Riley v California FISC warrant.” See § 6 below.

Therefore, the commenter suggests that the PCLOB request that AG Lynch not only provide a copy of the May 24, 1984 Top Secret “OLC Olson FISA Memo,” but specifically advise whether the Riley v California decision “overrules” the AAG of the OLC Olson’s 1984 conclusion that the Fourth Amendment does not attach to “constitutionally” seized data. “Traditional Fourth Amendment analysis holds that once evidence is constitutionally seized, its dissemination or subsequent use raises no additional Fourth Amendment question.” Id.

Upon information and belief, AG Lynch will seek the guidance of the PIDB prior to providing the PCLOB with a copy of the May 24, 1984 Top Secret “OLC Olson FISA Memo.” If so, then this would trigger the leadership role of Majority Leader McConnell’s PIDB appointee former-AAG of the National Security Division Kenneth Wainstein. He cited to the May 24, 1984 Top Secret “OLC Olson FISA Memo” in his Snowden leaked November 20, 2007 Top Secret Memorandum sent to AG Mukasey. Upon information and belief, if asked, PIDB Member Wainstein will recommend to all of the PIDB Members and Majority Leader Mc Connell a Congressionally mandated “Riley v California FISC warrant” requirement that would not place the nation at risk. Upon information and belief, he would recommend that such a FISA amendment would reset the delicate separations of powers balance established when the 1978 Congress included the exclusivity provision in the FISA of 1978. See § 7 below.

The remainder of the commenter’s Volume I White Paper provides factual and legal issues background. The commenter believes that his 30 year experience in FOIA litigation seeking documents to prove a serial E.O. 12333 violation of the exclusivity provision of the FISA, provides a unique “outside the box” analysis of the implementation of E.O. 12333.

34 6. The application of Justice Jackson’s Youngstown Sheet and Tube Co. v Sawyer standard to a 2015 amendment of the FISA that included a statutorily required “Riley v California FISC warrant” prior to any IC analyst conducting a search of the E.O. 12333 Top Secret NSA TSP “haystacks” of U.S. citizens’ comingled stored content data

In Youngstown, the Supreme Court held that President Truman did not have the Constitutional Article II authority to issue an Executive Order whereby the Secretary of Commerce would operate the steel mills to avoid a nationwide steel workers strike during a time of war. The Supreme Court specifically held that President’s Article II military authority as the Commander in Chief of Armed Forces did not extend to settling a labor dispute. The Congress had enacted the Taft-Hartley Act of 1947 which provided the statutory framework that the President was to apply when there was a labor dispute affecting the nation in a time of war.

Justice Jackson explained the delicate Separation of Powers balance that is based on the mutual respect by each Branch of Government for the other Branches of Government: The actual art of governing under our Constitution does not, and cannot, conform to judicial definitions of the power of any of its branches based on isolated clauses, or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity. Id. p. 634. Emphasis added. Justice Jackson then set up a framework for the Court to decide whether the President had exercised an Article II authority that breached the delicate Separation of Powers balance: 1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. A seizure

35 executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it. 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law. 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. Id. p. 635-638. Emphasis added. If after enacting the USA Freedom Act, the Congress enacted a FISA amendment that established standards re the Intelligence Community (IC) analyst conducting searches of 1982- 2015 E.O. 12333 Top Secret NSA “haystacks” of U.S. citizens’ comingled stored content data, then the Youngstown “category 1” would apply. The President’s Article II authority would be at its “highest ebb” because the Article I Congress statutorily authorized IC analysts to conduct searches of the U.S. persons’ comingled stored content data. The IC analysts searches would not violate the Fourth Amendment because searches would be pursuant to Article III FISC warrants. Such a 2015 FISA amendment would statutorily end the 1982-2015 CIA Directors back door warrantless domestic searches of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. The Article III FISC and the Supreme Court would know that Congress did not intend for there to be a “FISA exempt” search of U.S persons’ comingled stored content data. Such a FISA amendment could cite to the exclusivity provision of the FISA in order to statutorily establish that there were Article I Congressional limits on the President’s Article II Commander in Chief “inherent authority” to conduct warrantless domestic surveillance of U.S. citizens. See § 9 below. If all five of the PCLOB Members read the AAG of the OLC Olson’s May 24, 1984 Top Secret FISA Memo sent to AG Smith, then they can all apply the Youngstown standards to former-PCLOB Member Olson’s May 24, 1984 OLC Memo. They will learn why AAG of the OLC Olson had determined that if the AG determined that this was necessary to protect the nation from its enemies, then the exclusivity provision of the FISA of 1978 was an “unconstitutional” encroachment on the President’s unlimited Article II Commander in Chief inherent authority to conduct warrantless domestic surveillance of U.S. citizens. See § 2 above.

36 The Robert II v CIA and DOJ-Robert VIII v DOJ, HHS, and SSA plaintiff had included in his October 3, 2013 Robert Review Group Comments §§ G, H, his Youngstown analysis that the Presidents have been at their “lowest ebb” of Article II authority when implementing the Top Secret “FISA secret law” that is explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo.” http://snowflake5391.net/review_group_comments.pdf. The plaintiff highlighted what the President Obama’s Review Group already knew: Congress enacted the exclusivity provision of the FISA of 1978 to explicitly limit a President’s heretofore unlimited Article II Commander in Chief authority to conduct warrantless domestic surveillance of U.S. citizens. “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id. Emphasis added.

If all five of the PCLOB Members read the May 24, 1984 Top Secret “OLC Olson FISA Memo,” then they can determine as a Board whether the Youngstown “lowest ebb” category three standard applies. If so, then all of the PIDB Members will understand the importance of the PIDB Members also reading the September 5, 2014 re-reclassified March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” All of the PIDB Members will know whether AG Holder had adopted AAG of the OLC Olson’s May 24, 1984 determination that the exclusivity provision of the FISA of 1978 was an “unconstitutional” encroachment on the President’s unlimited Article II Commander in Chief “inherent authority” to conduct warrantless domestic surveillance of U.S. citizens if the AG had determined that this was necessary to protect the nation from its enemies. Is so, then the all of the PIDB Members will understand the Constitutional dangers of implementing the “FISA secret law.” See § 3 above.

In defense of former-AAG of the OLC Olson, he never could have anticipated in 1984 the mind-boggling future exponential capability of the Defense Advanced Research Projects Agency (DARPA) algorithms. Upon information and belief, if in 2015 the PCLOB asked former-Solicitor General Olson (2001-2004) whether the Supreme Court’s unanimous Riley v California decision that the Fourth Amendment applied to a U.S. citizen’s cell phone’s stored content data, “overruled” his May 24, 1984 Top Secret OLC FISA Memo, then he would agree that his May 24, 1984 Top Secret OLC FISA memo should be rescinded. If the author of the May 24, 1984 “Re Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1979,” a 2006-2008 PCLOB Member, came to that 2015 conclusion, then this provides the PCLOB with a 2015 public narrative pathway to a recommendation that the Congress consider amending the FISA of 1978 to include a “Riley v California FISC warrant requirement.” This would require any IC analyst searching the 1982-2015 E.O. 12333 Top Secret NSA TSP “haystacks” of U.S. citizens’ comingled stored content data on any USG server, to have an individualized FISC warrant.

Therefore, a PCLOB recommendation for a FISA amendment with a “Riley v California FISC warrant” requirement, would strengthen the President’s Article II Commander in Chief inherent authority to conduct searches of the 1985-2015 USG servers that retain the “haystacks” of foreign persons’ comingled stored content data. However, at the same time, this FISA amendment would strengthen Article I and Article III checks and balances to prevent future Presidents from having Commander in Chief inherent authority to allow their CIA Directors to conduct back door warrantless searches of U.S. citizens’ comingled stored content data that is conducted with their AGs’ consent, but without the knowledge of Congress or the FISC.

37 7. The December 8, 2014 PIDB Report re declassification reforms and the June 25, 2015 PIDB public meeting re the new automatic declassification technique that will first be tested by application to President Reagan’s Administrations’ classified 1981-1989 e-mails

The commenter suggests that because the Youngstown standards are a bipartisan check and balance on the President’s authority, the PCLOB should consider requesting that the Public Interest Declassification Board (PIDB) declassify the May 24, 1984 Top Secret “OLC Olson FISA Memo” that explains the “FISA secret law.” On December 8, 2014, the PIDB issued a Supplemental Report: Setting Priorities: An Essential Step in Transforming Declassification. This PIDB report discusses the need for the President and Congress to clarify the declassification standards that should apply to the ever increasing number of classified documents. On June 25, 2015, the PIDB will be holding a public meeting re new techniques to implement a new automatic declassification system. It is to be first tested by application to Presidential Records from President Reagan’s Administration’s classified e-mail system. All of President Reagan’s Administration’s Records, including the e-mails, are now subject to President Obama’s E.O. 13526 § 3.3 Automatic Declassification 25 year standard (1989+25=2014). See § 14 below.

The Robert I v CIA, cv 00-4325 (Seybert, J) and Robert II v CIA and DOJ, cv 02-6788 (Seybert, J), plaintiff notes the irony of the DARPA legacy algorithms being used to search the content of the e-mails used by President Reagan’s 1981-1989 staff. For 15 years (2000-2015), the Robert I v CIA and Robert II v CIA and DOJ plaintiff has been seeking the release of the 1985 “North Notebook” documents that are part of a “mosaic of documents” that prove whether he had been the 1985 illegal target of the 1982-1985 E.O. 12333 Top Secret “FISA exempt” NSA TSP. Also ironically, AG Lynch was the EDNY U.S. Attorney (1999-2001) during Robert I v CIA and from 2010-2015 during the Robert II v CIA and DOJ litigation. See § 14 below.

However, EDNY U.S. Attorney Lynch did not have Top Security clearance to read the four one-page (1985) “North Notebook” documents. As a result, when she represented the changing successor co-defendant CIA Directors and AGs, she never had clearance to read the 1985 classified “North Notebook” documents. As the AG, she now has Top Security clearance to read the four one-page 1985 CIA classified documents along with the DOJ’s Robert I v CIA and Robert II v CIA and DOJ case file notes and e-mails. Because of the new PIDB review of the e- mails of President Reagan, there will be increasing 2015 pressure on AG Lynch to accept the plaintiff’s renewed offer of a Robert II v CIA and DOJ quiet settlement. See §§ 20, 21 below.

On December 8, 2014, the Public Interest Declassification Board (PIDB) issued a Supplemental Report: Setting Priorities” An Essential Step in Transforming Declassification. http://www.archives.gov/declassification/pidb/recommendations/setting-priorities.pdf. This PIDB report discusses the need for President Obama and the Congress to clarify the declassification standards that should apply to the ever increasing number of classified documents. If AG Lynch decides not to declassify the May 24, 1984 Top Secret “OLC Olson FISA Memo,” then the PCLOB, based on the USA Freedom Act, should conside directly requesting that the PIDB declassify the 29 year old May 24, 1984 Top Secret “OLC Olson FISA Memo” requested in the Robert II v CIA and DOJ plaintiff’s December 3, 2013 FOIA request. The commenter respectfully submits that the PIDB may consider that request because Senate Majority Leader Mc Connell’s PIDB representative is former-AAG of the National Security Division Kenneth Wainstein who has read this OLC FISA Memo. See § 2 above.

Acting PIDB Chairman Skaggs’ cover letter to President Obama explained that the PIDB was providing recommendations to the President for transformational declassification reforms:

Acting PIDB Chairman Skaggs had been a PIDB Member since 2005. He was a 1987- 1999 Congressman with six years on the House Permanent Select Committee on Intelligence. As a result, he had an Article I sensitivity to a President using document classifications to prevent the Intelligence Committees from fulfilling their Oversight duties of the Intelligence Community. This would include CIA actions that had not been reported to the Committees pursuant to the President’s § 413 (a) of the National Security Act Notification “shall” duty. See § 12 below.

The PIDB’s website lists its Functions. This includes advising the President on the declassification of documents that affect Executive Orders which have a public interest:  Advises and provides recommendations to the President and other executive branch officials on the systematic, thorough, coordinated, and comprehensive identification, collection, review for declassification, and release of declassified records and materials of archival value, including records and materials of extraordinary public interest.

 Advises the President and other executive branch officials on policies deriving from Executive Orders regarding the classification and declassification of national security information.

 Reviews and makes recommendations to the President with respect to any Congressional request, made by the committee of jurisdiction, to declassify certain records or to reconsider a rejection to declassify specific records. Emphasis added.http://www.archives.gov/declassification/pidb/index.html#about

39 On January 14, 2015, President Obama appointed PIDB Member William H. Leary to be the Acting PIDB Chair to succeed Acting Chair Skaggs. His PIDB biography indicates that he had been President Obama’s 2009-2011 Special Adviser to the National Security Advisor and Senior Director for Records and Access Management on the National Security Staff. In that capacity, he served as Chair of the Interagency Security Classification Appeals Panel and Chair of the Records Access and Information Security Interagency Policy Committee. He has been a strong proponent of governmental transparency. He was one of the primary executive branch officials behind the creation of the Board in 2000 and the development of President Obama’s Executive Order 13526 on Classified National Security Information. Prior to joining the National Security Council staff, he served as the Deputy Director of the Agency Services Division at the National Archives and Records Administration for five years. See § 13 below.

President Obama’s appointee Acting PIDB Chair Leary and Majority Leader McConnell’s appointee PIDB Member Wainstein, are excellent point and counterpoint PIDB Members on the issue of the declassification of not only the May 24, 1984 Top Secret “OLC Olson FISA Memo,” but also the declassification of the September 5, 2014 re-reclassified March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” PIDB Member Wainstein had been the 2002 FBI General Counsel and FBI Director Mueller’s 2003- 2006 Chief of Staff before becoming the first 2006-2008 AAG of the NSD and then President Bush’s 2008 Homeland Security Adviser. PIDB Member Wainstein knows why AG Ashcroft classified the May 6, 2004 “OLC Goldsmith FISA Memo” and whether that 2004 OLC FISA Memo cited to the May 24, 1984 Top Secret “OLC Olson FISA Memo.” See § 3 above.

The PIDB informed the public of its June 25, 2015 public meeting to discuss its Report to the President on Transforming the Security Classification System:

The Public Interest Declassification Board (PIDB) will host a public meeting to discuss the recommendations included in its Report to the President on Transforming the Security Classification System, and its recommendation to employ existing technologies and develop and pilot new methods to modernize classification and declassification. The meeting will include a discussion of the technology study the PIDB is conducting in collaboration with Executive Branch agencies. There will be a briefing on the results of technology pilot projects completed at the Center for Content Understanding at the Applied Research Laboratories (UT: Austin), co-sponsored by the Central Intelligence Agency and the National Archives. In his Second Open Government National Action Plan, the President directed the CIA and the National Archives to pilot new tools to provide classification reviewers with search capability for unstructured data and automate initial document analysis, beginning with the Presidential Records from the Reagan Administration’s classified email system. The Archivist of the United States, David S. Ferriero will offer opening remarks, a senior official from the White House will give comments on Open Government Initiatives and a research scientist from the Center for Content Understanding will provide a briefing on the pilot projects. Id. Emphasis added. http://www.archives.gov/declassification/pidb/

40 One of the PIDB Members is Admiral William Studeman, Ret. He was the 1988-1992 NSA Director and 1992-1995 CIA Deputy Director. As a result, he knows whether CIA Director Casey had conducted CIA domestic E.O. 12333 Top Secret “special activities” at the NSA and at International Medical Center, Inc. (IMC). If so, then he knows that the issue of the automatic declassification of the e-mails of President Reagan’s staff will reveal whether DOD Secretary Weinberger (1981-1986), CIA Director Casey (1981-1986), FBI Director Judge Webster (1978- 1987), AG Smith (1981-1985), and AG Meese (1985-1988) had “defrauded” President Reagan re CIA Director Casey’s E.O. 12333 domestic “special activities” at the NSA and IMC. This was to provide President Reagan with a “plausible deniability” defense to the serial impeachable violations of the Boland Amendment, § 413 (a) of the National Security Act Congressional Notification duty, the “exclusivity provision of the FISA, the Posse Comitatus Act limitations on domestic military law enforcement, and the Social Security Act. See § 11 below.

The commenter notes that NARA Archivist David S. Ferriero’s NARA General Counsel Gary Stern (1998-) was NARA’s lead attorney in Robert v National Archives, 1 Fed. Appx. 85 (2d Cir. 2001). In that FOIA action the plaintiff sought the release of the “FBI Agent Allison” documents. On March 29, 1989, the plaintiff had been interviewed inside the Office of Independent Counsel (IC) Lawrence Walsh regarding the documents that he had forwarded to IC Walsh re allegations that unaudited HHS “nonacquiescence” policy funds were used by CIA Director Casey to pay for the 1985 medical treatment and supplies at the Florida HMO IMC in violation of the Boland Amendment. FBI Agent Allison interviewed the Robert v Holz plaintiff. She had in her hand the IMC documents that the plaintiff had mailed to IC Walsh. After the closure of the IC Walsh’s offices, the “FBI Agent Allison” documents were transferred to the NARA. NARA General Counsel Stern knows that those “FBI Agent Allison” documents are now in the custody of NARA Archivist Ferriero in the NARA “Special Access” archives. This is timely fact because the “FBI Agent Allison” documents can be cross referenced to President Reagan’s staff’s e-mails to reveal whether FBI Agent Allison, 1987-1993 FBI Director Judge Session’s liaison with IC Walsh, had withheld material facts from IC Walsh. See § 11 below.

The commenter discusses the National Archives v DOJ “FBI Agent Allison” documents because those documents reveal the can of worms that can open up when Top Secret E.O. 12333 CIA domestic counterterrorism “special activities” documents are declassified. One of the reasons the Robert II v CIA and DOJ plaintiff is seeking the release of the 1985 CIA classified “North Notebook” documents is to prove that AG Meese, as a patriot, had “defrauded” President Reagan by withholding material facts re CIA domestic E.O. 12333 “special activities.” This was in order to provide President Reagan with a “plausible deniability” defense to the serial impeachable violations of federal laws. The plaintiff’s Robert II v CIA and DOJ renewed quiet settlement offer is based on his belief that AG Lynch will read the “North Notebook” documents along with the 2000-2015 DOJ Robert I v DOJ and Robert II v CIA and DOJ connect-the-dots case file notes and e-mails. AG Lynch will learn the “Past is Prologue” facts whether AG Reno, as a patriot, and AG Holder, as a patriot, had “defrauded” Presidents Clinton and Obama. If so, then this was to provide “plausible deniability” defenses to the serial impeachable violations of federal laws as did AG Meese, as a patriot, “defraud” President Reagan. See § 14 below.

Hence, the importance of the PCLOB’s Report to President Obama re the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP. Because all of the 1982-2015 AGs were patriots, it is time to reset the delicate balance of the Separation of Powers. See § 11 below.

41 8. The historical “known-known”, “known-unknown”, and “unknown-unknown” analysis of President Ford’s 1974-1975 WH Chief of Staff Rumsfeld, President Ford’s 1975-1977 DOD Secretary Rumsfeld, and President Bush’s 2001-2006 DOD Secretary Rumsfeld

The commenter suggests that the PCLOB apply with 20/20 hindsight former-DOD Secretary Donald Rumsfeld’s February 12, 2002 historical fact analysis prism standard as to “known-known”, “known-unknown”, and “unknown-unknown” facts. President Ford’s 1974- 1975 WH Chief of Staff Donald Rumsfeld understood that when implementing the President’s Article II Commander in Chief inherent authority to protect the nation from enemies, that the President would know “known-known” facts that were “unknown-unknown” facts to the Article I Congress and the Article III Judges. He would become President Ford’s 1975-1977 DOD Secretary and President Bush’s 2001-2006 DOD Secretary. By applying his historical prism, the PCLOB can determine whether after the enactment of the USA Freedom Act, the Article I Congress and Article III Judges, including the FISC and the Supreme Court, should know as “known-known” facts the 1982-2015 “FISC secret law” that the 1982-2015 AGs and FBI Directors have known were “unknown-unknown” facts to Congress and the FISC.

On February 12, 2002, DOD Secretary Rumsfeld explained his historical analysis prism:

Reports that say that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns -- the ones we don't know we don't know. And if one looks throughout the history of our country and other free countries, it is the latter category that tend to be the difficult ones. DoD News Briefing, 2-12-2002. Emphasis Added. http://www.defenselink.mil/transcripts/transcript.aspx?transcriptid=2636

DOD Secretary Rumsfeld also understood that an effective “plausible deniability” defense prevents impeachment because the President should not know the “known-known” facts that a Cabinet Member may know about the violation of a federal law. In December, 1970, Donald Rumsfeld was the Counselor to President Nixon. He would become a 1971-1972 Member of President Nixon’s Cabinet as Director of Economic Stabilization Program. One of his key staff members was Dick Cheney. When he was President Ford’s 1974-1975 Chief of Staff, his Assistant Chief of Staff was Dick Cheney. On November 20, 1975, he became President Ford’s DOD Secretary. His successor Chief of Staff was Dick Cheney (1975-1977).

DOD Secretary Rumsfeld understood the importance of this historical prism analysis because he knew there were “known-known” facts he knew as the 1975-1977 and 2001-2006 DOD Secretary that to Presidents Ford and Bush were “unknown-unknown” facts. He knew his Presidents did not know that they did not know the facts re their NSA Directors conducting warrantless surveillance of U.S. citizens. He knew that one of the key Watergate issues had been whether President Nixon had known that AG Mitchell had secured information re U.S. citizens from warrantless domestic wiretaps. He knew that the best “plausible deniability” defense for a President was the use of a White House (WH) “stovepipe” whereby any decision that raises the possibility of the violation of a federal law should bypass by the President. Those “unlawfull” decisions would be made by a faux “Commander in Chief” who was not the President.

The fact that there are “known-known” facts known to a President’s Chief of Staff but not known to his President, would have been a critical mens rea fact issue for a President Nixon impeachment proceeding. The Watergate hearings revealed that President Nixon’s Chiefs of Staff John Ehrlichman and H.R. Halderman had withheld facts from President Nixon in order to provide President Nixon with a “plausible deniability” defense to AG Mitchell’s impeachable violations of laws. Senator Howard Baker made the “plausible deniability” issue the now “Past is Prologue” Watergate analysis question: Who knew what and when did they know it?

The PIDB pilot project to declassify President Reagan’s Administration staff’s e-mails, will be of great assistant to historians who ask the who-knew-what-and-when-did-they-know-it questions. That question could be asked to learn who in President Reagan’s administration knew that AG Smith had approved CIA Director Casey’s back door warrantless domestic surveillance of the 1982-1985 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. Historians could ask the who-knew-what-and-when-did- they-know-it question of USG attorneys in the Administrations of Presidents Bush, Clinton, Bush, and Obama, as to the implementation of the Top Secret “FISA secret law” that is explained the May 24, 1984 in “OLC Olson FISA Memo” that is now in AG Lynch’s archive custody.

DOD Secretary Rumsfeld’s “known-known”, “known-unknown”, and “unknown- unknown” fact-analysis is helpful in understanding the 1978-2015 violations of the exclusivity provision of the FISA. It unbundles the 1978-2015 Presidents’ mens rea fact issue as to their “unknown-unknown” knowledge of the facts of NSA warrantless domestic surveillance from the “known-known” facts of DOD Secretaries, Defense Intelligence Agency Directors, NSA Directors, CIA Directors, and FBI Directors. This is a “Past is Prologue” fact issue because President Obama now has a 2015 duty to decide whether to file a § 413 (b) of the National Security Act “corrective action” plan to remedy the 1978-2015 serial violations of the exclusivity provision of the FISA that have heretofore been 1978-2015 “unknown-unknown” facts to Presidents Carter, Reagan, Bush, Clinton, Bush, and Obama. See § 13 below.

Both of President Ford’s 1974-1977 Chiefs of Staff Rumsfeld and Cheney knew “known- known” facts that they knew that President Ford did not know about his NSA TSP. Chiefs of Staff Rumsfeld and Cheney knew that President Ford did not know as a “known-known” fact that his DOD Secretaries James Schlesinger (1973-1975) and Donald Rumsfeld (1975-1977) were conducting domestic surveillance of targeted U.S. citizens. On December 19, 1974 President Ford issued a de facto E.O. which delegated decisions re domestic surveillance of U.S. citizens to the AG. http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB178/surv05.pdf. See 10-3-13 Robert Review Group Comments § F. http://snowflake5391.net/review_group_comments.pdf .

President Ford’s Chiefs of Staff Rumsfeld and Cheney knew that President Ford delegated to AGs Saxbe and Levi the authority to conduct warrantless surveillance of targeted U.S. citizens. This provided President Ford with a “plausible deniability” defense to any putative House impeachment investigation that this NSA warrantless domestic surveillance of U.S. citizens was a violation of the Posse Comitatus Act (PCA) limitations on domestic military law enforcement. President Ford’s Top Secret December 19, 1974 de facto E.O. was not declassified and reclassified until July 22, 1998. See 10-3-13 Robert Review Group Comments § F.

43 Both of President Ford’s 1974-1977 Chiefs of Staff Rumsfeld and Cheney also knew as “known-known” facts, that President Ford did not know that USG Church Committee witnesses did not inform the Church Committee of the NSA domestic surveillance of targeted U.S. citizens. They knew the DOD Joint Chiefs of Staff knew that NSA Director General Lew Allen (1973- 1977) and DIA Directors General Samuel Wilson (1976-1977) had conducted DOD domestic surveillance of U.S. citizens. They knew that this was pursuant to the delegated orders of President Ford’s AGs Saxbe (1973-1975) and Levi (1975-1977). They knew that the AGs knew that they were making there surveillance Orders as de facto faux “Commanders in Chief.”

If the PIDB recommends that automatic declassification of President Reagan’s staff’s e- mails should be expanded, then this could include the digitization of the pre-e-mail typed Article II documents of the staffs of Presidents Nixon, Ford, and Carter. With a specifically crafted algorithm, an historian could learn of a “paper trail” of a daisy-chain of 1969-2015 patriots who knew that Top Secret DARPA algorithms had been used to data mine 1969-2015 NSA data servers that had not been reported to the Article I “Gang of Eight” as required by § 413 (a) of the National Security Act, or to the 1978-2015 FISC as required by the FISA of 1978.

An ambitious historian team could learn which of the daisy-chain of USG officials knew of the 1969-2015 warrantless surveillance of U.S. citizens’ comingled stored content data:

A. AGs: John Mitchell (1969-1972), Richard Kleindienst (1972-1973), Elliot Richardson (1973), William Saxbe (1973-1975), Edward Levi (1975-1977), Griffin Bell (1977-1979), Benjamin Civilleti (1979-1981), William French (1981-1985), Edwin Meese (1985-1988), Richard Thornburgh (1988-1991), William Barr (1991-1993), Janet Reno (1993-2001), John Ashcroft (2001-2005), Alberto Gonzales (2005-2007), Acting AG Peter Keisler (2007), Michael Mukasey (2007-2008), and Eric Holder (2009-2015).

B. DOD Secretaries: Melvin Laird (1969-1973), Elliot Richardson (1973), James Schlesinger (1973-1975), Donald Rumsfeld (1975-1977), Harold Brown (1997-1981), Casper Weinberger (1981-1987), Frank Carlucci (1987-1989), Dick Cheney (1989-1993), Les Aspin (1993-1994), William Perry (1994-1997), William Cohen (1997-2001), Donald Rumsfeld (2001-2006), Robert Gates (2006-2011), Leon Panetta (2011-2013), Chuck Hagel (2013-2015), and Ashton Carter (2015-)

C. DIA Directors: General Joseph Carroll (1961-1969), General Donald Bennett (1969-1772), Admiral Vincent De Poiz (1972-1974), General Daniel Graham (1974-1975), General Samuel Wilson (1976-1977), General Eugene Tighe (1977-1981), General James Williams (1981-1985), Lt. General Leonard Perroots (1985-1988), General Harry Soyster (1988-1991), (Acting) Dennis Nagy (1991), General James Clapper (1991-1995), General Kenneth Minihan (1995-1996), General Patrick Hughes (1996-1999), Vice Admiral Thomas Wilson (199-2002), Vice Admiral Lowell Jacoby (2002-2005), Major General Michael Maples (2005-2009), Lt. General .Ronald Burgess (2009-2012), and Lt. General Michael Flynn (2012-).

D. NSA Directors: Lt. General Marshall Carter (1965-1969), Admiral Noel Gayler (1969-1972), General Samuel Phillips (1972-1973), General Lew Allen (1973-1977), Admiral Bobby Inman (1977-1981), Lt. General Faurer (1981-1985), General William Odom (1985-1988), Admiral William Studeman (1988-1992), Vice Admiral Mike Mc Connell (1992-1996), Lt. General

44 Kenneth Minihan (1996-1999), General Michael Hayden (1999-2005), General Keith Alexander (2005-2014), and Admiral Michael Rogers (2014-).

E. CIA Directors: Richard Helms (1966-1973), James Schlesinger (1973), William Colby (1973-1976), George Bush (1976-1977), Admiral Stansfield Turner (1977-1981), William Casey (1981-1987), William Webster (1987-1991), Robert Gates (1991-1993), R. James Woolsey (1993-1995), John Deutch (1995-1996), George Tenet (1997-2004), Porter Goss (2004-2005), General Michael Hayden (2006-2009), Leon Panetta (2009-2011), David Petraeus (2011-2012), and (Acting) Michael Morell (2012-2013), and John Brennan (2013-).

F. FBI Directors: J. Edgar Hoover (1936-1972), L. Patrick Gray (1972-1973), (Acting) William Ruckelshaus (1973), Clarence Kelley (1973-1978), (Acting James Adams (1978), Judge William Webster (1978-1987), (Acting) John Otto (1987), Judge William Sessions (1987-1993), (Acting) Floyd Clarke (1993), Judge Louis Freeh (1993-2001), (Acting) Thomas Pickard (2001), Robert Mueller (2001-2013), and James Comey (2013-).

G. ODNI Directors: 2005-2007 John Negroponte, 2007-2009 Vice Admiral Mike Mc Connell, 2009-2011 Admiral Dennis Blair, and James Clapper (2010-).

The commenter is making the heavy handed point that with digitation of Presidential records, learning of the mens rea of unknown but historic Article II decision makers is now possible. The DARPA algorithms have come a long way from the Top Secret 1969-1972 algorithms that DOD Secretary Laird had used during the Laird v Tatum, 408 U.S. 1 (1972), standing and United States v U.S. District Court (Keith), 407 U.S. 297 (1972), Title III litigation.

Former-Secretary Rumsfeld’s “known-known”, “known-unknown”, and “unknown- unknown” fact analysis will become more important if AG Lynch decides not to use the FOIA Exemptions 1 and 3 because of the E.O. 13256 3.3, Automatic declassification, 25 year standard, but uses the FOIA exemption 5 attorney-client privilege defense. If so, then a “fraud” exception to the attorney-client privilege defense would come in to play. "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). With the digitation of USG records and the use of 2015 algorithms, it will easy to prove the mens rea of either the “attorney” or the “client” when asking who-knew-what-and-when-did-they-know-it questions.

If AG Lynch uses a known-known”, “known-unknown”, and “unknown-unknown” fact analysis when reading DOJ case file notes and e-mails, then she will have another problem. As of April 1, 2009, the NYS Rules of Professional Conduct Rule 3.3(a)(3) places on an attorney an affirmative 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.” Id. Emphasis added. If AG Lynch learns that USG attorneys knew as “known-known” facts that FRCP 11 representations of facts were false, then she has to take “responsible remedial measures” to cure misrepresentations to Article III Judges.

Therefore, the PCLOB should apply a “known-known”, “known-unknown”, and “unknown-unknown” fact analysis to E.O. 12333 domestic “special activities.” AG Lynch will.

45 9. Former- NARA Information Security Oversight Office (ISSO) Director Leonard’s April 30, 2008 Senate Judiciary Committee Secret Law and the Threat to Democratic and Accountable Government hearing testimony re “secret law” and unchecked executive power

The commenter respectfully suggests that the PCLOB heed the warning of former- NARA Information Security Oversight Office (ISSO) Director J. William Leonard re the “secret law” that he astutely framed in his testimony to the Senate Judiciary Committee at its April 30, 2008 Secret Law and the Threat to Democratic and Accountable Government hearing. “It is as if Lewis Carroll, George Orwell, and Franz Kafka jointly conspired to come up with the ultimate recipe for unchecked executive power.” Id. Emphasis added. With the sunset of the USA Patriot Act and the enactment of the USA Freedom Act, the PCLOB should recommend the end of the Article II “FISA secret law” that has been the legal basis for the 1982-2015 CIA Directors to conduct back door warrantless domestic searches of the 1982 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. See § 10 below.

On April 30, 2008, former-ISSO Director Leonard testified before the Senate Judiciary Committee. He provided his wisdom as to the dangers to a democracy when the Executive Branch implements Article II “secret law” not known to the other Branches of 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 the ultimate recipe for unchecked executive power. Id. 8. Emphasis Added. The PCLOB Members should consider his warning when they learn the details of the Top Secret Article II “FISA secret law” that is an “unknown-unknown” law to the 535 Members of Congress and the FISC. If the PCLOB learns that the “FISA secret law” is also an “unknown- unknown” law to President Obama, then there is a 2015 faux “Commander in Chief” with “unchecked executive power.” If so, then President Obama should also know this fact in order that President Obama can fulfill his § 413 (a) of the National Security Act “shall” Congressional Notification duty and his § 413 (b) of the National Security Act “shall” duty to file a “corrective action” plan with Congress to cure illegal intelligence activities See §§ 11 and 12 below.

46 10. The PCLOB should seek the guidance of CIA General Counsel Krass (2014-), the 2013- 2014 Acting AAG of the OLC, on the issue of “who guards the guardians” when the 2015 “FISA secret law” of the May 24, 1984 “OLC Olson FISA Memo” is implemented

In his Journal of National Security Law & Policy, Vol.2:201 (2008) article, former- Assistant CIA General Counsel Radsan explained how the CIA Office of General Counsel decision-making process worked. He explained that it was based on the direct legal communications between the CIA General Counsel and the AAG of the OLC:

The General Counsel usually initiates requests for legal opinions from the Justice Department. She may want a second opinion on advice she has already given the Agency, or she may want somebody else’s license on the line. Such CIA-DOJ interactions are tightly compartmentalized. At DOJ’s Office of Legal Counsel, the group that handles the request may be limited to the lawyer who has the “CIA account,” along with the chief and a deputy chief. The chief of OLC will, in turn, be inclined to brief the appropriate division chief, the Deputy Attorney General, and the Attorney General. If necessary, the Justice Department lawyers on the matter can be kept to a handful. The number of OGC lawyers will be similarly small: the General Counsel, the Deputy General Counsel, the chief lawyer to the DO, and one or two OGC lawyers assigned to the relevant division(s). Overall, not may guards are involved in legal opinions on sensitive topics. Id. 238. Emphasis added.

Former-CIA Assistant General Counsel Radsan discusses the Presidents’ rule of law reliance upon CIA General Counsels. This is a compelling observation if President Obama relies upon CIA General Counsel Krass’ legal opinion whether the Riley v California “get a warrant” holding applies to the 2015 “FISA exempt” NSA TSP “haystacks” of U.S. persons content data:

In basic terms, the Presidents varying approaches to the rule of law parallel those of the General Counsels at the CIA. Some Presidents, like President Carter, may have strictly adhered to the letter of the law on intelligence activities. Some Presidents, like President Reagan, may have strayed. Some CIA General Counsels have followed their President’s course; some have strayed. Even when Presidents and General Counsels share similarly courses, they are not always in lock-step, because too many layers of executive authority- White House Counsel, the National Security Adviser, the DCIA,

47 and other staffers –often stand between them. Yet the President and the General Counsel have an effect on each other, even if that effect is indirect and not easily measured. Id. 255. Emphasis added.

The PLCOB has an opportunity to learn whether President Obama’s “approaches to the rule of law parallel” CIA General Counsel Krass’ 2015 “rule of law” approach. CIA General Counsel Krass, as the Constitution’s “Guardian of the Guardians,” has a 1999-2015 USG institutional memory. She was 1999-2000 Deputy Legal Advisor to President Clinton’s National Security Council, 2001-2009 OLC Attorney-Advisor-Senior Counsel, 2009-2010 Special Counsel to the President for National Security Affairs and Deputy Legal Adviser at the National Security Council, 2011-13 Principal Deputy AAG of the OLC, and 2013-2014 Acting AAG of the OLC. As the 2009-2010 Special Counsel to the President for National Security Affairs and Deputy Legal Adviser at the National Security Council, President Obama obviously trusts her legal judgment. Therefore, the PCLOB should seek guidance from CIA General Counsel Krass.

CIA General Counsel Krass knows whether after the USA Freedom Act, CIA Director Brennan continues in 2015 to conduct back door warrantless domestic searches of the 1982- 2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. CIA General Counsel Krass also knows why Acting AAG of the OLC Thompson determined in his July, 2014 “OLC Riley v California Memo” that the Riley v California holding that the Fourth Amendment applies to a U.S. citizen’s cellphone’s stored content data, does not apply to the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data in USG servers. See §§ 4, 5 above.

CIA General Counsel Krass can also consult with her predecessor 2009-2013 CIA General Counsel Stephen Preston. He was the 1993-1995 DOD Principal Deputy General Counsel for DOD General Counsel Jamie Gorelick who had succeeded DOD Secretary Dick Cheney’s CIA General Counsel David Addington. He was the 1995-1998 Civil Division DAAG responsible for appellate litigation. He is now the DOD General Counsel (2013-). He knows whether the September 5, 2014 re-reclassified March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” cites to AAG of the OLC Olson’s Top Secret FISA Memo sent to AG Smith. “Re Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1979.” “Traditional Fourth Amendment analysis holds that once evidence is constitutionally seized, its dissemination or subsequent use raises no additional Fourth Amendment question.” Id.

CIA General Counsel Krass can also consult with DNI General Counsel Robert Litt (2009-). He has reviewed and approved all of 2015 Intelligence Community PPD-28 Reports filed with DNI Director Clapper. He was the 1993-1999 Deputy AAG of the Criminal Division. He knows why DNI Clapper, the 1991-1995 DIA Director, has approved the 2015 CIA PPD-28 plan with its “CIA exceptions” to the exclusivity provision of the FISA. See § 4 above.

The commenter believes that if the PCLOB asks CIA General Counsel Krass whether she agrees with the July, 2014 Top Secret “OLC Riley v California Memo,” she will say no. Upon information and belief, if asked, she will inform the PCLOB whether she recommended that President Obama apply the Riley v California holding to the E.O. 12333 NSA TSP so as to require a FISC warrant prior to any searches of U.S. citizens’ comingled stored content data.

48 11. The AGs, FBI Directors, and CIA Directors “defrauding” their Presidents re the serial impeachable violations of the “exclusivity provision” of the FISA of 1978

The commenter submits that the PCLOB has a duty to learn whether AGs Smith and Meese had “defrauded” President Reagan by not informing President Reagan of the existence and implementation of the May 24, 1984 Top Secret “OLC Olson FISA Memo.” This was to provide the President with a “plausible deniability” defense to the serial impeachable violations of the exclusivity provision of the FISA. If so, then PCLOB has a duty to learn whether AG Holder had “defrauded” President Obama by not informing President Obama of the September 5, 2014 re- reclassified March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” and the July, 2014 “OLC Riley v California Memo.” In order to eliminate a “defrauding” of President Obama issue, the PCLOB should recommend that AG Lynch provide President Obama with copies of the 1984, 2004, and 2014 Top Secret OLC FISA Memos. See § 13 below.

The commenter is asserting that there are Top Secret OLC documents that reveal the existence of 1982-2015 E.O. 12333 illegal CIA domestic “special activities” that the 1982-2015 CIA Directors have conducted with the knowledge of the 1982-2015 AGs and FBI Directors. The AGs and FBI Directors knew that their Presidents have had the § 413 (a) of the National Security Act “shall” duty of the President to keep the Intelligence Committees “fully and currently” informed of covert intelligence community activities. As a result, the 1982-2015 AGs, FBI Directors, and CIA Directors decided to “defraud” their Presidents to provide their Presidents with a “plausible deniability” defense to impeachable violations of federal laws. See § 12 below.

On November 25, 2011, the National Security Archive posted on its website the Iran- Contras IC Walsh’s staff’s March 21, 1991 "Memoranda on Criminal Liability of Former President Reagan and of President Bush." This non-profit organization had secured this document pursuant to a FOIA request. As a result, the public learned that twenty years before IC Walsh had determined in 1991 that President Reagan and Vice President Bush had no Iran- Contras criminal liability. IC Walsh concluded the President and VP, who were both not attorneys, had relied upon the legal opinions of AG Meese and other USG attorneys. Therefore, the President and VP did not have the mens rea to have committed a crime. See Document 1- Parts 1-4 posted at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB365/index.htm.

The National Security Archives document also revealed that IC Walsh had alleged that AG Meese and other Cabinet Members may have “defrauded” President Reagan and VP Bush by application of 18 U.S.C. § 371, Conspiracy to commit offense or to defraud United States:

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.

On August 4, 1993, IC Walsh ended his investigation and the “defrauding” of President Reagan allegations were no longer pursued. IC Walsh explained in his Memoir, Firewall: The Iran-Contra Conspiracy and Cover-Up, that he knew he had lost the support of Congress to properly fund his investigation and prosecutions as a check and balance on future Presidents.

49 One of the reasons that the plaintiff filed Robert I v CIA in 2000 and Robert II v CIA and DOJ in 2002 was to secure the release of “North Notebook” documents. He asserted that those CIA classified documents were connect-the-dots documents with other Robert FOIA requested documents. He asserted that the “mosaic of documents” reveal whether AG Meese and FBI Director Judge Webster knew that CIA Director Casey was conducting an illegal E.O. 12333 Top Secret CIA domestic “special activity at the Florida HMO International Medical Center, Inc. in violation of the Boland Amendment and President Reagan’s § 413 (a) of the National Security Act “shall” Congressional Notification duty. On December 14, 2011, the plaintiff filed a “corrected” Robert II v CIA and DOJ Status Affidavit. He informed EDNY Judge Seybert that the theory of his FOIA action had gained evidentiary support from IC Walsh’s "Memoranda on Criminal Liability of Former President Reagan and of President Bush" that explained IC Walsh’s “defrauding” of President Reagan theory. See the 12-14-11 Robert II v CIA and DOJ Status Affidavit § C. http://snowflake5391.net/12-14-11_RIIvCIAandDOJStatusAffidavit%20.pdf.

The Robert II v CIA and DOJ plaintiff also informed Judge Seybert how the CIA classified “North Notebook” documents were connect-the-dots to the other FOIA requested documents he had sought in 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), and Robert VIII v DOJ, HHS, and SSA, 439 Fed. Appx 32 (2d Cir. 2011), cert. den. 132 S. Ct. 1549 (2012). He explained how the “North Notebook” documents were connect-the-dots documents to the Robert VII v DOJ “FISC Robert” documents. See 8-15-12 Robert II v CIA and DOJ Status Affidavit § B. http://snowflake5391.net/8-15-12_RobertIIvCIA_Status_Affidavit.pdf,

The Robert II v CIA and DOJ plaintiff also informed Judge Seybert of the status of his Robert VIII v DOJ, HHS, and SSA quiet settlement offer. He advised the plaintiff had filed a 316 page White Paper (WP) with EDNY U.S. Attorney Lynch’s EDNY AUSA Kathleen Mahoney in support of the quiet settlement that the plaintiff had made in both Robert II v CIA and DOJ and Robert VIII v DOJ, HHS, and SSA, See 8-15-12 Robert II v CIA and DOJ Status Affidavit § C. That Robert VIII v DOJ, HHS, and SSA WP linked the CIA classified Robert II v CIA and DOJ “North Notebook” documents with the CIA classified Robert VII v DOJ “FISC Robert” documents that reveal whether the plaintiff had been CIA Director Casey’s illegal target of DOD Secretary Weinberger’s illegal E.O. 12333 Top Secret “FISA exempt” NSA TSP. See Robert VIII WP §§ M-O, V-JJ, and TT- AAA. http://snowflake5391.net/7_27_10_RobertVIII.pdf.

The August 15, 2012 Robert II v CIA and DOJ Status Affidavit with its renewed quiet settlement offer, was written prior to the June, 2013 Snowden leaks. After the Snowden leaks, the plaintiff had informed Judge Seybert of his belief that CIA General Counsel Stephen Preston would recommend that his clients consider accepting the plaintiff’s quiet settlement offer in order to protect the CIA sources and methods revealed in the Robert FOIA actions. The plaintiff’s belief was based on the fact that CIA General Counsel Preston knew that the Robert VII v DOJ “FISC Robert” documents withheld pursuant to the CIA’s use of FOIA exemption I and the “Glomar Response,” were now in the custody of co-defendant CIA Director David Petraeus (2012-2013). CIA General Counsel Preston knew whether co-defendant CIA Director Petraeus knew that HHS General Counsel Juan del Real (1981-1985) was CIA Director Casey’s illegal domestic CIA agent when he initiated the 1984 HHS-DOJ-FBI “Fraud Against the Government” investigation of Robert to secure Robert’s incarceration and disbarment. See § 14 below.

50 The June, 2013 Snowden leaks increased the possibility that the Robert II v CIA and DOJ co-defendants CIA Director Brennan (March 8, 2013-) and AG Holder (2009-2015) would agree to a quiet settlement. CIA General Counsel Preston knew that co-defendant Holder knew that co- defendant CIA Director Brennan had been President Obama’s 2009-2013 Counterterrorism Deputy Assistant to the President and Deputy National Security Adviser of Homeland Security and Counterterrorism. He had the duty to inform the President that the 1982-2013 CIA Directors had conducted “back door” warrantless domestic searches of the 1982-2013 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. AG Holder knew that the 1982-2013 E.O. 12333 “FISA exempt” NSA TSP was conducted without any President providing § 413 (a) of the National Security Act “shall” Notification to the Congress and in serial impeachable violation of the exclusivity provision of the FISA. See § 12 below.

CIA Director Brennan had been a 25 year veteran of the CIA (1979-2004). He knew how CIA Director Casey (1981-1986) had compartmentalized the 1982-1985 E.O. 12333 CIA domestic “special activities.” From 1999-2001, he was the Chief of Staff of CIA Director Tenet. From 2002-2004 he was CIA Director Tenet’s CIA Deputy Executive Director before becoming the 2004-2005 interim director of the new ODNI National Counterterrorism Center. This was when 1999-2005 NSA Director Hayden became the April 21, 2005-May 26, 2006 ODNI Principal Deputy Director prior to becoming the 2006-2009 CIA Director.

AG Holder had been a 1976-1988 DOJ attorney in the Public Integrity Section before becoming a D.C. Superior Court Judge. President Clinton nominated him to be AG Reno’s DAG in 1997. DAG Holder (1997-2001) succeeded DAG Gorelick (1994-1997) who had been the 1993-1994 DOJ General Counsel who had succeeded DOD Secretary Dick Cheney’s DOD General Counsel David Addington (1991-1993). As a result, CIA General Counsel Preston (2009-2013), the 1993-1995 DOD Principal Deputy General Counsel, knew in Robert II v CIA and DOJ that AG Holder knew whether CIA Director Brennan conducted back door warrantless domestic searches of 1982-2013 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data without the knowledge of President Obama.

The commenter asserts that these Robert II v CIA and DOJ, Robert VII v DOJ, and Robert VIII v DOJ, HHS, and SSA facts are all connected because they reveal the E.O. 12333 policy and practice of the 1982-2015 AGs and CIA Directors “defrauding” their Presidents in order to provide their Presidents with “plausible deniability” defenses to the serial impeachable violations of federal laws. The 1982-2015 AGs and the CIA Directors believed their decisions were based on the President’s unlimited Article II Commander in Chief inherent authority to protect the nation from enemies as determined by the May 24, 1984 “OLC Olson FISA Memo.”

AG Meese and CIA Director Casey “defrauded” President Reagan because they did not inform President Reagan that HHS General Counsel del Real was a CIA domestic agent both as the 1981-1985 HHS General Counsel and as IMC President Miguel Recarey’s Chief of Staff who administered unaudited HHS funds to pay for the medical treatment and supplies for the Contras in violation of the Boland Amendment. HHS General Counsel del Real also had diverted unaudited HHS funds to pay for the “immaculate construction” of the E.O. 12333 Top Secret “FISA exempt” NSA TSP servers that could not be paid for with classified OMB funds because of the serial violation of § 413 (a) of the National Security Act. See the 11-30-11 Robert VIII Petition for a writ of certiorari §§ A-C, H. http://snowflake5391.net/Robert8vDOJpetition1.pdf.

51 AG Holder and CIA Director Brennan “defrauded” President Obama because they did not want President Obama to know that the 1982-2015 CIA Directors conducted back door warrantless domestic searches of the 1982-2013 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. They did not inform President Obama of this fact in order to provide President Obama with a “plausible deniability” to serial violations of § 413 (a) of the National Security Act, the exclusivity provision of the FISA of 1978, the Posse Comitatus Act of 1978 limitation on military domestic law enforcement, and the Social Security Act. See the 12-3-13 OLC WP seeking the release of the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” http://snowflake5391.net/12_3_13_FISA_MEMOS.pdf.

AG Holder and CIA Director Brennan also “defrauded” President Obama because they knew as a “known-known” fact that President Obama did not make the September 5, 2014 re- reclassification of the May 24, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” They knew this decision was made after Acting AAG of the OLC Thompson issued his July, 2014 Top Secret “OLC Riley v California FISA Memo.” The PCLOB can determine whether the commenter’s allegation is true by asking DOD General Counsel Preston (2013-). He was the 2009-2013 CIA General Counsel when the March 18, 2011 reclassification decision was made. He knows who made that March 18, 2011 decision and why. See §§ 2-5 above.

The PCLOB should consider in their review of E.O.12333 counterintelligence “special activities,” a “Past is Prologue” analysis by reference to IC Walsh staff’s March 21, 1991 "Memoranda on Criminal Liability of Former President Reagan and of President Bush." IC Walsh’s review interpretation of 18 U.S.C. § 371, Conspiracy to commit offense or to defraud United States, may be helpful when drafting the PCLOB’s Report to the President when reporting on the comments filed pursuant to the PCLOB’s March 23, 2015 Federal Register Notice Request for Public Comments on Activities Under Executive Order 12333. “… the Board seeks comments regarding any concerns about counterterrorism activities conducted under E.O. 12333 based on the information that is currently unclassified and publicly available, as well as suggestions for questions the PCLOB should ask as part of its inquiry.” Id. Emphasis added.

The fact issue of whether AG Meese and CIA Director Casey had “defrauded” President Reagan can be determined by a review of the DOJ 1999-2015 Robert I v DOJ and Robert II v CIA and DOJ case file notes and e-mails. Those documents can be compared to the classified e-mails that are subject of the PIDB-NARA pilot project to determine who-knew-what-and-when. See § 7 above.

The fact issue of whether AG Holder and CIA Director Brennan had “defrauded” President Obama is more telling because President Obama is a former Constitutional Law Professor who cannot be bamboozled on Constitutional issues. There are reams of DOJ Robert VIII v DOJ, HHS, and SSA case file notes and e-mails that reveal whether AG Holder knew that the 1982-2015 CIA Directors conducted back door warrantless domestic searches of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data.

The PCLOB litmus test whether AG Holder “defrauded” President Obama, is whether AG Holder provided President Obama with a copy of the May 24, 1984 Top Secret “OLC Olson FISA Memo.” If not, then AG Holder “defrauded” President Obama to provide the President with a “plausible deniability” defense to the violation of the exclusivity provision of the FISA.

52 12. The June 2, 2015 enactment of the USA Freedom Act provides President Obama with an opportunity to end the 1982-2015 serial impeachable violations of the President’s § 413 (a) National Security Act “shall” Congressional Notification duty

The Congress explicitly used the word “shall” in the 50 U.S.C. § 413, Reports to Congressional committees of intelligence activities and anticipated activities. This was a necessary Article I check and balance to keep the Congress “fully and currently” informed of the President’s Article II intelligence activities. The § 413 (a) states:

(a) Reports to Congressional committees of intelligence activities and anticipated activities (1) The President shall ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity as required by this subchapter. (2) Nothing in this subchapter shall be construed as requiring the approval of the congressional intelligence committees as a condition precedent to the initiation of any significant anticipated intelligence activity. Emphasis added.

The Congress intended that the President’s “shall” reporting duty includes informing the Intelligence Committees of “anticipated intelligence activity.” President Obama has the June, 2015 duty of providing the Intelligence Committees with facts re the USG’s implementation of the USA Freedom Act with its prohibition on the USG retaining stored metadata on USG servers. The Intelligence Committees were never informed of the fact that the 1982-2015 CIA Directors conducted back door warrantless domestic surveillance 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. Therefore, President Obama has a 2015 “shall” duty to inform the Intelligence Committees of the “anticipated intelligence activity” re the 1982-2015 E.O. 12333 servers that store U.S. citizens’ comingled stored content data including at the Utah Data Center. See § 13 below.

The commenter suggests that the PCLBO recommend to AG Lynch that she recommend that President Obama comply with his Act § 413 (a) “shall” duty report to the Intelligence Committees the President’s “anticipated intelligence activity” both as to U.S. citizens” stored metadata and as to 1982-2015 U.S. citizens’ comingled stored content data. The USA Freedom Act provides President Obama with an opportunity to end the serial § 413 (a) violations in 2015.

53 The commenter has made his recommendation that President Obama issue a new E.O. that includes the use of a “Riley v California FISC warrant” requirement so that President Obama complies with his § 413 (a) duty. He can inform the Intelligence Committees that the 1982-2015 E.O. 12333 Top Secret heretofore “FISA exempt” NSA TSP servers would no longer be “FISA exempt” as to searches for 1982-2015 E.O. 12333 NSA TSP U.S. citizens’ comingled stored content data. By requiring a “Riley v California FISC warrant” requirement for any Intelligence Community (IC) analysts’ search of the 1982-2015 E.O. 12333 NSA TSP servers, U.S. citizens’ privacy and Fourth Amendment rights would be protected. At the same time, the IC analysts would continue their warrantless searches of foreigners’ comingled stored content data that is necessary to protect the nation from enemies. See § 5 above and § 13 below.

The commenter respectfully submits that there is not a 2015 terrorist in the world who does not know that the NSA and the CIA conduct “dragnet” scoops of all cell phones and e-mail content data that is generated anywhere in the world. Whereas AAG of the AG Smith and AAG of the OLC Olson believed in 1984 that this “Top Secret” should never be known to the general public for fear of the terrorists learning of the Top Secret E.O. 12333 NSA TSP, the Snowden leaks ended that Top Secret strategy. Indeed, the legislative process of enacting the USA Freedom Act confirmed what the terrorists of the world already knew: The USG has stored the content of foreign cell phone and e-mail in order that the NSA and CIA analysts can “go back in time” to transcribe the content of suspected terrorists cell phones and e-mails to eliminate the terrorists and their co conspirators. Thus, this “Top Secret” is simply no longer a “Top Secret.”

Therefore, now is the time for President Obama to end the serial impeachable violation of the § 413 (a) of the National Security Act “shall” duty to keep the Intelligence Committees “fully and currently” informed. This does not mean reveal tactical Top Secrets, but a level of § 413 (a) Notification that was implemented in reporting the Section 215 metadata program to the Intelligence Committees. That level of Notification is revealed in DNI Director Clapper’s declassified and reclassified 2006-2015 FISC Orders posted on the IC on the Record website.

The commenter submits that President Obama’s compliance with his § 413 (a) of the National Security “shall” Congressional Notification re the heretofore Top Secret 1982-2015 E.O. 12333 “FISA exempt” NSA TSP, will begin to rebuild 535 Members of Congress trust in the NSA TSP that was lost when the Members of Congress read the Snowden leaked documents. Many Members of Congress have an innate fear of an Orwellian-Hooveresque NSA TSP that contains 1982-2015 U.S. citizens’ comingled stored content data at the Utah Data Center that is conducted by the CIA without any Article I, Article II, or Article III checks and balances. President Obama’s 2015 compliance with the President § 413 (a) duty to “fully and currently” inform the Intelligence Committees of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP, will stop the ongoing slippery slope of the serial impeachable violations of § 413 (a).

The commenter respectfully submits that President Obama’s compliance with his § 413 (a) “shall” duty to keep the Intelligence Committees “fully and currently” informed, will also go a long way in addressing the “secret law” problem identified by Information Security Oversight Office (ISSO) Director J. William Leonard in his testimony to the Senate Judiciary Committee at its April 30, 2008 Secret Law and the Threat to Democratic and Accountable Government hearing. “It is as if Lewis Carroll, George Orwell, and Franz Kafka jointly conspired to come up with the ultimate recipe for unchecked executive power.” Id. Emphasis added. See § 9 above.

54 13. President Obama has a § 413 (b) of the National Security Act “shall” duty to file a “corrective action” plan to remedy the illegal intelligence activities of 1982-2015 CIA Directors conducting back door warrantless domestic searches of E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data

The Congress explicitly used the words “shall ensure” in the 50 U.S.C. § 413, Reports to Congressional committees of intelligence activities and anticipated activities. The Congress required that the President “shall” file a “corrective action” plan with Congress that shall “ensure” a remedy for the illegal intelligence activities. The § 413 (b) states:

(b) Reports concerning illegal intelligence activities The President shall ensure that any illegal intelligence activity is reported promptly to the congressional intelligence committees, as well as any corrective action that has been taken or is planned in connection with such illegal activity. Id. Emphasis added.

The commenter asserts that if President Obama does not inform Congress that the exclusivity provision of the FISA continues to be an “unconstitutional” encroachment on the President’s Article II Commander in Chief “inherent authority” to conduct CIA back door warrantless domestic searches of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data, then CIA Director Brennan will continue in 2015 to violate the exclusivity provision of the FISA of 1978. The commenter is asserting that if President Obama informs the Intelligence Committees that he has adopted the May 24, 1984 Top Secret “OLC Olson FISA Memo,” then President Obama is admitting that his 2009-2015 CIA Directors have violated the exclusivity provision of the FISA of 1978.

The commenter’s assertion that President Obama has a “shall” duty to inform the Intelligence Committees he adopted the May 24, 1984 Top Secret “OLC Olson FISA Memo” as the FISA Top Secret “FISA secret law,” is premised on the fact AG Holder, CIA Director Brennan, FBI Director Mueller, DNI Director Clapper, DOD Secretary Carter, DHS Secretary Johnson, or Assistant to the President for Homeland Security and Counterrorism Monaco have informed the President of the 1982-2015 CIA Directors back door warrantless domestic searches of the E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. However, the commenter believes that these USG officials did not inform the President of the 1982-2015 CIA Directors back door warrantless domestic violation of the exclusionary provision of the FISA. He believes they have “defrauded” the President. If so, then AG Lynch has a duty to inform the President of this fact so that he can comply with § 413 (b).

55 If President Obama makes the post-US Freedom Act determination that he will not adopt AAG of the OLC Olson’s May 24, 1984 Top Secret FISA Memo sent to AG Smith, “Re Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1979,” then he has the “shall ensure” duty to file a § 413 (b) “corrective action” plan with the Intelligence Committees. If President Obama decides to file a § 413 (b) “corrective action” plan, then he will have to decide the retroactive date when the “illegal intelligence activity” was first “illegal” as determined by an Article III Judge or by the precedential value of a Supreme Court decision such as the June 25, 2014 unanimous Riley v California decision holding that the Fourth Amendment applies to a U.S. citizen’s cell phone’s stored content data as per Chief Justice Robert’s reasoning. “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.” Id. slip op. 28. Emphasis added. See §§ 4, 5 above.

The commenter asserts that the Article III decision date that determined that the 1982 E.O. 12333 “FISA exempt” NSA TSP decision was illegal, was the Supreme Court’s June 19, 1985 Mitchell v Forsyth, 105 S.Ct. 2806 (1985) decision which reviewed 1969-1972 AG John Mitchell’s warrantless domestic surveillance of a U.S. citizen. “Mitchell’s argument, in essence, is that the national security functions of the Attorney General are so sensitive, so vital to the protection of our Nation’s well-being, that we cannot tolerate any risk that in performing those functions he will be chilled by the possibility of personal liability for acts that may be found to impinge on the constitutional rights of citizens. Id. 2812. Emphasis added. See § 18 below.

The commenter asserts that President’s retroactive date for his § 413 (b) “corrective plan,” should be when the Mitchell v Forsyth “nonacquiescence” policy decision was made by AG Meese (1985-1988) after consultation with CIA Director Casey (an attorney), CIA General Counsel Stanley Sporkin (1981-1985), SG Charles Fried (1985-1989), and AAG of the OLC Charles Cooper (1985-1988). The commenter asserts that the “smoking gun” evidence that AG Meese made the 1985 decision not to terminate CIA Director Casey’s warrantless domestic surveillance of U.S. citizens’ telephone calls, is found in the Robert VII v DOJ, 2005 U.S. Dist. LEXIS 39616, 193 Fed. Appx. 8 (2d Cir. 2006), cert. den. 127 S.Ct. 1133 (2007), “FISC Robert” documents that remain in CIA and DOJ archives. Those “FISC Robert” document were withheld pursuant to CIA Director Tenet’s CIA FOIA Officer’s use of FOIA exemption 1 and the “Glomar Response” defense as ratified on March 1, 2004 by then-OIPR James Baker who is now FBI Director Comey’s FBI General Counsel (2014-). See § 14 below.

The commenter asserts that for the President’s § 413 (b) “corrective plan” to have an accurate date as to when there were U.S. citizens who were FISA “aggrieved persons,” it will necessitate CIA Director Brennan and CIA General Counsel Krass “walking back the cat” and reviewing the “FISC Robert” documents and the DOJ and CIA 1985-1988 Robert v Holz, and 2004-2007 Robert VIII v DOJ case file notes and e-mails. The commenter asserts those documents prove whether the plaintiff was a FISA “aggrieved person” when he was CIA Director Casey’s 1980s illegal target for DOD Secretary Weinberger’s illegal NSA TSP. See § 2 above.

The commenter asserts that Congress used the § 413 (b) “shall ensure” words for the President’s “corrective plan” to provide the Intelligence Committees with an Article I reviewable remedy for illegal intelligence activities. President Obama’s 2015 § 413 (b) “corrective action” should explain how he “shall” remedy the violations of the exclusivity provision of the FISA.

56 14. The 1985-2015 Robert FOIA litigation and the status of the pending Robert II v CIA and DOJ and Robert VIII v DOJ, HHS, and SSA FOIA actions

The Robert II v CIA and DOJ FOIA action has been in a DOJ awkward posture since July 28, 2014 when the plaintiff complied with Judge Joanna Seybert’s Individual Motion Practice Rule F. After the plaintiff’s latest renewed quiet settlement offer plan based on the June 25, 2014 Riley v California decision failed, the plaintiff filed the “Plaintiff’s Local Rule 56.1 Statement of Material Facts of Motion For Summary Judgment.” The plaintiff served the co-defendants’ attorneys, CIA General Counsel Krass and EDNY U.S. Attorney Lynch, with the same Local Rule 56.1 Statement that the plaintiff had filed with the Clerk on March 25, 2013. The co-defendants had not filed their Rule F required Counter Statement by April 9, 2013. See Docket Entry 58.

CIA General Counsel Krass and EDNY U.S. Attorney Lynch also did not file their Robert II v CIA and DOJ required Local Rule 56.1 Counter Statement by August 11, 2014. On October 7, 2014, the Robert II v CIA and DOJ plaintiff filed the required Local Rule F (2) three page letter outlining his Summary Judgment Motion. It was a simple arithmetic argument that President Obama’s December 29, 2009 E.O. 13526, § 3.3 Automatic Declassification, 25 year rule applies to the four one page redacted 1985 CIA classified documents (1985+25=2010). The plaintiff also requested a pre-Motion settlement conference because CIA General Counsel Krass and EDNY U.S. Attorney Lynch had never filed the required Local Rule 56.1 Counter Statement.

CIA General Counsel Krass and EDNY U.S. Attorney Lynch also did not file the required Local Rule F (2) three page letter in opposition to the plaintiff’s October 7, 2014 three page letter outlining his Summary Judgment Motion. On November 8, 2014, President Obama nominated EDNY U.S. Attorney Lynch (1999-2001 and 2010-2015) to be AG Holder’s successor AG. On April 23, 2015, the Senate confirmed Nominee EDNY U.S. Attorney Lynch to be the AG.

Judge Seybert has not scheduled a Robert II v CIA and DOJ pre-Motion Summary Judgment conference date. Out of courtesy and respect for AG Lynch, the plaintiff will renew his request for a pre-Summary Judgment Motion for the purpose of seeking a quiet settlement. The plaintiff intends to file this June 16, 2015 PCLOB Comment with Judge Seybert.

57 The Robert VIII v DOJ, HHS, and SSA FOIA action is also in an awkward posture. On December 9, 2005, EDNY Judge Nicholas Garaufis rendered his Robert VIII v DOJ, HHS, and SSA decision and ordered the plaintiff not to file any new FOIA requests without a pre-clearance Order signed by Judge Garaufis. On December 16, 2005, the NY Times published investigative reporters James Risen and Eric Lichtblau report re the existence of a Top Secret NSA TSP that conducted warrantless domestic surveillance of U.S. citizens. Bush Lets U.S. Spy on Callers Without Courts, NY Times, 12-16-05. These two events occurred while Robert VII v DOJ was pending with a Second Circuit scheduled January 30, 2006 oral argument date.

On January 19, 2006, AG Gonzales filed his AG Memo with Senate Majority Leader Bill Frist. “Legal Authorities Supporting the Activities of the National Security Agency Described by the President.” “The President has legal authority to authorize the National Security Agency to conduct the signals intelligence activities he has described. Those activities are authorized by the Constitution and by statute, and they violate neither the Foreign Intelligence Surveillance Act nor the Fourth Amendment.” Id. Preamble summary quote emphasis added. AG Gonzales explained how Justice Jackson’s Youngstown tripartite framework “Category 1” applied to the post-9/11 NSA Terrorist Surveillance Program (TSP) because Congress enacted the September 18, 2001 Authorization for Use of Military Force (AUMF). AG Gonzales did not notify the Senate of the existence of the 1982-2006 E.O. 12333 Top Secret “FISA exempt” NSA TSP or of the Top Secret Article II “FISA secret law” explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo” or the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo. http://www.justice.gov/sites/default/files/olc/opinions/2006/01/31/nsa-white-paper.pdf.

On January 20, 2006, the Robert VIII v DOJ, HHS, and SSA plaintiff filed a Second Circuit Interlocutory Notice of Appeal of the December 9, 2005 Memorandum and Order and the December 14, 2005 Judgment because of its Robert injunction Order. Docket 06-0391-cv. The appellant informed the Second Circuit that the Robert VIII v DOJ, HHS, and SSA appeal was a related appeal to Robert VII v DOJ which was scheduled for oral argument on January 30, 2015.

On January 26, 2006, former-Associate DAG 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 “whistleblower” memo did not become public until March 9, 2006 when the Washington Post published the report of investigative reporters Dan Eggen and Walter Pincus. Ex-Justice Lawyer Rips Case for Spying: White House’s Legal Justifications Called Weak. This “whistleblower memo” was posted at http://balkin.blogspot.com/kris.fisa.pdf.

This is an important “Past is Prologue” Robert VIII v DOJ, HHS, and SSA document because former-Associate DAG Kris would become AG Holder’s AAG of the NSD from March 25, 2009 until his resignation on March 4, 2011. On January 26, 2006, he knew of the Top Secret Article II “FISA secret law” as explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” The commenter notes that his March 4, 2011 resignation was during the process when AG Holder was deciding whether to declassify the entire May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” On March 18, 2011, AG Holder declassified and reclassified that FISA Memo. See § 3 above.

58 On January 30, 2006, the Second Circuit panel of Judges Calabresi, Straub, and Wesley heard the Robert VII v DOJ oral argument. The panel allowed an extended oral argument in order for the appellant to answer all of the panel’s questions. The appellant explained why he needed the “FISC Robert” documents that were being withheld pursuant to OIPR Counsel Baker’s March 1, 2004 ratification of CIA Director Tenet’s CIA FOIA Officer’s use of FOIA Exemption 1 and the “Glomar Response” defense. He needed those documents to survive an AG’s Motion to Dismiss his putative Bivens action re the CIA’s illegal wiretapping of Robert. See § 18 below.

On March 9, 2006, the day the Washington Post published Ex-Justice Lawyer Rips Case for Spying: White House’s Legal Justifications Called Weak, the Second Circuit ordered the Robert VII parties to file letter-Briefs re issues that had not been addressed in the parties’ Briefs:

1. Does 50 U.S.C. § 1806 (f) apply to Robert’s FOIA request to the Office of Intelligence Policy and Review FOIA Coordinator for “all FISA (Foreign Intelligence Surveillance Act) Affidavits that were relied upon the FISA court to authorize wiretaps of the telephones of Charles Robert, Esq., a/k/a Snowflake 5391?

2. If ex parte, in camera review is required, what additional procedures, if any, are necessary to preserve the confidentiality of the information submitted to the District Court, including, but not limited to, the existence of an application of surveillance pursuant to the FISA?

On March 21, 2006, the Robert VIII plaintiff filed a Motion for a Certificate of Appealability of Judge Garaufis’ Robert VIII December 9, 2005 injunction. Petitioner cited to the Second Circuit’s Robert VII v. DOJ March 9, 2006 Order and argued his First Amendment right of access to the courts was directly affected by Judge Garaufis’ injunction Order.

On April 3, 2006, EDNY AUSA Kathleen Mahoney, on behalf of AG Gonzales, filed DOD’s letter-Brief to comply with the Second Circuit’s March 9, 2006 Order. AUSA Mahoney did not inform the Second Circuit that Robert had been CIA Director Casey’s 1980s target for the E.O. 12333 Top Secret “FISA exempt” NSA TSP whereby the NSA had wiretapped the content of Robert’s telephone calls with his clients challenging the HHS “nonacquiescence” policies of HHS General Counsel del Real. She did not inform the Court that Mr. del Real was CIA Director Casey’s CIA domestic agent when he initiated the 1984 “Fraud Against the Government” investigation of Robert seeking Robert’s incarceration. AUSA Mahoney’s FRCP 11 signed letter-Brief is posted at http://www.snowflake5391.net/RobertvDOJbrief.pdf. See § 20 below.

On April 11, 2006, the Second Circuit decided Robert VII v DOJ and affirmed Judge Garaufis’ decision. “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. 10. Emphasis added.

On April 15, 2006, the Robert VIII v DOJ, HHS, and SSA plaintiff filed the April 11, 2006 Robert VII v. DOJ decision in the Robert VIII v. DOJ, HHS, and SSA interlocutory appeal Record. The Robert VIII v DOJ, HHS, and SSA plaintiff informed the Second Circuit of his intent to file within 45 days a Robert VII v DOJ petition for an en banc rehearing.

59 On June 8, 2006, the Second Circuit denied the Robert VIII v. DOJ, HHS, and SSA Motion of a Certificate of Appealability and dismissed the interlocutory appeal. As a result, Judge Garaufis’ December 9, 2005 injunction prohibiting Robert from filing any new FOIA requests continued throughout the Robert VIII v DOJ, HHS, and SSA appeal on the merits.

On June 23, 2006, the Second Circuit granted the Robert VII v. DOJ Motion to file an oversized petition in support of the petition for an en banc hearing. On July 13, 2006, the petitioner filed his petition and argued there should be an en banc hearing of the April 11, 2006 Summary Order because of subsequent Supreme Court Article II decisions.

On August 25, 2006, the Second Circuit denied the Robert VII v. DOJ petition for a rehearing. This decision was rendered without the Second Circuit’s knowing the FISA “secret law” contained in the Top Secret May 6, 2004 OLC FISA Memo that was rendered after 1) OIPR Counsel Baker’s March 1, 2004 decision affirming the CIA’s use of FOIA Exemption I and the “Glomar Response” to withhold the “FISC Robert” documents and 2) the March 10, 2004 infamous confrontation between WH Counsel Gonzales and AG Ashcroft, DAG Comey, and FBI Director Mueller in AG Ashcroft’s hospital room. See § 3 above.

On November 30, 2006, the Robert VII v DOJ appellant filed a petition for a writ of certiorari. http://www.snowflake5391.net/petitionrobertvdoj.pdf. His Point I was:

I. Should the Executive Branch release, pursuant to the Freedom of Information Act (FOIA), the 1980s Affidavits relied upon by the FISC in authorizing electronic surveillance of the petitioner, who vehemently asserts that there was absolutely no evidence that he was a terrorist or an agent of a foreign power despite the DOJ’s national security FOIA defense?

In December, 2006, upon information and belief, AG Gonzales instructed SG Paul Clement not to file a Robert VII v DOJ Brief in opposition to the petition for a writ of certiorari. SG Clement did not file a Brief in opposition to the Petition for a writ of certiorari.

In December, 2006, CIA Director Hayden awarded Counsel for the National Security Division of Intelligence Policy James Baker the George H.W. Bush Award for Excellence in Counterterrorism, the highest CIA award. The Robert II v CIA and DOJ and Robert VIII v DOJ, HHS, and SSA plaintiff notes this December, 2006 fact because Mr. Baker became AG Holder’s 2009-2011 Associate DAG and is now FBI Director Comey’s FBI General Counsel (2014-). He knows what material facts he withheld from Judge Garaufis in his October 1, 2004 “corrected” Robert VII v DOJ Declaration. http://www.snowflake5391.net/baker.pdf. See § 19 below.

On January 16, 2007, the Supreme Court denied the Robert VII v. DOJ petition for a writ of certiorari. On January 19, 2007, AG Gonzales awarded Counsel for the National Security Division of Intelligence Policy Baker the Edmund J. Randolph Award, the highest DOJ award.

On May 9, 2008, Judge Garaufis granted in part AG Mukasey’s Robert VIII v. DOJ, HHS, and SSA Motion for a Summary Judgment. However, he ordered AG Mukasey to conduct a supplemental due diligence search for the “Barrett nonacquiescence policy,” “Christensen nonacquiescence policy,” and “IMC Investigation Final Report” documents. See § 19 below.

60 On March 19, 2009, AG Holder issued FOIA Guidelines that established the presumption of disclosure applied to FOIA requests. http://www. justice.gov/ag/foia-memo-march2009.pdf. AG Holder rescinded AG Ashcroft’s October 12, 2001 FOIA Guidelines.

On September 21, 2009, the Judge Garaufis rendered its Robert VIII v. DOJ, HHS, and SSA Memorandum and Order granting AG Holder’s Motion to dismiss the FOIA action. On November 9, 2009, petitioner filed his Robert VIII v DOJ, HHS, and SSA Notice of Appeal.

On March 10, 2010, the Second Circuit held a Robert VIII v DOJ, HHS, and SSA pre- argument conference. The parties signed a Local Rule 42.1 Stipulation whereby the petitioner withdrew the appeal without prejudice to reinstate the appeal by September 3, 2010. This was in contemplation of plaintiff’s belief that there could be a possible quiet settlement.

On July 27, 2010, the Robert VIII v DOJ, HHS, and SSA plaintiff served his July 27, 2009 316 page WP on EDNY AUSA Mahoney. She was EDNY U.S. Attorney Lynch’s lead counsel not only in Robert v DOJ, HHS, and SSA, but also in Ford v. Shalala, 87 F. Supp. 2d 163 (E.D.N.Y. 1999). In Ford, Judge Sifton had certified an April 9, 1994 nationwide class of millions of SSI recipients whose due process rights had been denied by HHS Secretary Shalala. In his Robert VIII v DOJ, HHS, and SSA WP, the plaintiff laid out the consequences of HHS General Counsel Juan del Real (1981-1985) being CIA Director Casey’s illegal CIA domestic agent when he made his 1982-1985 Jackson “nonacquiescence” policy decisions, and when in 1984 he initiated the joint HHS-DOJ-FBI “Fraud Against the Government” investigation of Robert and used information from the E.O. 12333 NSA TSP seeking Robert’s incarceration. See 7-27-10 Robert VIII WP §§ L-O, Z, AA. http://snowflake5391.net/7_27_10_RobertVIII.pdf

On August 24, 2010, petitioner filed a Robert VIII reinstatement letter because AG Holder had rejected the Robert VIII v DOJ, HHS, an SSA plaintiff’s renewed quiet settlement which was supported by his July 27, 2010 Robert VIII v DOJ, HHS, and SSA WP. AG Holder, AG Reno’s DAG during the 1997-2001 Ford v Shalala litigation, knew that the Robert VII plaintiff had served the July 27, 2010 Robert VIII v DOJ, HHS, and SSA WP on EDNY AUSA Mahoney because her April 3, 2006 FRCP 11 signed Robert VII v DOJ letter-Brief had been filed on behalf of AG Gonzales. AG Holder knew her April 3, 2006 letter Brief was in response to the Second Circuit’s March 9, 2006 Order with its teed up questions as to whether the Robert VII v DOJ plaintiff was a FISA “aggrieved person.” See § 8 above and §§ 19-21 below.

On September 24, 2010, the Second Circuit granted the Robert VIII v DOJ, HHS, and SSA plaintiff’s reinstatement request. The Court provided a Briefing schedule.

On February 23, 2011, petitioner filed his Robert VIII v. DOJ, HHS, and SSA Brief. He sought a remand to provide Judge Garaufis with an opportunity to apply AG Holder’s March 19, 2009 FOIA Guidelines that had not been applied to the Robert VIII, HHS and DOJ litigation. The plaintiff argued that Judge Garaufis should read in camera the “Robert VII v DOJ “FISC Robert” documents as connect-the-dots documents to the FOIA withheld “Robert v Holz” documents and read the “IMC Investigation Final Report” documents. The Robert VIII v DOJ plaintiff believed that if EDNY U.S. Attorney Lynch (1999-2001 and 2010-2015) knew that Judge Garaufis would read the “FISC Robert” documents, then she would persuade AG Holder to accept a quiet settlement. See 7-27-10 Robert VII v DOJ WP §§ A-G and §§ 19-21 below.

61 On March 18, 2011, AG Holder declassified part of the May 6, 2004 OLC FISA Memo. However, AG Holder reclassified certain pages. Upon information and belief, these pages discussed the E.O. 12333 May 24, 1984 Top Secret “OLC Olson FISA Memo.” If so, then this was a connect-the-dots document to Robert VIII v DOJ, HHS, and SSA withheld “Robert v Holz” documents withheld pursuant to FOIA Exemption 5 and the Robert VII v DOJ “FISC Robert” documents withheld pursuant to FOIA Exemption 1 and the “Glomar Response” defense. EDNY U. S. Attorney Lynch could read the “Robert v Holz” documents and AG Holder could read the Robert VII v DOJ classified documents that were in AG Holder’s custody in his Top Secret classified archives. See 7-27-10 Robert VIII WP §§ M, N, AA, AAA.

On March 21, 2011, the Second Circuit decided Amnesty v. Clapper 638 F. 3d 118 (2d Cir. 2011). The Court established a FISA standing standard that would apply to the Robert v Holz-Robert VII v DOJ-Robert VIII v DOJ, HHS, and SSA plaintiff if he filed a Bivens action as a FISA “aggrieved person” claiming a violation of his First Amendment right of access to the courts and his Fourth Amendment rights. See 7-27-10 Robert VIII WP § AAA.

On April 11, 2011, the Robert VIII v DOJ, HHS, and SSA plaintiff filed an OLC Mandatory Declassification Review (MDR) request to declassify the reclassified pages of the May 6, 2004 OLC FISA Memo pursuant to President Obama's December 29, 2009 E.O. 13526 § 3.3; He filed a supporting WP. http://snowflake5391.net/4_11_11_OLC_MDR_WP.pdf. The Robert VIII plaintiff’s request for MDR of this “smoking gun” OLC document was denied.

On May 9, 2011, the Robert VIII v DOJ, HHS, and SSA-Robert II v CIA and DOJ filed a CIA Mandatory Declassification Review (MDR) for the four Robert II v CIA and DOJ “North Notebook” documents and the #5 “All Robert II v CIA“c (3) exclusion” ex parte Declarations” that were filed with Judge Seybert that were never served upon the Robert II v CIA and DOJ plaintiff. The Robert II v CIA and DOJ plaintiff mail served CIA General Counsel Preston with a copy of this WP. http://snowflake5391.net/5_9_11_MDR_CIA.pdf. Needless to say, the Robert II v CIA and DOJ plaintiff’s request for CIA MDR review was denied.

On May 12, 2011, AG Holder filed his Second Circuit Amnesty v. Clapper petition for a rehearing en banc. AG Holder filed this petition after making the March 18, 2011 decision to reclassify the May 6, 2004 OLC FISA Memo pages that explained the “FISA secret law.” This is an important mens rea fact if AAG the NSD Kris had resigned on March 4, 2011 on principle because he knew that the reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” explained the Article II “FISA secret law” that the exclusivity provision of the FISA was an “unconstitutional” encroachment of the President’s Article II Commander in Chief authority.

On May 12, 2011, AG Holder’s Associate DAG Baker knew whether the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” cited to the May 24, 1984 Top Secret “OLC Olson FISA Memo. If so, then this is an important mens rea fact. The PCLOB should know whether FBI General Counsel Baker (2014-) knew as Associate DAG Baker (2009-2011), that the “OLC Olson FISA Memo” had been the basis for CIA Director Casey’s CIA domestic agent HHS General Counsel del Real’s targeting Robert for E.O. 12333 Top Secret “FISA exempt” NSA TSP surveillance to secure the content of Robert’s conversations with his SSI clients for use in the Robert “Fraud Against the Government” investigation. See October 1, 2004 Robert VII v DOJ Baker “corrected” Declaration ¶¶ 11-13. http://www.snowflake5391.net/baker.pdf.

62 On May 26, 2011, EDNY AUSA Mahoney filed on behalf of AG Holder and EDNY U.S. Attorney Lynch, the DOJ’s Robert VIII v DOJ, HHS, and SSA Second Circuit Brief. She defended all of the government’s representations made to the District Court in Robert IV, Robert V, Robert VI, Robert VII, and Robert VIII. She filed this Brief knowing that Associate DAG Baker knew the contents of the CIA classified March 1, 2004 Robert VII “FISC Robert” documents that revealed whether Robert was CIA Director Casey’s target for the E.O.12333 NSA TSP warrantless surveillance in violation of the exclusivity provision of the FISA.

On June 1, 2011, petitioner filed his Robert VIII v DOJ, HHS, and SSA Reply Brief. His POINT III explained the significance of AG Holder’s March 18, 2011 decision to declassify and reclassify the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” He requested that the Second Circuit take Judicial Notice of the March 18, 2011 declassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” He argued that there should be a remand in order that Judge Garaufis could read the reclassified May 6, 2004 OLC FISA Memo in camera in order to determine whether the plaintiff’s almost incredible allegations in Robert VII v DOJ were true.

On July 25, 2011, the Robert VIII v DOJ, HHS, and SSA plaintiff mail served Robert II v CIA and DOJ CIA General Counsel Stephen Preston with an individual White Paper placing him on Notice of the importance of CIA General Counsel providing accurate facts to the CIA Agency Release Panel re the legal significance the any ex parte Declarations filed with Judge Seybert that contained misrepresentations of fact and law. The purpose of this WP was to put a full court press on CIA General Counsel Preston in order that he would recommend that Acting CIA Director Michael Morrell, his client, consider plaintiff’s Robert II v CIA and DOJ quiet settlement offer. CIA General Counsel Preston knew that if the March 18, 2011 reclassified May 6, 2004 “Top Secret” “OLC Goldsmith FISA Memo” cited to the May 24, 1984 Top Secret “OLC Olson FISA Memo,” then a Robert II v CIA and DOJ quiet settlement would lead to a Robert VIII v DOJ, HHS, and SSA quiet settlement. See 7-25-11 CIA Preston WP §§ I-L, Q-W. .http://snowflake5391.net/7_25_11_WPCIAGenCouPreston.pdf

On September 6, 2011, the Second Circuit rendered its Robert VIII v DOJ, HHS, and SSA decision without any oral argument. The Second Circuit panel of Judges Ralph Winter, Joseph Mc Laughlin and Jose Cabranes, affirmed Judge Garaufis’ decision to dismiss the FOIA action. However, the Second Circuit did modify Judge Garaufis’ December 9, 2005 injunction to require that Robert secure Judge Garaufis’ pre-clearance Order to file a FOIA action, but not to require Judge Garaufis’ pre-clearance Order to file a FOIA request.

The commenter informs the PCLOB that Second Circuit Judge Winter had been appointed by Chief Justice Roberts to be a FISC of Review Judge from November 14, 2003-to May 18, 2010. On August 19, 2013, Chief Justice Roberts appointed Second Circuit Judge Jose A. Cabranes to be a FISC of Review with a term that ends in 2020.

On September 13, 2011, the plaintiff filed a series of FOIA requests with various Executive Branch agencies seeking a mosaic of documents to prove his theory that the 1982- 2011 AGs and FBI Directors knew that the 1982-2011 CIA Directors were conducting back door warrantless domestic searches of the 1982-2011 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. All of these FOIA requests are now ripe for filing a new FOIA action subject to Judge Garaufis’ pre-clearance Order.

63 On October 25, 2011, the Robert VIII v DOJ, HHS, and SSA plaintiff filed a 74 page White Paper with AAG of the OLC Virginia Seitz. This was in support of a letter requesting that she 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 request for other OLC documents. AAG of the OLC Seitz denied the request. http://snowflake5391.net/10_25%20_11_WPSeitz.pdf.

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 Robert VIII v DOJ, HHS, and SSA Petition’s first two Points were:

I. Did the Court below err by not ordering a remand for the District Court to review in camera petitioner’s FOIA requested documents withheld pursuant to FOIA Exemption 5?

II. Did the Court below violate petitioner’s First Amendment right of access to the courts by enjoining plaintiff from filing any new FOIA complaints without the Judge’s pre-clearance order, without holding an evidentiary hearing?

SG Donald Verrelli did not file a Brief in opposition to the Robert VIII v DOJ, HHS, and SSA Petition for a writ of certiorari. Upon information and belief, AG Holder instructed that he not file a Brief for the same reason that AG Gonzales had instructed SG Clement not to file a Robert VII v DOJ Brief in opposition to that petition for a writ of certiorari.

On February 21, 2012, the Supreme Court denied the Robert VIII v. DOJ, HHS, and SSA Petition for a writ of certiorari. “The petition for a writ is denied. Justice Sotomayor took no part in the consideration or decision of this petition.” The commenter notes that Justice Sotomayor had been on the panel in Robert v National Archives, 1 Fed. Appx. 85 (2d Cir. 2001), regarding the release of the “FBI Agent Allison” documents. This was when Robert I v CIA was pending.

The commenter has provided the intertwined history of Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA in order that the PCLOB knows that the commenter has expended a decade of time seeking a Robert VIII v DOJ, HHS, and SSA quiet settlement. If there is no Robert II v CIA and DOJ quiet settlement, then the commenter will file a Robert VIII v DOJ, HHS, and SSA Motion seeking Judge Garaufis’ pre-clearance order for the plaintiff to file a new FOIA complaint that will seek a mosaic of documents that prove that 1985-2015 AGs had implemented a de facto “Marbury v Madison “nonacquiescence” policy. The AGs withheld from the Article III Judges facts re the Article II “FISA secret law.” This enabled the AGs’ AAGs of the OLC to determine what the law “is” rather than the Article III Judges. See § 15 below.

However, the commenter believes that AG Lynch will not withhold from Judge Seybert in Robert II v CIA and DOJ and from Judge Garaufis in Robert VIII v DOJ, HHS, and SSA, the elephant-in-the-room E.O. 12333 fact that the 1982-2015 CIA Directors have conducted 1982- 2015 E.O. 12333 back door warrantless domestic searches of U.S. citizens’ comingled content data. If the commenter is correct, then co-defendant AG Lynch will accept the Robert II v CIA and DOJ plaintiff’s quiet settlement offer and thereby moot Robert VIII v DOJ, HHS, and SSA.

64 15. The 1984-2015 AGs’ Marbury v Madison “nonacquiescence” policy

The commenter submits that the PCLOB will learn from reading the May 24, 1984 Top Secret “OLC Olson FISA Memo,” of the existence of a de facto Marbury v Madison, 5 U.S. 1 (Cranch) 137 (1803), “nonacquiescence” policy. “It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is.” Emphasis added. From 1984- 2015 the AGs did not inform the Article III Judges of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP so that the Article II AAGs of the OLC, not the Article III Judges including the Supreme Court, would decide what the Article I law “is.” See §§ 16-24 below.

The 1803 Marbury v Madison separation of powers holding established the hornbook legal principle that Article III Judges decide what the Article I law is and not the President’s Article II AG. The Article III Judiciary determines “what the law is:”

It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.” Id. 177. Emphasis added.

AG Lynch now has Top Security clearance to read AAG of the OLC Olson’s May 24, 1984 OLC FISA Memo sent to AG Smith. “Re Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1979.” AG Lynch will learn whether Article II AAG of the OLC Olson made the decision that the decision the Article I exclusivity provision of the FISA of 1978 was an “unconstitutional” encroachment on the President’s Article II Commander in Chief inherent authority to conduct warrantless domestic surveillance of U.S. citizens’ comingled stored content data to protect the nation from its enemies. If so, then she will know that AGs William French Smith (1981-1985), Edwin Meese (1985-1988), Richard Thornburgh (1988-1991), William Barr (1991-1993), Janet Reno (1993-2001), John Ashcroft (2001-2005), Alberto Gonzales (2005- 2007), Acting AG Peter Keisler (2007), Michael Mukasey (2007-2008), and Eric Holder (2009- 15) have all implemented this de facto Marbury v Madison “nonacquiescence” policy.

AG Lynch will also learn whether all of her predecessor AGs had adopted as their own, AG Olson’s May 24, 1984 analysis that the Fourth Amendment did not apply to “constitutionally seized” content data. “Traditional Fourth Amendment analysis holds that once evidence is constitutionally seized, its dissemination or subsequent use raises no additional Fourth Amendment question.” Id. Emphasis added. AG Lynch now has to decide whether the Article III Supreme Court’s June 25, 2014 unanimous Riley v California decision that the Fourth Amendment applies to a U.S. citizen’s cell phone’s stored content data, has “overruled” the Article II 1984-2014 Top Secret “FISA secret law” that is explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo. If so, then she will rescind this 1984 OLC FISA Memo.

AG Lynch will learn that AG Smith did not want any Article III Court, including the FISC and the Supreme Court, to know the elephant-in-the-room E.O. 12333 fact that CIA Director Casey was conducting E.O. 12333 back door warrantless domestic searches of U.S. citizens’ comingled stored content data. As a result, AG Smith classified the May 24, 1984 “OLC Olson FISA Memo” so that no Article III Judge would learn the Article II “FISA secret law.”

65 The commenter respectfully suggests that the PCLOB take a step back and answer the logical question of any citizen who is not an attorney: How can the Supreme Court decide what the law “is” if the AG does not inform the Supreme Court of the “FISA secret law” when the AG had already determined that the exclusivity provision of the FISA is an “unconstitutional” encroachment on the President’s Article II Commander in Chief authority? See § 22 below.

The commenter respectfully submits that the PCLOB will learn that the plaintiff’s almost incredible assertion is true: the 1982-2015 AGs have all implemented a de facto Marbury v Madison “nonacquiescence” policy. If so, then all of the 1982-2015 AGs have upset the delicate Separation of Powers balance that is grounded on the Marbury v Madison hornbook law principle that Article III Judges, not Article II AGs, determine what the law “is.”

The PCLOB will be able to determine for itself if a 2015 de facto Marbury v Madison “nonacquiescence” policy exists by the PCLOB asking AG Lynch to provide a copy of the Top Secret May 24, 1984 “OLC Olson FISA Memo” along with her own analysis as to whether an Article II “FISA secret law” exists that has been a “known-known” fact to each of her 1984-2015 AG predecessors. If she provides a copy of the May 24, 1984 Top Secret “OLC Olson FISA Memo,” then the PCLOB will know why AG Holder did not inform the Second Circuit and the Supreme Court in Clapper v Amnesty of the existence of the Article II “FISA secret law” that was explained the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” See § 22 below.

The commenter respectfully submits that if the PCLOB acknowledges the fact that the AGs directly affected the ability of 1984-2015 Article III Judge to determine what the Article I “law” is as to the Fourth Amendment applying to 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data, then they would agree with former ISSO Director Leonard’s April 30, 2008 statement to the Senate Judiciary Committee. “It is as if Lewis Carroll, George Orwell, and Franz Kafka jointly conspired to come up with the ultimate recipe for unchecked executive power. “ Id. 8. See § 9 above.

PCLOB Members Rachel Brand and Elisebeth Collins as former-AAGs of the OLP, learned of the de facto “Marbury v Madison issue from reading the January 26, 2006 “whistleblower” memo of then-former-Associate DAG David Kris (2000-2003) re his legal opinion that the implementation of the NSA TSP was a violation of the exclusivity provision of the FISA. http://balkin.blogspot.com/kris.fisa.pdf. They can provide valuable insights for Chairman David Medina and Members Patricia Wald and James Dempsey as to the reasoning of AGs Ashcroft (2001-2005), Gonzales (2005-2007), Keisler (2007), and Mukasey (2007-2008) to not inform the FISC Judges of the Article II “FISA secret law” that is explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the May 24, 2004 Top Secret “OLC Goldsmith FISA Memo” that they had reviewed as the AAGs of the OLP.

The PCLOB now has an extraordinary opportunity to address the de facto Marbury v Madison “nonacquiescence” policy issue in its 2015 EO 12333 Report to President Obama. The June 25, 2014 Riley v California decision and the June 2, 2015 enactment of the USA Freedom Act, provide excellent teaching tools to illustrate how the delicate separation of powers balance is maintained. The PCLOB could make a recommendation that there be Article I legislation that prevents the Article II use of a secret de facto Marbury v Madison “nonacquiescence” policy.

66 16. The June 25, 1984 Chevron v. Natural Resources “nonacquiescence” policy as evidenced by the “FISA secret law” based on the May 24, 1984 Top Secret “OLC Olson FISA Memo” that the exclusivity provision of the FISA is “unconstitutional”

The commenter submits that the PCLOB will learn from reading the May 24, 1984 Top Secret “OLC Olson FISA Memo,” of the existence of a Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 104 S.Ct. 2778 (1984), “nonacquiescence” policy. "If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress." Id. 2781. The 1984-2015 AGs knew the June 25, 1984 Chevron decision governed the May 24,1984 “OLC Olson FISA Memo.” They classified the document to hide this fact. The PCLOB can decide whether the FISA exclusivity provision is the “unambiguously expressed intent of Congress.” See § 23 below.

The June 25, 1984 Chevron standard for interpreting a statute was simple and clear:

When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. Id. 2781-2782.

AAG of the OLC Olson knew that the June 25, 1984 Chevron decision placed at risk the continued viability of his Top Secret May 24, 1984 FISA Opinion that he had sent to AG Smith. “Re Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1979.” AAG of the OLC Olson knew that if an Article III Judge applied the Chevron holding to the exclusivity provision of the FISA of 1978, then the Article III Judge reviewing his May 24, 1984 OLC Memo would first determine whether the exclusivity provision of the FISA was an unambiguous statute. If the Article III Judge decided that the exclusivity provision of the FISA was an unambiguous statute, then the Article III Judge would not defer to his May 24, 1984 OLC FISA opinion.

AG Smith knew that United States v Duggan was pending in the Second Circuit. Chief Judge Feinberg and Circuit Judges Mansfield and Kearse were being asked to decide whether District Judge Sifton’s decision was correct when he decided that the FISA as applied, did not violate the Fourth Amendment. AG Smith had not informed Judge Sifton and the Second Circuit panel of the elephant-in-the-room fact that CIA Director Casey was conducting back door warrantless searches of the of the E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. AG Smith did not inform the Second Circuit panel that AAG of the OLC Olson had determined the exclusivity provision of the FISA was an “unconstitutional” encroachment on the President’s authority. See § 2 above and § 17 below.

67 The commenter asserts that AG Smith’s decision not to inform the Second Circuit of the May 24, 1984 Top Secret “OLC Olson FISA Memo” was the Marbury v Madision “nonacquiescence” policy being implemented as a 1984 Chevron v National Resources “nonacquiescence” policy. He asserts that AG Smith had an affirmative duty to inform the Second Circuit prior to its rendering it U.S. v Duggan decision, of the Top Secret Article II “FISA secret law” that was explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo. The commenter asserts that it is not unduly speculative to believe that if the Second Circuit knew about the May 24, 1984 Top Secret “OLC Olson FISA Memo” and then applied the Chevron v National Resources standard, then the Second Circuit may have concluded that the exclusivity provision of the FISA was an unambiguous statute and reached a different U.S. v Duggan result.

This raises the disturbing issue of whether a 1984-2015 Chevron “nonacquiescence” policy had been the basis for the 1984-2015 AGs not informing the 1984-2015 FISC of:

1. the elephant-in-the-room fact that the 1982-2015 CIA Directors have been conducting back door warrantless searches of the of the E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens comingled stored content data without the knowledge of Congress, and

2. the existence of the Top Secret Article II “FISA secret law” that is explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo” that determined that the exclusivity provision of the FISA of 1978 was an “unconstitutional” encroachment on the President’s Article II authority.

The commenter notes the important “Past is Prologue” fact that Justice Antonin Scalia (1986-) had been the 1974-1977 AAG of the OLC. He would became a fierce defender of the Chevron Doctrine. This is illustrated in his March 20, 2013, City of Arlington v FCC, 133 S. Ct. 1863 (2013) majority decision that reinvigorated the Chevron Doctrine. That decision was decided after the February 26, 2013, Amnesty v Clapper, 133 S. Ct. 1138 (2013) standing decision. Justice Scalia knew that AG Holder did not inform the Second Circuit and SG Verrelli did not inform the Supreme Court Justices of the Top Secret Article II “FISA secret law’ that the public learned about when on March 18, 2011 AG Holder had declassified and reclassified the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” that discussed the constitutionality of the exclusivity provision of the FISA. This is an important fact because AAG of the NSD Kris had resigned on March 4, 2011. Justice Scalia knew former-Associate DAG Kris’ had submitted his January 26, 2006 “whistleblower” Memo to the Intelligence Committees. “Congress intended to foreclose the President’s constitutional power to conduct foreign intelligence “electronic surveillance” without statutory authorization.” Id. 2. See the “whistleblower memo” posted at http://balkin.blogspot.com/kris.fisa.pdf. See §§ 2, 3 4 above and §§ 20-24 below.

The commenter also notes that Justice Scalia had been President Ford’s 1974-1977 AAG of the OLC when President Ford issued his December 19, 1974 de facto Top Secret E.O document that delegated to AGs William Saxbe (December 17, 1973-January 14, 1975) and Edward Levi (January 14, 1975-January 20, 1977) the authority to order the FBI to conduct warrantless domestic surveillance. This document was declassified on July 22, 1998 and provides a 20/20 hindsight view of the FBI warrantless domestic surveillance program. See 10-3-13 Robert Review Group Comments F. http://snowflake5391.net/review_group_comments.pdf

68 The December 19, 1974 Memorandum for the Attorney General that had been approved by President Ford’s WH Counsel Philip Buchen (1974-1977), stated:

I have carefully reviewed the issues raised in your request for confirmation of authority and delegation with respect to warrantless electronic surveillance within the United States for foreign intelligence (including counterintelligence) purposes. I am satisfied that programs requiring such surveillance are important to the national security, and therefore reaffirm and renew the delegation power to you, and to your successors in office, and the authorization of you and them, to approve, without prior judicial warrant, specific electronic surveillance within the United States which may be requested by the Director of the Federal Bureau of Investigation. Id. Emphasis added http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB178/surv05.pdf.

President Ford’s December 19, 1974 Memorandum for the Attorney General and Justice Scalia’s March 20, 2013 City of Arlington decision citing to the Chevron Doctrine, provide the PCLOB with an historical pathway to inform the public of the importance of the Chevron Doctrine being applied to May 24, 1984 Top Secret “OLC Olson FISA Memo.” The public will learn of the 1974 CIA and FBI counterintelligence programs access to the NSA TSP comingled stored content data. Thus, the PCLOB has a timely teaching moment when discussing the reasons why the Congress included the exclusivity provision of the FISA of 1978. The PCLOB can hammer home the point that Congress included the exclusivity provision of the FISA of 1978 because of the findings of the 1976 Church Committee re illegal CIA domestic activities.

The commenter respectfully submits that the PCLOB will not be able to find any present or former USG attorney who would agree to file a written memo that would apply the Chevron doctrine to AG Holder’s September 5, 2014 re-reclassified March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Olson FISA Memo.” Whereas President Ford’s December 19, 1974 Memorandum for the Attorney General was based on the ambiguity of the Title III of the Omnibus Crime Control and Safe Streets Act of 1968, there is no ambiguity as to the intent of Congress when it enacted the exclusivity provision of the FISA of 1978. Therefore, if the PCLOB applies the Chevron doctrine retroactively to the May 24, 1984 Top Secret “OLC Olson FISA Memo,” then the PCLOB will have a concrete example of why President Obama has a § 413 (b) of the National Security Act “shall” duty to file a “corrective action” plan to remedy the 1982-2015 serial violations of the exclusivity provision of the FISA. See § 13 above.

The commenter submits that the 1984 Chevron v National Resources standard was easy to apply in 1984 and continues to be easy to apply thirty one years later in 2015 as the Chevron Doctrine. The Chevron Doctrine is a time tested Doctrine to maintain the delicate balance of the Constitution’s Separation of Powers. If the Article I Congress enacts an unambiguous statute, then the Article III Court rejects the Article II interpretation. If the Article I Congress enacts an ambiguous statute, then the Article III Court defers to the Article II interpretation. However, if the Congress decides that the Article II interpretation of an ambiguous statute is an incorrect “executive action,” then Congress can amend the ambiguous statute and make it unambiguous so that Article III Judges will reject Article II interpretations. This application of the Chevron Doctrine resulted in Congress enacting the USA Freedom Act. See § 24 below.

69 17. The August 8, 1984 Second Circuit U.S. v Duggan decision was made with AG Smith intentionally not informing EDNY U.S. Attorney Dearie of the existence of the “FISA secret law” that is explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo”

EDNY U.S. Attorney Dearie knew the Supreme Court had on June 25, 1984 decided Chevron v National Resources. He knew that the exclusivity provision of the FISA was an unambiguous statue. However, he did not know the following facts:

1. the elephant-in-the-room fact that the CIA Director Casey was conducting back door warrantless searches of the E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens comingled stored content data without the knowledge of Congress or the FISC, and

2. the existence of the Top Secret Article II “FISA secret law” fact that is explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo” that determined that the exclusivity provision of the FISA of 1978 was an “unconstitutional” encroachment on the President’s Article II authority.

In Duggan, EDNY U.S. Attorney Dearie did not inform EDNY District Judge Charles Sifton of the “FISA secret law” because AG Smith did not inform EDNY U.S. Attorney Dearie that AG Smith authorized CIA Director Casey to conduct the E.O. 12333 Top Secret “FISA exempt” NSA TSP. EDNY U.S. Attorney Dearie did not inform the Second Circuit panel of Chief Judge Wilfred Feinberg and Circuit Judges Walter Mansfield, and Amalya Kearse of this Top Secret “FISA secret law” explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo, because AG Smith did not inform U.S. Attorney Dearie of its existence. As a result, the Second Circuit panel did not know when they were deciding Duggan, the elephant-in-the-room fact that CIA Director Casey was conducting back door warrantless searches of the E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens comingled stored content data based on the May 24, 1984 Top Secret “OLC Olson FISA Memo.” See §§ 18-24 below.

The PCLOB should considering analyzing the Second Circuit’s August 8, 1984 Duggan decision after applying June 25, 1984 Chevron v Natural Resources holding to the May 24, 1984 Top Secret “OLC Olson FISA Memo.” PCLOB Member former D.C. Circuit Court Judge Wald may decide to posit whether the Duggan decision may have had a different result.

70 The commenter respectfully submits that PCLOB Members Brand and Collins, who have read the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” should apply the Chevron Doctrine with 20/20 hindsight retroactively to the May 24, 1984 OLC FISA Memo “Re Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1979.” They may disagree with AAG of the OLC Olson’s determination on the Fourth Amendment issue:

Traditional Fourth Amendment analysis holds that once evidence is constitutionally seized, its dissemination or subsequent use raises no additional Fourth Amendment question.” Id. Emphasis added.

Upon information and belief, on August 8, 1984 when U.S. v Duggan was decided, AG Smith’s DAG Edward Schmultz (1981-1984), Associate AG D. Lowell Jensen (1983-1985), and AAG of the Civil Division Paul Mc Grath (1981-1985), all knew that the Article II “FISA secret law” was based on the May 24, 1984 Top Secret “OLC Olson FISA Memo.” They knew that AG Smith did not inform the FISC or Judge Sifton or the Second Circuit panel or the FISC that CIA Director Casey was conducting back door 1982-1984 E.O. 12333 Top Secret “FISA exempt” warrantless searches of U.S. citizens’ comingled content data, in order to protect the CIA domestic sources methods being used to protect the nation from enemies of the state.

Those DOJ attorneys knew that EDNY U.S. Attorney Raymond Dearie and EDNY AUSA Carol Amon did not know of the existence of the May 24, 1984 Top Secret “OLC Olson FISA Memo” because they did not have Top Secret clearance to know this fact. This is an important “Past is Prologue” fact because 1984 EDNY AUSA Carol Amon was the lead EDNY AUSA in U.S. v Duggan and would become the 2011 Chief EDNY District Chief Judge who succeeded 2007-2011 EDNY Chief Judge Dearie when he assumed senior status.

EDNY U.S. Attorney Dearie (1982-1986) also did not know that HHS General Counsel del Real had made Robert the target of the E.O. 12333 Top Secret NSA TSP during the “Fraud Against the Government” investigation of Robert for the “law enforcement” purpose of securing Robert’s incarceration. AAG of the Civil Division Richard Willard (1985-1987) did not inform EDNY U.S. Attorney Dearie during the 1985-1986 Robert v Holz FOIA litigation, that Robert was the target of CIA Director Casey’s back door warrantless wiretaps of Robert’s telephone conversations with his aged, blind, and disabled clients challenging the “nonacquiescence” policy of HHS General Counsel del Real. EDNY U.S. Attorney Dearie did not have Top Secret classification clearance to know that HHS General Counsel del Real was CIA Director Casey’s illegal CIA domestic agent when in 1984 he initiated the “Fraud Against the Government” investigation of the Ruppert v Schweiker lead counsel to secure Robert’s incarceration and disbarment in order to protect CIA domestic sources and methods. See § 14 above.

On July 2, 2012, Chief Justice John Roberts appointed Judge Dearie a FISC Judge for a seven year term. Upon information and belief, FISC Judge Dearie does not know of the May 24, 1984 Top Secret “OLC Olson FISA Memo” or the September 5, 2014 re-reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” or the July, 2014 Top Secret “OLC Riley v California FISA Memo.” Hence, the importance of the PCLOB determining whether an EDNY U.S. Attorney stovepipe bypassed EDNY U.S. Attorney Dearie during U.S. v Duggan so that in 1984 he would not know of the E.O. 12333 Top Secret “FISA exempt” NSA TSP.

71 The existence of a 1982-1986 EDNY U.S. Attorney stovepipe that bypassed EDNY U.S. Attorney Dearie (1982-1986) in order that he would not know of the existence of the 1982 E.O. 12333 Top Secret “FISA exempt” NSA TSP, raises the issue of whether this EDNY U.S. Attorney stovepipe has been used by the 1986-2015 AGs to bypass all of the 1986-2015 EDNY U.S. Attorneys. If so, then this was to prevent the 1986-2015 EDNY U.S. Attorneys from knowing that the 1986-2015 AGs and FBI Directors knew that the 1986-2015 CIA Directors continued to conduct back door warrantless domestic surveillance of the 1982-2015 E.O. 12333 Top Secret FISA exempt NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. If so, then this is a timely issue because AG Lynch, the 1999-2001 and 2010-2015 EDNY U.S. Attorney, will learn whether the EDNY U.S. Attorney stovepipe that had bypassed her, is now bypassing her successor Acting EDNY Kelly T. Currie without AG Lynch’s knowledge.

If the 1984 EDNY U.S. Attorney stovepipe that had bypassed U.S. Attorney Dearie prior to the Second Circuit rendering its August 8, 1984 U.S. v Duggan decision, continued to bypass the EDNY U..S. Attorneys during the 1985-2015 NSA TSP litigation that was decided by the Second Circuit, then this raises the disturbing issue of whether the 1984-2015 AGs were making the 1984-2015 Second Circuit panels the “handmaidens” of the 1984-2015 AGs. If so, then the USA Freedom Act provides AG Lynch with an opportunity to review for accuracy the facts presented by the EDNY U.S. Attorneys to the Second Circuit in cases involving the NSA TSP. AG Lynch will learn whether the 1985-2015 AGs used the EDNY U.S. Attorney stovepipe to make sure that the 1985-2015 EDNY U.S. Attorneys did not know as a “known-known” fact that the 1982-2015 CIA Directors conducted warrantless domestic searches of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” U.S. citizens’ comingled stored content data.

On December 15, 2008, in Doe, et. al. v Mukasey, Mueller, and Caproni, 549 F 3d 861 (2d Cir. 2008), the Second Circuit revisited the U.S. v Barrett issue of USG attorneys withholding material facts from Article III Judges in order to protect intelligence community “sources and methods.” The Second Circuit affirmed with modifications the District Court injunction to prevent government officials from violating the First Amendment by use of prior restraint FBI “gag” Notices re FBI issuance of National Security Letters (NSLs), and the government’s argument that there should be Article III deference to Article II national security decisions. However, the Second Circuit left an Article III bright line maker that the USG should not exploit the Second Circuit’s deference to the Article II AGs on national security issues so that the Article III Judges become the “handmaiden of Executive” Branch attorneys:

There is not meaningful judicial review of the decision of the Executive Branch to prohibit speech if the position of the Executive Branch that speech would be harmful is “conclusive” on a reviewing court, absent only a demonstration of bad faith. To accept deference to that extraordinary degree would be to reduce strict scrutiny to no scrutiny, save only the rarest of situations where bad faith could be shown. Under either traditional strict scrutiny or a less exacting application of that standard, some demonstration from the Executive Branch of the need for secrecy is required in order to conform the nondisclosure requirement to First Amendment standards. The fiat of a government official, though senior in rank and doubtless honorable in the execution of official duties, cannot displace the judicial obligation to enforce constitutional requirements. “Under no circumstances should the

72 Judiciary become the handmaiden of the Executive.” United States v Smith, 899 F. 2d 564, 569, (6th Cir. 1990). Id. 882-883 Emphasis added.

The commenter asserts that the PCLOB should consider applying this Doe, et. al. v Mukasey, Mueller, and Caproni, “handmaiden” standard retroactively to litigation strategy of AG Smith in U.S. v Duggan. If AG Lynch reviews the “main justice” case file notes and e-mails in U.S. v Duggan, then AG Lynch will learn how AG Smith had used the EDNY U.S. Attorney stovepipe to make the Second Circuit panel of Chief Judge Feinberg and Circuit Judges Mansfield, and Kearse Judges the “handmaiden” of AG Smith. AG Lynch will learn who made the decision to not inform EDNY U.S Attorney Dearie of the fact that CIA Director Casey was conducting back door warrantless domestic searches of the 1982-1984 E.O. 12333 Top Secret FISA exempt NSA TSP “haystacks” of U.S. citizens’ comingled stored content data, and the existence of the “FISA secret law” as explained in the May 24, 1984 OLC FISA Memo.

If AG Lynch determines that AG Smith had made the United State v Duggan Second Circuit panel the “handmaiden of the Executive” by not informing the panel of the “FISA secret law” explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo,” then AG Lynch will know whether this EDNY U.S. Attorney stovepipe bypassed EDNY U.S Attorneys Roslynn Mauskopf (2002-2007), Benton Campbell (2007-2010), and Loretta Lynch (2010-2015 ), during the 2004-2012 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). If so, then AG Lynch will know that AGs John Ashcroft (2001-2005), Alberto Gonzales (2005-2007), Acting AG Peter Keisler (2007), Michael Mukasey (2007-2008), and Eric Holder (2009-2015) had made the Second Circuit the “handmaiden of the Executive” as had AG Smith in U.S. v Duggan. See §§ 18-24 below.

If AG Lynch determines that the 2004-2012 AGs in Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA had made the Second Circuit the “handmaiden of the Executive” by not informing the Second Circuit panels of the Top Secret “FISA secret law” that is explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” then this raises the issue of whether AG Holder had made the Second Circuit Judges the “handmaiden of the Executive” in Amnesty v. McConnell, 646 F. Supp.2d 633 (SDNY 2009), rev’d, Amnesty v Clapper, 638 F. 3d 118 (2d Cir. 2011), rehearing en banc den., 667 F. 3d 163 (2d Cir. 2011). If so, then AG Lynch has a duty to determine whether AG Holder and SG Verrelli made the Supreme Court Justices the “handmaiden of the Executive” in Amnesty v Clapper, 133 S. Ct. 1138 (2013) by not informing the Justices of the “FISA secret law” that was explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo” and March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” See § 22 below.

The commenter respectfully submits that all 535 Members of Congress and the public should know whether the 1982-2015 AGs have made the Article III Judges, including the FISC and the Supreme Court, the “handmaidens of the Executive” as to the implementation of the 1982-2015 Top Secret “FISA exempt” NSA TSP without any Article I or Article III check and balances. The commenter suggests that a review of AG Smith’s litigation strategy when U.S. v Duggan was being adjudicated by Judge Sifton and the Second Circuit, will generate facts that could be the basis for PCLOB recommendations that would provide checks and balances so that the AGs never again would dare to make Article III Judges the “handmaidens of the Executive.”

73 18. The 1985-2015 Mitchell v Forsyth “nonacquiescence” policy and the 1986-2015 “The Bivens Problem” that continues in 2015 after the USA Patriot Act sunset and enactment of the USA Freedom Act, as evidenced by the fact that the May 24, 1984 Top Secret “OLC Olson FISA Memo” continues to be the 2015 Top Secret Article II “FISA secret law”

The commenter submits that the PCLOB will learn from reading the May 24, 1984 Top Secret “OLC Olson FISA Memo,” of the existence of a 1985-2015 Mitchell v Forsyth, 105 S.Ct. 2806 (1985), “nonacquiescence” policy. On June 19, 1985, the Supreme Court rejected the theory of AGs John Mitchell (1969-1972), William Smith (1981-1985), and Edwin Meese (1985- 1988) that the Fourth Amendment did not apply to the President’s Article II Commander in Chief inherent authority to conduct good faith warrantless surveillance of U.S. citizens to protect the nation from enemies. “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. 2812. That decision led to “The Bivens Problem” as explained in the March 28, 1986 memo from AAG of the Civil Division Richard Willard to DOJ attorneys.

In 1970, AG John Mitchell authorized warrantless wiretaps to gather intelligence regarding the activities of a radical group that had made tentative plans to take actions threatening the nation's security. The US intercepted three conversations between a member of the group and plaintiff. On June 19, 1972, the Supreme Court decided United States v U.S. District Court (Keith), 407 U.S. 297 (1972), and held that the Fourth Amendment does not permit warrantless wiretaps in cases involving domestic threats to the national security. The Mitchell v Forsyth plaintiffs filed a Bivens action against AG Mitchell and others, alleging that the warrantless surveillance violated the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act. The issue presented to the 1985 Supreme Court was whether AG Mitchell had a “good faith” defense to the illegal wiretapping because he believed the warrantless wiretapping was necessary to protect the nation from foreign enemies.

On June 19, 1985, Justice White explained in his Mitchell v Forsyth opinion why 1969- 1972 AG John Mitchell did not have absolute immunity to conduct domestic warrantless surveillance of U.S. citizens. He directly addressed the issue of a damages remedy when the AG of the United States violates the Constitution by conducting illegal wiretapping of U.S. citizens:

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. As the Nation’s chief law enforcement officer, the Attorney General provides vital assistance to the President in his performance of the latter’s constitutional duty to “preserve, protect, and defend the Constitution of the United States.” U.S. Const. Art. II, 1, cl. 8. Mitchell’s argument, in essence, is that the national security functions of the Attorney General are so sensitive, so vital to the protection of our Nation’s well-being, that we cannot tolerate any risk that in performing those functions he will be chilled by the possibility of personal liability for acts that may be found to impinge on the constitutional rights of citizens. Such arguments, “when urged on behalf of the President and the national security in its domestic implications, merit the most careful consideration.” Keith, 407 U.S., at 219. Nonetheless, we do not believe that

74 the considerations that have led us to recognize absolute immunities for other officials dictate the same result in this case. Id. 2812. Emphasis added. After citing to the Keith decision that had been the Supreme Court decision that led to the enactment of the FISA of 1978, Justice White explained why the absolute immunity defense provided judges and prosecutors does not apply to the AG’s secret national security duties: National security tasks, by contrast, are carried out in secret; open conflict and overt winners and losers are rare. Under such circumstances, it is far more likely that actual abuses will go uncovered than that fancied abuses will rise to unfounded and burdensome litigation. Whereas the mere threat of litigation may significantly affect the fearless and independent performance of duty by actors in the judicial process, it is unlikely to have a similar effect on the Attorney General’s performance of his national security tasks. Id. 2813. Emphasis Added. Although the Mitchell v Forsyth 1969-1970 facts had occurred prior to the enactment of the FISA of 1978, the 1985 holding applies to the 1985-2015 AGs who with “good faith” authorized the E.O. 12333 Top Secret “FISA exempt” NSA TSP in order that the CIA Directors could conduct back door ” domestic warrantless surveillance of U.S. citizens’ stored content data. The 1985-2015 AGs knew this was a serial violation of the exclusivity provision of the FISA of 1978. The 1988-2015 AGs knew why after the June 19, 1985 Mitchell decision, AG Meese (1985-1988), did not end the warrantless domestic 1982-1988 E.O. 12333 “FISA exempt” NSA TSP and continued the warrantless surveillance of U.S. citizens. The AGs knew that AG Meese relied upon the May 24, 1984 Top Secret “OLC Olson FISA Memo” that determined that the exclusivity provision of the FISA was an “unconstitutional” encroachment of the President’s Article II Commander in Chief “inherent authority” to conduct warrantless surveillance of U.S. citizens’ “constitutionally seized” stored content data. See §§ 1, 13 above.

The post-Mitchell v Forsyth AGs knew they had “The Bivens Problem” as explained by AAG of the Civil Division Richard Willard in his March 28, 1986 Personal Liability of Federal Officials The Bivens Problem Memo. AAG of the Civil Division Willard sent this Memo to AG Meese’s chain of command attorneys. This included then-DAAG of the OLC Samuel Alito and FBI Director Judge Webster. He advised the attorneys to purchase personal liability policies because there would be no federal government indemnity if they were sued for violating the FISA of 1978. “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 Component. http://www.archives.gov/news/samuel- alito/accession-060-90-220/Acc060-90-220-box12-Correspondence.pdf, 12-3-13 OLC WP §§ C, K, L, T, U, http://snowflake5391.net/12_3_13_FISA_MEMOS.pdf, and §§ 2, 7, 9-13 above.

With 20/20 hindsight and the Snowden leaked November 20, 2007 Memo from AAG of the NSD Wainstein to AG Mukasey, this March 28, 1986 “The Bivens Problem” was an admission that the May 24, 1984 Top Secret “OLC Olson FISA Memo” could not be trusted in the defense of a Bivens action. The fact of the existence of “The Bivens Problem” is now a 2015 “Past is Prologue” fact for all of the 2015 USG attorneys who know that the 1985-2015 Mitchell v Forsyth “nonacquiescence” policy continues to be implemented in June, 2015 without the knowledge of AG Lynch, the Intelligence Committees, and the FISC. See § 2 above.

75 The fact that AAG of the Civil Division Willard sent his March 28, 1985 “The Bivens Problem” memo to then-DAAG of the OLC Samuel Alito also has “Past is Prologue” significance. On June 14, 1984 SG Lee’s Assistant OLC Alito (1981-1985) had informed SG Rex Lee (1981-1985) that he should not file a Mitchell v Forsyth petition for a writ of certiorari. “I do not question that the Attorney General should have this immunity, but for tactical reasons I would not raise the issue here.” Alito at p. 5, June 14, 1984 memo. See National Archives, Files of Roger Clegg, 1984, Accession #060-88-258 Box: 5 Folder:Velde.

On February 26, 2013, Justice Alito in Clapper v Amnesty, 133 S. Ct. 1138 (2013), noted that the USG contended that it could legally conduct “FISA exempt” warrantless surveillance:

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. 1145.

The commenter is asserting that the June 19, 1985 Mitchell v Forsyth decision date is when the Supreme Court placed all USG attorneys on Notice of the AG’s illegal wiretapping. The Supreme Court explicitly rejected AG Meese’s argument that an AG who was acting in “good faith” when conducting warrantless domestic surveillance of a U.S. citizen, should have an absolute immunity defense. All USG attorneys had Notice that any use of a qualified immunity defense would be difficult because the Supreme Court had also implicitly rejected the Article II theory that the President had unlimited Article II Commander in Chief authority to conduct warrantless surveillance of U.S. citizens in order to protect the nation. See 10-3-13 Robert Review Group Comments §§ A, B. http://snowflake5391.net/review_group_comments.pdf.

The commenter also notes that Chief Justice John Roberts was from 1981-1982 a Special Assistant to AG William French Smith. From 1982-1986 he was Associate Counsel to President Reagan under WH Counsel Fred Fielding (1981-1985). Upon information and belief, WH Counsel Fielding knew that AG Smith had approved the implementation of the 1982 E.O. 12333 Top Secret “FISA exempt” NSA TSP. Upon information and belief, 1982-1986 Associate WH Counsel Roberts knew of the May 24, 1984 Top Secret “OCL Olson FISA Memo.”

The commenter is asserting that AAG of the Civil Division Willard’s March 28, 1986 “The Bivens Problem” suggestion that USG attorneys purchase a personal liability policy if they participated in the process of conducting in warrantless domestic surveillance of U.S. citizens, remains prudent advice in 2015 after the enactment of the USA Freedom Act. The “Bivens” problem will not go away when the “constitutionally seized” metadata is no longer stored in USG servers. The 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content will continue to be retained in USG servers because it cannot be separated from foreigners comingled stored content data. See §§ 2, 7-12 above.

The commenter is asserting that as long as the May 24, 1984 Top Secret “OLC Olson FISA Memo” is not rescinded, the USG attorneys who know the E.O. 12333 Top Secret “FISA exempt” NSA TSP is being conducted, have “The Bivens Problem.” Hence, the importance of the PCLOB considering the 2015 Mitchell v Forsyth “nonacquiescence” issue. See § 13 above.

76 19. The August, 1986 Second Circuit Barrett v United States nonacquiescence continues in 2015 because USG attorneys continue to withhold material facts from Judge Seibert in Robert II v CIA and DOJ and from Judge Garaufis in Robert VIII v DOJ, HHS, and SSA

On July 31, 1986, the Second Circuit panel of Judges Mansfield, Kearse and Cardamone decided Barrett v United States and affirmed in part SDNY Chief Judge Motley’s Barrett v United States, 622 F. Supp. 574 (SDNY 1985), decision. The Second Circuit panel explained why the federal attorneys did not have the protection of absolute or qualified immunity when a USG attorney withheld material facts from a Judge to protect national security secrets:

The federal attorneys, on the other hand, were not entitled to absolute immunity because they did not act as counsel in any pending or prospective law suit, the would-be plaintiff being wholly unaware of a potential lawsuit against the United States. Qualified immunity was also denied to federal attorneys because they “should have been aware that they were depriving the plaintiffs of their property right by their alleged actions” in concealing a possible FTCA action by the plaintiff against the United States. Id. 570. Emphasis added.

The Second Circuit discussed the cover up facts notwithstanding the fact that federal attorneys had been tasked with maintaining as a secret of the USG chemical warfare research:

The federal attorneys did not act as counsel for any of the parties in litigation relating to the death of Blauer. On the contrary, their efforts were devoted mainly to avoiding involvement of the federal government or federal officials in such proceeding by keeping the estate ignorant of the role played by the United States Government. Their conduct was not public and was unknown to those affected by it. Cf. (Mitchell v) Forsyth, supra, 105 S. Ct. at 2813). Indeed the open conflict of a court battle, which creates the need for protective immunity to enable the government attorney to perform his duty fearlessly, was totally absent. 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 to liability.” Id. 573. Emphasis added.

The Second Circuit also noted the subordination of perjury by NYS attorneys was a crime as established by the 1953-1955 NYS Penal Law § 273 which was superseded in 1967 by NYS Judiciary Law § 487. This is an important 1986 time line fact because the NYS Judiciary Law §487 establishes a penal standard when attorneys deceive Judges or parties. The Second Circuit noted this was also a civil remedy to be used against “deceitful” attorneys:

77 Moreover, the estate would have a damage remedy against perpetration of these wrongs. New York Penal Law §273 (superseded in 1967 by NYS Judiciary Law §487) authorized an injured person to recover treble damages from an attorney “guilty of any deceit or collusion with intent to deceive the court or any party. The statute has been providing a civil remedy to protect a party against wrongful conduct by a deceitful attorney. Id. 575-576. Emphasis Added.

The Second Circuit explained that if federal attorneys were active participants in a conspiracy to deceive the estate by concealing material information, then they also violated the constitutional rights to file potential civil actions against federal officials:

In our view, proof of the foregoing conduct on the part of the federal- attorney defendants would preclude their resort to qualified immunity as a defense to the present action. Their alleged conduct would amount not only to active participation in a conspiracy to deceive the estate by concealing material evidence in its pending action in the New York Court of Claims, for which they could be held liable under currently effective law, but a violation of the estate’s constitutional rights in a potential action against the Army Chemical Corps and the federal official as participating in the unconsented-to lethal injection of Blauer, which was currently recognized as a property right, which was currently recognized as a property right entitled to protection. Id. 577. Emphasis Added.

The commenter cites to the Second Circuit’s 1986 United States v Barrett decision because 1985-1988 Robert v Holz USG attorneys deceived both Judge Wexler and the plaintiff in order to protect the CIA sources and methods that were used during the “Fraud Against the Government investigation of Robert, a/k/a Snowflake 5391, as per the DOJ denomination. AG Lynch can learn from the DOJ case file notes and e-mails the names of the USG attorneys who intended to deceive both Judge Wexler and the plaintiff, by withholding material facts re HHS General Counsel Juan del Real, as CIA Director Casey’s CIA domestic agent, using information secured from the NSA when he made Robert a 1984 target of the E.O. 12333 Top Secret “FISA exempt” NSA TSP. See the May 24, 2004 Robert VII v DOJ complaint ¶ 4 that was filed with Judge Garaufis re the “FISC Robert” documents withheld pursuant to OIPR Counsel Baker’s March 1, 2004 ratification of the CIA FOIA Officer’s use of FOIA exemption 1 and the “Glomar Response.” This was prior to the March 10, 2004 confrontation between WH Counsel Gonzales and AG Ashcroft, DAG Comey, and FBI Director Mueller, and prior to AAG of the OLC Goldsmith issuing his May 6, 2004 Top Secret OLC FISA Memo that was re-reclassified on September 5, 2014. http://www.snowflake5391.net/rob7vdoj.pdf. See § 3 above.

The 1986-2015 DOJ Barrett “nonacquiescence” policy is premised on the fact that AAG of the OLC attorney Charles Cooper (1985-1988) had determined that NYS Judiciary Law § 487 cannot apply to USG attorneys who with “good faith” deceive Judges to protect CIA domestic sources and methods used to protect the nation. The commenter makes the “Past is Prologue” assertion that just as it was a crime for USG attorneys to deceive Judge Wexler from 1985-1988 in Robert v Holz, it has been a crime for USG attorneys to deceive Judge Seybert in Robert I v DOJ and Robert II v CIA and DOJ from 1999-2015. See §§ 13, 14 above.

78 NYS Judiciary Law § 487 establishes the penal Misconduct by attorneys standard:

An attorney or counselor who:

1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or …

Is guilty of a misdemeanor, and in addition to the punishment prescribed therefore by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action. Emphasis Added.

The commenter asserts that AAG of the Civil Division Richard Willard, the author of the March 28, 1986 “The Bivens Problem,” knew of the DOJ decision to implement the “Barrett “nonacquiescence” policy. Acting Associate AG Stuart Delery can read the DOJ United States v Barrett case file notes and e-mails and inform AG Lynch who made the 1986 DOJ “nonacquiescence” policy that the Second Circuit had “incorrectly” decided that USG attorneys did not have a qualified immunity defense when they deceive Judges and parties in order to protect the Intelligence Community’s sources and methods. See § 18 above.

Acting AAG of the Civil Division Branda can read the Robert DOJ case file notes and e- mails in 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), to determine the names of the USG attorneys who made the litigation decisions to withhold material facts from the Article III Judges in those actions. This resulted in USG attorneys deceiving Judge Garaufis, the Second Circuit, and the Supreme Court. See § 14 above.

The commenter notes that in Robert VIII v DOJ, HHS, and SSA, the plaintiff sought the release of the “Ruppert” documents that included the DOJ September 4, 1985 case file notes re the Ruppert v Heckler conference held in Judge Altimari’s chambers. That conference was re Robert’s complaint to Judge Altimari that the USG was implementing improper litigation tactics by sending USG Special Agents to interrogate ex parte Robert’s aged, blind, and disabled clients in their homes re the legal advice Robert was providing and the legal fees that he was charging. The plaintiff had sought the “Ruppert” documents withheld pursuant to FOIA exemption 5, because he believed the “main Washington” attorney who appeared at the September 4, 1985 conference was AAG of the Civil Division Willard. If so, then AAG Willard had had an ex parte communication with Judge Altimari in Ruppert. See 11-30-11 Robert VIII Petition for a writ of certiorari § D. http://snowflake5391.net/Robert8vDOJpetition1.pdf and §§ 13, 14 above.

If AAG of the Civil Division Willard was the September 4, 1985 “main Washington” attorney who appeared at the Ruppert conference, then he knew whether HHS General Counsel del Real was CIA Director Casey’s agent when he initiated the 1984 “Fraud Against the Government’ investigation of Robert. If so, then he knew that HHS General Counsel del Real was a CIA domestic agent when he made his 1982-1985 Jackson v Schweiker “nonacquiescence” policy decisions. If so, then this is a “Past is Prologue” fact because of the 1999-2015 Ford v Shalala “nonacquiescence” policy. See 7-27-10 Robert VIII WP §§ B-F, P-AAA.

79 The commenter has alleged that the Barrett “nonacquiescence” policy and the Ford v Shalala “nonacquiescence” policy are connected because AG Holder continued to apply HHS General Counsel del Real’s 1982-1985 Jackson v Schweiker “nonacquiescence” decisions to deny millions of Ford v Shalala, 87 F. Supp 2d 163 (E.D.N.Y. 1999), class members SSI benefits during President Obama’s Constitutional watch. On September 29, 1999, Judge Sifton decided Ford v Shalala and certified an April 9, 1994 nationwide class whose due process rights were denied by HHS Secretary Shalala when computing monthly SSI benefits. In 2000, AG Reno’s DAG Holder (1997-2001) made the decision not to perfect the Notice of Appeal filed by EDNY U.S. Attorney Lynch (1999-2001). See 7-27-10 Robert VIII WP §§ R, S.

The commenter has alleged that AAG of the Civil Division Willard knew of the Barrett “nonacquiescence” policy decision because he knew that the Jackson v Schweiker “nonacquiescence” policy funds were an unaudited HHS funding source for the “immaculate construction” of the 1982-1985 E.O. 12333 Top Secret “FISA exempt” NSA TSP servers. AAG Willard knew that the E.O. 12333 NSA TSP “FISA exempt” servers could not be funded with OMB classified funds because of the serial impeachable violations of the § 413 (a) of the National Security Act “shall” Congressional Notification requirement, the exclusivity provision of the FISA of 1978, and the Posse Comitatus Act of 1978 limitations on domestic military law enforcement. Hence, the importance of eliminating the Ruppert attorney who was challenging the Jackson v Schweiker “nonacquiescence” policies of HHS General Counsel del Real. “Oh what a tangled weave, When first we practice to deceive.” Sir Walter Scott.

The commenter notes the 1986-2015 “Past is Prologue” significance of the Barrett “nonacquiescence” policy to millions of SSI recipients who are not 1994-2015 Ford v Shalala class members. They would have rights if AAG Willard knew that HHS General Counsel del Real was CIA Director’s illegal CIA domestic agent when he made his 1982-1985 Jackson “nonacquiescence” policy decisions. On June 2, 1986, Justice Powell in Bowen v City of New York, 106 S. Ct. 2022 (1986), explained the application of the equitable tolling principle to cure the government’s clandestine policy. “The claimants were denied the fair and neutral procedure required by the statute and regulations, and they are now entitled to pursue that procedure.” Id. 2034. Emphasis Added. If HHS General Counsel del Real was a CIA agent when he made his Jackson “nonacquiescence” policy decisions, then those were “clandestine” policies provide an equitable tolling remedy for the 1982-1994 SSI recipients. See 7-27-10 Robert VIII WP §§ P, Q.

The commenter asserts that the 1986 DOJ Barrett “nonacquiescence” policy links the 1982 DOJ decision of AG Smith to withhold the material facts from Judge Sifton in U.S. v Duggan re the 1982 E.O. 12333 To Secret “FISA exempt NSA TSP, to DAG Holder’s 1999 decision to withhold the material fact from Judge Sifton in Ford v Shalala that HHS General Counsel del Real was an E.O. 12333 CIA domestic agent when he made the 1982-1985 Jackson v Schweiker “nonacquiescence” policy decisions that affect millions of Ford v Shalala class members. “Those who fail to learn from history are doomed to repeat it.” George Santayana.

The commenter submits that the PCLOB investigation of E.O. 12333 counterintelligence programs will be incomplete if it does not address the Barrett “nonacquiescence” policy issue. If there is a 2015 DOJ policy that requires DOJ attorneys to withhold material facts from Article III Judges in order to protect E.O. 12333 CIA domestic sources and methods, then this would provide one of the answers to the how-could-this-have-ever-happen questions.

80 20. The 1989 Pavelic & Le Fore v Marvel “nonacquiescence” policy as to USG attorneys having an FRCP 11 individual due diligence accuracy duty rather than hiding behind a FRCP 11 “team effort” due diligence effort without individual accountability

The commenter submits that the PCLOB will learn from reading the May 24, 1984 Top Secret “OLC Olson FISA Memo,” of the existence of a 1989-2015 Pavelic & Le Fore v Marvel Entertainment Group, 110 S. Ct. 456 (1989), “nonacquiescence” policy. USG attorneys have signed pleadings pursuant to FRCP 11 that have not been accurate in order to protect CIA domestic sources and methods. “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. 460. Underline added. This is a timely issue because AG Lynch will be filing FISA petitions in 2015 seeking USA Freedom Act FISC Orders re ending the storage of U.S. citizens’ metadata. AG Lynch will now have to decide whether she has a Pavelic duty to inform the FISC of the fact that CIA Director Brennan continues in 2015 to conduct back door warrantless domestic searches of 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data that is retained in the Utah Data Center servers. See § 13 above.

In Pavelic, Justice Scalia explained that the FRCP 11 “this-is-not-a-team-effort” standard of individual accountability standard was based on the plain reading of FRCP 11:

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. Moreover, psychological effect aside, there will be greater economic deterrence upon the signing attorney, who will know for certain that the district court will impose its sanction entirely upon him, and not divert part of it to a partnership of which he may not (if he is only an associate) be a member, of which (if he is a member) might not choose to seek recompense from him. To be sure, the partnership’s knowledge that it was subject to sanction might induce it increase “internal monitoring”, but one can reasonably believe that more will be achieved by directly increasing the incentive for the individual signer to take care.” Id. at 460. Underline added. Justice Scalia’s 1989 Pavelic “this-is-not-a-team-effort” explanation made clear the individual due diligence duty of the FRCP 11 signing USG attorney to make sure the facts are accurate. The FRCP 11 signing USG attorney cannot rely upon a presumption that another USG attorney has performed the FRCP 11 due diligence duty to present accurate facts. The commenter respectfully suggests that the PCLOB should consider this FRCP 11 “this-is-not-a-team-effort” standard when reviewing the issue of the accuracy of USG FRCP 11 pleadings that did not inform Article III Judges of the Top Secret “FISA secret law.” The PCLOB should consider reviewing FRCP 11 signed pleadings which did not provide the Article III Judge with a companion in camera ex parte FRCP 11 Declaration. The commenter asserts that there should have been scores of 1982-2015 USG in camera ex parte Declarations that informed Article III Judges of the Article II “FISA secret law” that was the legal basis for the 1982-2015 CIA Directors conducting back door warrantless domestic searches of E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizen’s comingled stored content data. Accurate in camera ex parte Declarations would have eliminated any issue of the USG attorneys making Article III Judges the “handmaidens of the Executive.” See § 17 above.

81 The commenter suggests that the PCLOB consider applying the FRCP 11 “this-is-not-a- team-effort” standard to a review of EDNY U.S. Attorney Dearie’s FRCP 11 signed U.S. v Duggan pleadings. This suggestion is out of courtesy and respect for Article III FISC Judge Dearie in order that he learns the damage to the delicate Separation of Powers” that occurred in U.S. v Duggan when AG Smith’s EDNY U.S. Attorney stovepipe bypassed EDNY U.S. Attorney Dearie. AG Lynch can review the “main Justice” U.S. v Duggan case file notes and e-mails to determine if AG Smith intended that U.S. Attorney Dearie not know as a “known-known” fact of the existence of 1) the 1982-1984 E.O. 12333 Top Secret “FISA exempt” NSA TSP and 2) the May 24, 1984 Top Secret “OLC Olson FISA Memo” that determined that the exclusivity provision of the FISA was an “unconstitutional” encroachment on the President’s Article II Commander in Chief inherent authority to conduct warrantless domestic surveillance of U.S. citizens’ comingled stored content data to protect the nation from enemies.

The commenter also suggests that the PCLOB consider applying the Pavelic FRCP 11 “this-is-not-a-team-effort” standard to a review of EDNY AUSA Kathleen Mahoney’s FRCP 11 Robert VII v DOJ April 3, 2006 letter-Brief filed on behalf of AG Gonzales. This was to comply with the Second Circuit March 9, 2006 Robert VII v DOJ Order that the parties answer the Second Circuit’s two FISA questions. http://www.snowflake5391.net/RobertvDOJbrief.pdf. The Second Circuit’s teed up questions reveal the importance of the Pavelic FRCP 11 standard:

The commenter asserts that AAG of the Civil Division Peter Keisler (2003-2006) and OIPR Counsel Baker (2001-2006) both knew that EDNY AUSA Mahoney did not have Top Security clearance to read the “FISC Robert” documents withheld pursuant to FOIA exemption 1 and the “Glomar Response” defense. Snowflake 5391 asserts that they decided that AUSA Mahoney should file the April 3, 2006 Robert VII v DOJ letter-Brief precisely because she had no “known known” knowledge the 1982-2006 E.O 12333 Top Secret “FISA exempt” NSA TSP or the Top Secret “FISA secret law” that was explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the May 6, 2004 Top Secret “FISA exempt” NSA TSP or of the “FISC Robert” documents that OIPR Counsel Baker read as explained in his FRCP 11 signed Robert VII v DOJ “corrected” October 1, 2004 Declaration. http://www.snowflake5391.net/baker.pdf.

The PCLOB’s review of EDNY AUSA Mahoney’s April 3, 2006 letter-Brief along with OIPR Counsel Baker’s October 1, 2004“corrected” Robert VIII Brief and the “main Washington” case file notes and e-mails, illustrate the importance of the Pavelic standard. AAG Keisler knew why “FISC Robert” facts were not revealed in the Mahoney and Baker FRCP 11 signed documents. He knew why he had to make her April 3, 2006 letter-Brief as a “team effort.”

82 The commenter also suggests this PCLOB Pavelic review exercise because AAG of the Civil Division Keisler’s 2006 Robert VII v DOJ litigation strategy nicely illustrates AAG of the OLC Goldmith’s USG “geniuses” point that he explained in his Memoir. The Terror Presidency, W.W.Norton & Company, 2007. Former AAG of the OLC Goldsmith came to understand prior to his honorable resignation, the “genius” of the proponents of the “Unitary Executive” theory whereby they would tightly control the facts provided to different USG decision-makers:

They were geniuses at this,” Goldsmith said. “they could divide up all these problems in the bureaucracy, ask different people to decide things in their lanes, control the facts that they gave them, and then put the answers together to get the result they want. See Conflict Over Spying Led White House to Brink. Gellman, Washington Post, 9-14-08, internet print out 3 of 9. Emphasis Added.

The commenter is asserting that AAG of the Civil Division Keisler was one of AAG of the OLC Goldsmith’s “geniuses” because he knew the facts that answered the Second Circuit’s March 9, 2006 teed up Robert questions. However, he knew these facts were admissions that plaintiff Robert was a FISA “aggrieved person.” He knew why OIPR Counsel Baker affirmed CIA Director Tenet’s FOIA Officer’s use of FOIA Exemption 1 and the ‘Glomar Response” defense. He knew why Snowflake 5391 became CIA Director Casey’s 1980s NSA TSP target.

Then-AAG of the Civil Division Keisler (2003-2006) had been a 1986-1988 Assistant and Associate WH Counsel for President Reagan’s WH Counsels Fred Fielding (1981-1986), Peter Wallison (1986-1987), Arthur Culvahouse (1987-1989). He knew that AG Meese had approved the Mitchell v Forsyth “nonacquiescence” policy. He was AG Ashcroft’s 2002-2003 Principal Deputy Associate AG and knew the off-OMB classified Budget funding source for the E.O. 12333 Top Secret “FISA exempt” NSA TSP servers which had never been reported to the Intelligence Committees in violation of § 413 (a) of the National Security Act. See § 18 above.

On September 18, 2007, then-AAG of the Civil Division Keisler would become the Acting AG bridging the September 17, 2008 resignation of AG Gonzales and the November 9, 2007 confirmation of AG Mukasey. As a result, he knew the facts in AAG of the NSD Wainstein’s November 20, 2007 Memo to AG Mukasey about the May 24, 1984 Top Secret “OLC Olson FISA Memo.” He also knew as one of President Reagan’s Assistant WH Counsels whether President Reagan knew in 1986 about the May 24, 1984 Top Secret “OLC Olson FISA Memo.” This is a key “Past is Prologue” fact on the issue of whether AG Meese had “defrauded” President Reagan re the elephant-in-the room fact that CIA Director Casey was conducting back door warrantless domestic searches of the 1982-1986 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks of U.S. citizens’ stored content data. See § 11 above.

The PCLOB can learn the names of the “geniuses” who concocted the Robert VII v DOJ litigation strategy by applying 2001-2006 DOD Secretary Rumsfeld’s “known-known” historical prism along with the Pavelic “this-is-not-a-team-effort” standard. All of AG of the OLC Goldsmith’s 2004 “geniuses” knew the importance of Judge Garaufis not knowing the “known- known” facts of the E.O. 12333 “FISA exempt” NSA TSP. Former-WH Associate WH Counsel Keisler and the other “geniuses” knew how to control the facts of history. “Who controls the past controls the future: who controls the present controls the past.” 1984, George Orwell.

83 21. The 1991-2015 Chambers v Nasco “fraud upon the court” “nonacquiescence” policy that AG Lynch will be reviewing which will provide her with an opportunity to also review the 1982-2015 DOJ policy and practice that allows USG attorneys to lie-by-omission to Article III Judges if this is necessary to protect the CIA’s domestic sources and methods

On June 6, 1991, in Chambers v Nasco the Supreme Court established a “fraud upon the court” standard that applies to FRCP 11 signed pleadings that Article III Judges rely upon as being accurate. The Supreme Court highlighted the inherent authority of a court to protect its own integrity when false representations are made to the court. One of the remedies is for the Article III Court to conduct its own investigation to determine whether it had been the “victim of the fraud” that was based on misrepresentations made to the Court.

This “historic power of equity to set aside fraudulently begotten judgments,” cite omitted, is necessary to the integrity of the courts for “tampering with the administration of justice in (this)manner …involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public. cites omitted. Moreover, a court has the power to conduct an independent investigation whether it has been the victim of a fraud. Cite omitted. Id. 2132. Emphasis Added.

Throughout the 1992-2014 Robert FOIA actions the plaintiff has made a Chambers v Nasco “fraud upon the court” argument re USG FRCP 11 signed pleadings. None of the Article III Judges in the FOIA actions addressed this “fraud upon the court” issue. Upon information and belief, this was out of Article III deference to the Article II cases involving national security secrets and the use of the FOIA Exemption 1 and the “Glomar Response” defense.

Hence, the significance of plaintiff’s Robert II v CIA and DOJ Summary Judgment Motion for the four 1985 CIA classified “North Notebook” documents. CIA General Counsel Krass knows the E.O. 13256 3.3. Automatic declassification, 25 year rule applies to the 1985 CIA classified documents that are part of a “mosaic of documents” that reveal AG Smith, AG Meese, and FBI Director Judge Webster knew that CIA Director Casey had conducted an E.O. 12333 Top Secret illegal CIA domestic “special activity” at International Medical Center, Inc. in violation of the Boland Amendment and President Reagan’s § 413 (a) of the National Security Act “shall” Congressional Notification duty. The plaintiff asserts that the “North Notebook” documents are connect the dots documents to the “FISC Robert” documents. See §§ 8-14 above.

84 As explained in § 14 above, in Robert II v CIA and DOJ, CIA General Counsel Krass and EDNY U.S. Attorney Lynch had not complied with Judge Seybert’s Local Rules re filing Counter Statements to the “Plaintiff’s Local Rule 56.1 Statement of Material Facts of Motion For Summary Judgment” or co-defendants’ three page letter in opposition the plaintiff’s three page letter outlining his Summary Judgment Motion. CIA General Counsel Krass knows that the CIA has been the lead counsel in this case because EDNY U.S. Attorney Lynch did not have clearance to read the CIA classified “North Notebook” documents. CIA General Counsel Krass knows whether any in camera ex parte Declarations were filed with Judge Seybert in Robert I v CIA and Robert II v CIA and DOJ. She knows whether any in camera ex parte Declarations contained lies-by-omission to deceive Magistrate Judge Lindsay so as to trigger a Chambers v Nasco “fraud upon the court” investigation. See the USG lies-by-omission issue discussed in the plaintiff’s 12-14-11 Robert II v CIA and DOJ Status Affidavit, http://snowflake5391.net/12-14- 11_RIIvCIAandDOJStatusAffidavit%20.pdf and 8-15-12 Robert II v CIA and DOJ Status Affidavit. http://snowflake5391.net/8-15-12_RobertIIvCIA_Status_Affidavit.pdf.

The commenter is presenting to the PCLOB the issue of the application of the Chambers v Nasco “fraud upon the court” standard in Robert II v CIA and DOJ because the March 25, 2015 Federal Register Notice invited comments re counterterrorism concerns. “… the Board seeks comments regarding any concerns about counterterrorism.” Id. The commenter believes that one of the byproducts of the CIA conducting E.O. 12333 CIA domestic “special activities” has been a DOJ policy and practice of allowing USG attorneys to commit “frauds upon the court” based on their “good faith” beliefs this is necessary to protect the CIA sources and methods needed to protect the nation. This has resulted in a USG de facto Chambers v Nasco “nonacquiescence” policy.

In Robert II v CIA and the DOJ, the plaintiff alleged that the CIA “special activity” at IMC was an E.O. 12333 illegal CIA domestic activity. The plaintiff alleged that HHS General Counsel del Real (1981-1985)-IMC Chief of Staff del Real (1985-1986) was CIA Director Casey’s E.O. 12333 illegal CIA domestic agent when he initiated the “Fraud Against the Government” investigation of Robert. The plaintiff alleged that HHS General Counsel del Real used content data that he had secured as a CIA domestic agent from the E.O. 12333 Top Secret “FISA exempt” NSA TSP warrantless wiretaps of Robert. The plaintiff has alleged that HHS General Counsel del Real is the CIA link that established a “fraud upon the court” in Robert II v CIA and DOJ with a “fraud upon the court” in Robert VIII v DOJ, HHS. and SSA.

CIA General Counsel Krass knows whether the plaintiff’s almost incredible allegations are true. The plaintiff knows that that co-defendant AG Lynch will not commit a “fraud upon the court” by deceiving Judge Seybert. As a result, plaintiff’s Robert II v CIA and DOJ Motion for a Summary Judgment will be a test as to whether the DOJ de facto Chambers v Nasco “nonacquiescence” policy continues to protect 2015 illegal CIA domestic sources and methods.

The commenter believes AG Lynch will accept the Robert II v CIA and DOJ quiet settlement offer. He believes that if AG Lynch’s “chain of command” attorneys provide AG Lynch with accurate facts re the 1985-2015 Robert FOIA withheld documents, then AG Lynch will for the first time understand the E.O. 12333 “elephant-in-the-room” fact that the 1982-2015 CIA Directors have conducted back door warrantless domestic searches of E.O 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. If not, then Judge Seybert may decide in Robert II v CIA and DOJ the “fraud upon the court” issue.

85 22. The February 26, 2013 Amnesty v Clapper decision and the “fraud upon the court”

The commenter asserts that the Chambers v Nasco “fraud upon the court” standard should be applied to the FRCP 11 signed Amnesty v Clapper pleadings because the USG attorneys did not inform the Article III Judges of the Top Secret “FISA secret law.” The Record that was reviewed by Judge Koeltl, the Second Circuit, and the Supreme Court did not include the May 24, 1984 Top Secret “ OLC Olson FISA Memo” or the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” As a result, the Record did not include the “elephant-in-the-room” fact that AAG of the OLC Olson determined on May 24, 1984 that the exclusivity provision of the FISA was an “unconstitutional” encroachment on the President’s Article II Commander in Chief authority to conduct domestic surveillance of the E.O. 12333 Top Secret “FISA exempt” NSA TSP. The commenter asserts that if this gaping hole in the Record had been filled, the Supreme Court would not have decided the standing issue on the Record before it. There could have been a remand the case to Judge Koeltl to conduct a Chambers v Nasco “fraud upon the court” to determine “… whether it has been the victim of a fraud.” Id. 2132.

The commenter is asserting that the Supreme Court’s standing decision may have been different if all nine Justices had known of the May 24, 1984 AAG of the OLC Memo that was revealed in AAG of the National Security Division Wainstein’s November 20, 2007 Memo to AG Mukasey. That May 24, 1984 OLC FISA Memo may have been known by Chief Justice Roberts, as the Associate WH Counsel (1981-1985) under WH Counsel Fred Fielding (1981- 1985), and by Justice Alito, as an Assistant SG (1981-1985). AAG of the NSD Wainstein had clearly identified the May 24, 1984 Top Secret “OLC Olson FISA Memo” in his AG Memo:

86 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. 4, n. 4. Underline added. http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB436/docs/EBB-017.pdf

The commenter asserts that a 20/20 hindsight review reveals that AG Holder implemented the Barrett “nonacquiescence” policy by withholding the material fact from Judge Koeltl in Amnesty v. McConnell, 646 F. Supp.2d 633 (SDNY 2009) of the Top Secret “FISA secret law.” AG Holder’s AAG of NSD David Kris (2009-2011) had read the May 24, 1984 Top Secret “OLC Olson FISA Memo” that AAG of the NSD Wainstein had identified in his November 20, 2007 Memo to AG Mukasey. Notwithstanding that fact, AG Holder did not inform the Second Circuit of this Top Secret “FISA secret law” fact. See §§ 3, 19 above.

The commenter asserts that when in 2013 the Second Circuit was considering its Amnesty v Clapper rehearing en banc, both AG Holder and EDNY U.S. Attorney Lynch were subject to the new April 1, 2009 NYS ethics rule that a NYS attorney has a duty to comply with new NYS Professional Responsibility Guidelines. Pursuant to Rule 3.3(a)(3), the NYS licensed AG and U.S. Attorney had a “shall” duty to correct misrepresentations made to Judges:

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. Emphasis added.

AG Lynch continues in 2015 to have the same Rule 3.3(a)(3) duty that she had in 2013 when the Second Circuit was considering its Amnesty v Clapper en banc hearing decision. AG Lynch will have the benefit of 20/20 hindsight when she learns the “elephant-in-the-room” fact that the 1982-2015 CIA Directors had conducted back door warrantless domestic searches of the 1982-2013 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data in the USG servers. When AG Lynch learns this fact, then she will have to make the decision whether she has a Rule 3.3(a)(3) duty to inform Judge Koeltl, the Second Circuit, and Supreme Court of the 1984-2015 Top Secret Article II “FISA secret law” that is explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo.”

The commenter respectfully suggests that the PCLOB consider this Amnesty v Clapper “fraud upon the court” issue because the Amnesty v Clapper standing decision prevents Article III review. Catch 22. Hence, the importance of 2015 PCLOB’s review of this Article II issue.

87 23. The March 20, 2013 City of Arlington v FCC decision and the Chevron sparring of Justice Scalia for the majority and Chief Justice Roberts in dissent over the “fox-in-the- hen-house” metaphor issue when making Article III Chevron jurisdictional decisions

On March 20, 2013, the Supreme Court decided City of Arlington v FCC, and restated the Chevron Doctrine that is applied when there is to be a facial reading of a statute. That decision included the dicta sparring between Justice Scalia and Chief Justice Roberts re the use of a “fox-in-the-hen house” metaphor in deciding the Article III jurisdictional issue as to whether the Chevron Doctrine applied. In order for that “fox-in-the-hen-house” metaphor to be meaningful there must be indisputable facts. The Article III court is interpreting an Article I statute on its face with a presumption that a “fraud upon the court” had not been committed by any FRCP 11 pleading not being subject to the individual accountability of Pavelic “this-is-not-a- team-effort” standard. The commenter is asserting that the Chevron Doctrine cannot be applied if the Article III Court cannot rely upon the accuracy of USG’s FRCP 11 signed pleadings.

Justice Scalia addressed Chief Justice Robert’s dissent’s “fox-in-the-henhouse syndrome” argument. Chief Justice Roberts explained that there should first be an Article III jurisdictional determination prior to deciding whether the Chevron standards apply:

Those who assert that applying Chevron to “jurisdictional” interpretations “leaves the fox in charge of the henhouse” overlook the reality that a separate category of “jurisdictional” interpretations does not exist. The fox- in-the-henhouse syndrome is to be avoided not by establishing an arbitrary and indefinable category of agency decision making that is accorded no deference, but by taking seriously, and applying rigorously, in all cases, statutory limits on agencies’ authority. Where Congress has established a clear line, the agency cannot go beyond it; and where Congress has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow. But in rigorously applying the latter rule, a court need not pause to puzzle over whether the interpretative question presented is “jurisdictional.” If “the agency’s answer is based on a permissible construction of the statute,” that is the end of the matter. Chevron, 467 U. S., at 842. Id. 1874. Emphasis added.

Justice Scalia explained that there was no jurisdiction and non-jurisdiction distinction because the authority of the agency is prescribed by Congress: That is not so for agencies charged with administering congressional statutes. Both their power to act and how they are to act is authoritatively

88 prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires. Because the question—whether framed as an incorrect application of agency authority or an assertion of authority not conferred—is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out some arbitrary subset of such claims as “jurisdictional.” Id. 1869. Emphasis added.

Chief Justice Roberts explained his fundamental disagreement with Justices Scalia, Thomas, Ginsburg, Sotomayor, Kagan, and Breyer, based on the fact that the Article III Court has to first decide whether the Article II agency is entitled to any deference:

My disagreement with the Court is fundamental. It is also easily expressed: A court should not defer to an agency until the court decides, on its own, that the agency is entitled to deference. Courts defer to an agency’s interpretation of law when and because Congress has conferred on the agency interpretive authority over the question a tissue. An agency cannot exercise interpretive authority until it has it; the question whether an agency enjoys that authority must be decided by a court, without deference to the agency. Id. 1877. Emphasis added.

Chief Justice Roberts cited to one of the Constitution’s author’s definition of tyranny when there is too much power if the powers of legislative, executive, and judiciary were in the same governing branch. His separation of powers concern was the accumulating power of the Article II President to make legislative, executive, and judiciary decisions:

One of the principal authors of the Constitution famously wrote that the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, . . . may justly be pronounced the very definition of tyranny.” The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison). Although modern administrative agencies fit most comfortably within the Executive Branch, as a practical matter they exercise legislative power, by promulgating regulations with the force of law; executive power, by policing compliance with those regulations; and judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have violated their rules. The accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan; it is a central feature of modern American government. Id. 1877-1878. Emphasis added.

Chief Justice Roberts raised the specter of a Big Brother government agencies that are “poking into every nook and cranny of daily life” that requires oversight:

The Framers did divide governmental power in the manner the Court describes, for the purpose of safeguarding liberty. And yet . . . the citizen confronting thousands of pages of regulations—promulgated by an agency directed by Congress to regulate, say, “in the public interest”—can perhaps be excused for thinking that it is the agency really doing the legislating. And

89 with hundreds of federal agencies poking into every nook and cranny of daily life, that citizen might also understandably question whether Presidential oversight—a critical part of the Constitutional plan—is always an effective safeguard against agency overreaching. Id. Emphasis added. Id. 1879.

Chief Justice Roberts cited to the core Marbury v Madison separation of powers principle that is the Judiciary that says what the law “is” and not the Executive:

“It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). The rise of the modern administrative state has not changed that duty. Indeed, the Administrative Procedure Act, governing judicial review of most agency action, instructs reviewing courts to decide “all relevant questions of law.” 5 U. S. C. §706. Emphasis added. We do not ignore that command when we afford an agency’s statutory interpretation Chevron deference; we respect it. We give binding deference to permissible agency interpretations of statutory ambiguities because Congress has delegated to the agency the authority to interpret those ambiguities “with the force of law.” Id. 1880. Emphasis added.

Chief Justice Roberts framed the administrative law debate with Justice Scalia as the Court’s duty to “police the boundary between the Legislature and Executive” branches:

But there is another concern at play, no less firmly rooted in our constitutional structure. That is the obligation of the Judiciary not only to confine itself to its proper role, but to ensure that the other branches do so as well.

An agency’s interpretive authority, entitling the agency to judicial deference, acquires its legitimacy from a delegation of lawmaking power from Congress to the Executive. Our duty to police the boundary between the Legislature and the Executive is as critical as our duty to respect that between the Judiciary and the Executive. See Zivotofsky v. Clinton, 566 U. S. ___, (2012) (slip op., at 8). In the present context, that means ensuring that the Legislative Branch has in fact delegated lawmaking power to an agency within the Executive Branch, before the Judiciary defers to the Executive on what the law is. That concern is heightened, not diminished, by the fact that the administrative agencies, as a practical matter, draw upon a potent brew of executive, legislative, and judicial power .And it is heightened, not diminished, by the dramatic shift in power over the last 50 years from Congress to the Executive—a shift effected through the administrative agencies.

We reconcile our competing responsibilities in this area by ensuring judicial deference to agency interpretations under Chevron—but only after we have determined on our own that Congress has given interpretive authority to the agency. Our “task is to fix the boundaries of delegated authority,” Monaghan, 83 Colum. L. Rev., at 27; that is not a task we can delegate to the agency. We do not leave it to the agency to decide when it is in charge. Id. 1886. Emphasis added.

90 The commenter notes that both Clapper v Amnesty and City of Arlington v FCC were decided prior to the June, 2013 Snowden leaks. As a result, if the Supreme Court did not reverse the Second Circuit’s Clapper v Amnesty decision, then that case would have been remanded to Judge Koeltl to decide the Clapper v Amnesty FISA constitutionality issue on the merits. If so, then former DOD Secretary Rumsfeld’s “known-known,” known-unknown,” and “unknown- unknown” historical prism would have come in to play. Judge Koeltl, the Second Circuit, all nine Justices of the Supreme Court, and the public could learn of AAG of the NSD Wainstein’s November 20, 2007 Memorandum to AG Mukasey with his citation to AAG of the OLC Olson’s May 24, 1984 OLC Memo “Re Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1979.” “Traditional Fourth Amendment analysis holds that once evidence is constitutionally seized, its dissemination or subsequent use raises no additional Fourth Amendment question.” Id. Emphasis added. See 10-3-13 Robert Review Group Comments § D and § 2 above.

The commenter notes the Article II history that Justice Scalia and Chief Justice Roberts drew upon when sparring over the Chevron jurisdictional issue. Justice Scalia had been the 1974-1977 AAG of the OLC when AGs Saxbe and Levi were implementing President Ford’s December 19, 1974 de facto E.O. delegating to the AG the authority to authorize the FBI Director to conduct warrantless domestic surveillance of U.S citizens to protect the nation from enemies.. Chief Justice Roberts had been a 1981-1985 Associate WH Counsel when the May 24, 1984 Top Secret “OLC Olson FISA Memo” determined that the exclusivity provision of the FISA was an “unconstitutional” encroachment of the President’s Article II Commander in Chief authority. This is an important fact because both Justices based their arguments on the Marbury v Madison principle that Article III Judges decide what the law “is.” See §§ 15, 18-22 above.

The commenter suggests that a valuable PCLOB exercise would be to speculate whether with the 20/20 hindsight of the knowing that Congress enacted the June 2, 2015 USA Freedom Act to prohibit the USG from storing metadata in USG servers, what recommendations AAG of the OLC Scalia would have made to AG Levi after the Church Committee Report re the viability of President Ford’s December 19, 1974 de facto E.O. in his Memorandum to AG Saxbe. The PCLOB should consider applying that same historical hypothetical to what Associate WH Counsel Roberts would have recommended to WH Counsel Fielding after the June 19, 1985 Mitchell v Forsyth decision re the viability of the Article II Top Secret “FISA secret law” as explained the May 24, 1984 Top Secret “OLC Olson FISA Memo.” See §§ 18, 21 above.

The commenter asserts that AG Lynch now has the affirmative duty to make her own decision as to the viability of the Article II Top Secret “FISA secret law” as explained the May 24, 1984 Top Secret “OLC Olson FISA Memo.” Hence, the importance of the PCLOB requesting that AG Lynch declassify the May 24, 1984 Top Secret “OLC Olson FISA Memo” and apply the City of Addington “fox-in-the-hen house” metaphor. After learning the “FISA secret law,” AG Lynch will understand the “elephant-in-the-room” existence of the 2015 CIA-NSA TSP. The Robert II v CIA and DOJ-Robert VIII v DOJ, HHS, and SSA plaintiff believes that AG will decide that she will not be a July, 2015 “fox-in-the-henhouse.” If so, then there will be a Robert II v CIA and DOJ quiet settlement in the summer of 2015. If not, then the ever lurking “fox-in-the-henhouse” issue will be presented in the plaintiff’s Robert II v CIA and DOJ Motion for a Summary Judgment and in his Robert VIII v DOJ, HHS, and SSA Motion seeking Judge Garaufis’ pre-clearance Order to file a new FOIA complaint. See §§ 7, 14 above.

91 24. The May 7, 2015 Second Circuit ACLU v Clapper decision and applyng its statutory interpretation “hiding elephants in mouseholes” metaphor to the May 24, 1984 OLC Olson FISA Memo that the exclusivity provision of the FISA was an “unconstitutional” encroachment on the President’s Article II Commander in Chief inherent authority

The commenter submits that the PCLOB will learn from reading the May 24, 1984 Top Secret “OLC Olson FISA Memo” that it highlights the importance of the Second Circuit’s May 7, 2015 ACLU v Clapper, analysis of Section 215 of the USA Patriot Act. Although that statute has now expired, the decision provides a “hiding elephants in mouseholes” metaphor that applies to AAG of the OLC Olson’s 1984 interpretation of the exclusivity provision of the FISA. “Congress…does not alter the fundamentals of a regulatory scheme in vague terms or ancillary provisions—it does not ….hide elephants in mouseholes. “ Id. slip op. 75-76. Unless President Obama believes that Congress did not intend that the exclusivity provision of the FISA means exactly what it says, the USA Freedom Act now frees both AG Lynch and President Obama to confront head on the June, 2015 E.O. 12333 issue of the 1982-2015 AGs having implemented the theory that the President has Article II Commander in Chief inherent authority to conduct warrantless domestic searches of U.S. citizens’ stored content data without any Article I Congressional Oversight or any Article III FISC checks and balances. See § 11 above.

In ACLU v Clapper, the Second Circuit applied a straight forward statutory analysis in its holding that AG Holder was illegally implementing the § 215 of the USA Patriot Act metadata program. The Second Circuit reviewed the legislative history of § 215 and determined that Congress had never intended that the USG was to conduct bulk collection, retention, and dissemination of metadata re U.S. citizens pursuant to general FISC Primary Orders:

Such expansive development of government repositories of formerly private records would be an unprecedented contraction of privacy expectations of all Americans. Perhaps such a contraction is required by national security needs in the face of the dangers of contemporary domestic and international terrorism. But we would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakabale language. There is no evidence of such debate in the legislative history of §215, and the language of the statute on its face, is not naturally read as permitting investigative agencies, on the approval of the FISC, to do any more than obtain the sorts of information routinely acquired in the course of criminal investigation of “money laundering (and) drug dealing. Id. slip opinion 74-75. Emphasis added.

The Second Circuit used a “hiding elephants in mouseholes” metaphor for the Court to assess the intent of Congress when enacting § 215:

Such a monumental shift in our approach to combating terrorism requires a clearer signal from Congress than a recycling of oft-used language long held in similar contexts to mean something far narrower. “Congress…does not alter the fundamentals of a regulatory scheme in vague terms or ancillary provisions—it does not ….hide elephants in mouseholes. “ Whitman v. Am. Trucking Ass’ns., 531 U.S., 468 (2001). The language of

92 215 is decidedly to ordinary for what the government would have us believe is such an extraordinary departure from any accepted understanding of the term “relevant to an authorized investigation.” Id. 75-76. Emphasis added.

The commenter suggests that the PCLOB apply this statutory construction “hiding elephants in mouseholes” metaphor to AAG of the OCL Olson’s May 24, 1984 interpretation of the exclusivity provision of the FISA. As per the Second Circuit’s review of the legislative history of Section 215 of the USA Patriot Act, the PCLOB will find throughout the debates re the FISA of 1978, that the Article I Congress was seeking to statutorily remedy the Article II USG abuses of warrantless wiretapping that were revealed in the Church Committee Report. The 1978 enactment of the exclusivity provision of the FISA was based on a Congressional 1978 “elephant-in-the-room” fear that after the Church Committee, the CIA could again conduct back door warrantless surveillance of the U.S. citizens in facial violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and the Fourth Amendment.

The commenter asserts that the PCLOB will find unanimity of all Constitutional scholars that one of the purposes of the exclusivity provision of the FISA was to close the loophole that had evolved from the Supreme Court’s June 19, 1972 decision in United States v U.S. District Court (Keith), 407 U.S. 297 (1972). In Keith the Title III “wall” was breached that was to prevent AG Mitchell from conducting warrantless wiretapping of U.S. persons. In Keith, the Supreme Court rejected AG Mitchell’s argument (that would reappear in Mitchell v Forsyth) that there should be no judicial review of the President’s authority to conduct warrantless surveillance of U.S. persons that the AG determined is necessary in order to protect the nation: But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case, we hold that this requires an appropriate prior warrant procedure. We cannot accept the Government's argument that internal security matters are too subtle and complex for judicial evaluation. Courts regularly deal with the most difficult issues of our society. There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases. Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of "ordinary crime." If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance. Id. 310. Emphasis added.

93 The commenter suggests that if AG Lynch declassifies the May 24, 1984 Top Secret” OLC FISA Memo, then all of the PCLOB Members will learn how AAG of the OLC Olson dealt with the Keith decision when he came to his conclusion that the exclusivity provision of the FISA was an “unconstitutional” encroachment on the President’s Article II Commander in Chief “inherent authority” to conduct warrantless domestic surveillance of U.S citizens. The commenter suggests the PCLOB ask former-PCLOB Member Olson whether with the 20/20 hindsight of knowing Congress enacted the USA Freedom Act to prohibit the USG from storing metadata, whether he would stand by his May 24, 1984 Memo. The commenter believes that former SG Olson would answer that based on Riley v California, it should be rescinded.

The May 7, 2015 Second Circuit’s ACLU v Clapper decision provides AG Lynch with a 2015 statutory interpretation standard pathway to formally rescind AAG of the OLC Olson’s May 24, 1984 Top Secret OLC FISA Memo sent to AG Smith. “Re Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1979.” “Traditional Fourth Amendment analysis holds that once evidence is constitutionally seized, its dissemination or subsequent use raises no additional Fourth Amendment question.” Id. Emphasis added. See §§ 2, 23 above.

The Second Circuit’s ACLU v Clapper statutory interpretation decision is consistent with the bedrock Marbury v Madison principle that Article III Judges, not Article II AGs and AAGS of the OLC, decide what the law “is.” AG Lynch can ground a decision to rescind the May 24, 1984 Top Secret “OLC Olson FISA Memo” on Marbury v Madison. See § 15 above.

AG Lynch knows that when voting on the USA Freedom Act, all 535 Members had considered the issue of whether the Congress should “trust” the Executive Branch with storing the metadata of U.S. citizens. She knows the majorities in both the House and Senate concluded that they did not “trust” the Executive Branch with storing the metadata. AG Lynch could reasonably conclude that if the Congress does not trust the Executive Branch with storage of metadata, then Congress would not “trust” CIA Director Brennan with the 2015 ability to conduct back door warrantless domestic searches of the E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. Id. See § 2 above.

AG Lynch has to decide whether to request that SG Verrelli file an ACLU v Clapper petition for a writ of certiorari. Although § 215 of the USA Patriot Act sunset on May 31, 2015 and on June 2, 2015 the Congress enacted the USA Freedom Act, the Second Circuit’s ACLU v Clapper decision included a statutory interpretation holding that can be cited to other Courts. If AG Lynch decides that a petition for a writ of certiorari should not be filed, then this will be with the understanding that ACLU v Clapper is the “law” of the Second Circuit. The Second Circuit law will no longer be the Article II “FISA secret law” explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo” that the exclusivity provision of the FISA is “unconstitutional.”

The commenter further asserts that if AG Lynch applies the Second Circuit May 7, 2015 ACLU v Clapper “hiding elephants in mouseholes” statutory interpretation standard, to the fact that none of the 1982-2015 Presidents informed the “Gang of Eight” of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP, then she will know that ISSO Director Leonard got it exactly right. “It is as if Lewis Carroll, George Orwell, and Franz Kafka jointly conspired to come up with the ultimate recipe for unchecked executive power. Id. 8. Emphasis added.

94 25. Summary

The commenter suggests that the PCLOB consider using the “hiding elephants in mouseholes,” “elephant-in-the-room,” and “foxes-in-the-henhouse” metaphors. These metaphors will help the public answer the E.O. 12333 counterterrorism activities “how-could-this-have- ever-happened 1982-2015 hindsight question: Why were there no Article I or Article II or Article III checks and balances to the “elephant-in-the-room” fact that the 1982-2015 AGs and FBI Directors and WH Counsels had known that the 1982-2015 CIA Directors had been conducting Top Secret back door warrantless domestic searches of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S citizens’ stored content data?

The commenter has suggested that the PCLOB should recommend that AG Lynch declassify the E.O. 12333 May 24, 1984 Top Secret “OLC Olson FISA Memo” to trigger a public debate on the limits of the President’s Commander in Chief inherent authority to conduct warrantless domestic surveillance of U.S. citizens to protect the nation from enemies. This is a public debate that is timely because CIA Director Brennan continues in June, 2016 to conduct back door warrantless domestic searches of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. This is based on the Article II “FISA secret law” that the exclusionary provision of the FISA of 1978 is an “unconstitutional” encroachment on the President’s unlimited Article II Commander Chief “inherent authority” to conduct surveillance of U.S. citizens to protect the nation from enemies.

If there is a public debate re the E.O. 12333 May 24, 1984 “OLC Olson FISA Memo,” then the commenter believes that no USG attorney, past or present, who will defend this Article II Top Secret “FISA secret law.” Quite the contrary, the commenter believes that, if asked, AG Loretta Lynch, SG Donald Verrelli, DAG Sally Yates, Acting Associate Stuart Delery, Acting AAG of the OLC Karl Thompson, Acting AAG of the Civil Division Joyce Branda, Acting AAG of the OLP Elana Tyrangiel, CIA General Counsel Caroline Krass, DOD General Counsel Stephen Preston, DNI General Counsel Robert Litt, DHS General Counsel Stevan Bunnell, FBI General Counsel James Baker, Assistant to the President for Homeland Security and Counterterrorism Lisa Monaco, and WH Counsel W. Neil Eggleston would all agree that Riley v California “overruled” the E.O. 12333 May 24, 1984 Top Secret “OLC Olson FISA Memo.”

The commenter respectfully submits that the PCLOB will be fulfilling its PCLOB Mission if it triggered a public discussion on the need for 2015 Article I, Article II, and Article III limits on the 2015 “elephant-in-the-room” issue: USG attorney-patriots heretofore unchallenged belief that the President has unlimited Article II Commander in Chief “inherent authority” to conduct E.O. 12333 warrantless domestic searches of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data.

Thank you for the opportunity to file this comment pursuant to the PCLOB’s March 23, 2015 Federal Register Notice Request for Public Comments on Activities Under Executive Order 12333. The commenter filed this lengthy comment because it provides the PCLOB with background facts re the pending Robert II v CIA and DOJ and Robert VIII v DOJ, HHS, and SSA FOIA actions which seek the release of a “mosaic of documents” that reveal that 1982-2015 AGs and FBI Directors have known that the 1982-2015 CIA Directors have violated the exclusivity provision of the FISA based on the E.O. 12333 Top Secret “FISA secret law.”