Charles Robert 441 B. West Broadway Long Beach, New York 11561 516-889-2251

10-3-14- White Paper (WP) of the Robert II v CIA and DOJ, cv 02-6788 (Seybert, J) plaintiff reporting his last failed quiet settlement offer, facts that occurred after he filed his August 12, 2014 status letter, and his intent to file his Individual Motion Practice Rule F (2) letter request on October 7, 2014 for a Summary Judgment Motion conference

This is the Robert I v CIA, cv 00-4325 (Seybert, J), and Robert II v CIA and DOJ, cv 02-6788 (Seybert, J), plaintiff’s final monthly status report that informs the Court of his last failed attempt for a quiet settlement. The plaintiff reports facts that he learned occurred after he had filed his last August 12, 2014 status letter to the Court re his quiet settlement attempts. See the plaintiff’s monthly status letters that were filed after the plaintiff had filed his Court ordered 12-14-11 Robert II v CIA and DOJ Status Affidavit, http://snowflake5391.net/12-14- 11_RIIvCIAandDOJStatusAffidavit%20.pdf, and his 8-15-12 Robert II v CIA and DOJ Status Affidavit, http://snowflake5391.net/8-15-12_RobertIIvCIA_Status_Affidavit.pdf.

On October 3, 2014, the plaintiff informed Judge Seybert of his last failed attempt to secure a quiet settlement. He also informed the Court that the co-defendants’ attorneys CIA General Counsel Caroline Krass and EDNY U.S. Attorney Loretta Lynch had not served the plaintiff with co-defendants’ Counter Statement to the plaintiff’s July 28, 2014 “Plaintiff’s Local Rule 56.1 Statement of Material Facts of Motion For Summary Judgment.” Pursuant to Local Rule 56.1, the co-defendants had 14 days to serve the co-defendants’ Counter Statement. The co- defendants’ attorneys did not request an adjournment date.

The plaintiff informed the Court that pursuant to the Court’s Individual Motion Practice Rule F (2), the plaintiff will on October 7, 2014 file his three page letter requesting a Summary Judgment Pre-Motion Conference. The co-defendants are to file their opposition to that Motion within seven days. The Court then schedules a Summary Judgment Pre-Motion Conference.

The plaintiff informed the Court he would make an arithmetic Summary Judgment argument that President Obama’s December 29, 2009 E.O. 13526, § 3.3 Automatic Declassification 25 year rule, applies to the release of the four 1985 CIA classified documents:

1. 4-22-85 “IMC” Top Secret Working Paper CIA Exemption 3 http://www.snowflake5391.net/NorthNotebook.pdf.

2. 9/6/85 North-CIA-FBI Exemptions 1, 3 with 9/10/85 NHAO notation http://www.snowflake5391.net/9-6-85NorthCIA.pdf.

3. 9/16/85 North-Call to Perot CIA Exemptions 1 and 3 http://snowflake5391.net/perot.pdf.

4. 10/1/85 CIA-DOD FOIA Exemption 1 and 3 and medivac helos http://www.snowflake5391.net/medivachelos.pdf.

1 The plaintiff will also argue that the Court should draw an inference from the fact that the co-defendants CIA Director John Brennan and AG Eric Holder decided not to serve the plaintiff with a Local Rule 56.1 Counter Statement. The plaintiff will argue that the Court should consider this fact an admission that the co-defendants agree to the plaintiff’s July 28, 2014 “Plaintiff’s Local Rule 56.1 Statement of Material Facts of Motion For Summary Judgment.” The plaintiff’s Statement identified the four one-page 1985 CIA classified redacted documents and applied the E.O. 13526, § 3.3 Automatic Declassification 25 year rule: 1985+25=2010.

On September 25, 2014, AG Holder announced his resignation that would be effective after President Obama’s new AG is confirmed and takes his/her AG’s Oath to defend the Constitution. The plaintiff anticipates that AG Holder may possibly have as long as the end of 2014 to reconsider the plaintiff’s heretofore rejected quiet settlement offer. See § B below.

The plaintiff informed Judge Seybert that he filed this White Paper (WP) with the Clerk of the Court as a deterrent to CIA General Counsel Krass filing an October, 2014 in camera ex parte Declaration with half-truth CIA assertions. The plaintiff has alleged that the Robert II v CIA and DOJ case file notes and e-mails reveal whether the CIA General Counsels had filed in camera ex parte Declarations with the intent to make Magistrate Judge Arlene Lindsay the “handmaiden” of the 2002-2014 CIA Directors. “Under no circumstances should the Judiciary become the handmaiden of the Executive.” Doe, et. al. v Mukasey, Mueller, and Caproni, 549 F 3d 861, 870 (2d Cir. 2008). This 10-3-14 WP is intended to be a deterrent to CIA General Counsel Krass filing an in camera ex parte Declaration opposing the plaintiff’s Motion for a Summary Judgment that withholds material CIA “sources and methods” facts from the Court.

The plaintiff has asserted that the Robert II v CIA and DOJ FOIA requested “North Notebook” documents reveal a policy and practice of 1982-2014 AGs’ delegatees approving CIA Directors serial violations of the December 4, 1981 E.O. 12333 prohibition of CIA Directors conducting CIA domestic “special activities.” He alleges that CIA Director Brennan knows that AG Meese knew that CIA Director Casey was conducting CIA domestic “special activities” 1) at the Florida HMO International Medical Center, Inc. (IMC) and 2) at the NSA where CIA Director Casey’s analysts had conducted “back door” warrantless searches of the 1982-1985 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data that included Top Secret “FISC Robert” documents that were withheld pursuant to the CIA’s use of FOIA exemption 1 and the “Glomar Response” defense.

The plaintiff filed his first FOIA action, Robert v Holz, cv-85-4205 (Wexler, J), on November 18, 1985. He sought documents that reveal why HHS General Counsel del Real (1981-1985) had initiated a December, 1984 “Fraud Against the Government” investigation of Robert. He made the allegation that HHS General Counsel del Real was CIA Director Casey’s illegal CIA domestic agent who was tasked to eliminate the Ruppert v Schweiker lead counsel who was challenging HHS General Counsel del Real’s 1982-1985 Jackson v. Schweiker, 683 F. 2d 1076 (7th Cir. 1982), “nonacquiescence” policy. The plaintiff alleged that HHS General Counsel del Real was illegally diverting unaudited HHS funds to pay for the illegal CIA domestic “special activities” that could not be funded with OMB classified funds because AG Smith had not complied with the § 413 (a) of the National Security Act “Gang of Eight” Notification duty. He makes the same “Past is Prologue” allegations in this October 3, 2014 White Paper because he believes that a mosaic of FOIA requested documents prove true his grave 1985 allegations.

2 The plaintiff informs the Court of the drumbeat of the following facts that he learned have occurred after he filed his August 12, 2014 status letter with the Clerk of the Court:

The September 30, 2014 decision of Acting Associate AG Delery, the 2012-2014 AAG of the Civil Division supervising attorney of Robert II v CIA and DOJ, not to reverse the rejection of the plaintiff’s post-Snowden renewed request for a quiet settlement. See § A below.

AG Holder’s September 25, 2014 resignation announcement provides an opportunity for Acting Associate AG Delery to recommend that AG Holder accept the quiet settlement offer and end the DOJ policy of withholding material facts from Article III Judges to protect CIA sources and methods of conducting illegal CIA domestic “special activities.” § B.

CIA General Counsel Krass’ August 11, 2014 decision not to file a Robert II v CIA and DOJ Counter Statement was a decision to defend the E.O. 12333 CIA domestic “sources and methods” of implementing a Marbury v Madison “nonacquiescence” policy based on the Top Secret Article II “secret law” not known to Article III Judges. § C.

DNI Director Clapper’s August 11, 2014 posting on the DNI website of newly declassified documents re the metadata program that reveal to the public that the FISC was not informed of the “FISA secret law” of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP that is based on the May 24, 1984 Top Secret “OLC Olson FISA Memo.” § D.

The August 11, 2014, Second Circuit NY Times v DOJ decision re redacted OLC FOIA opinions and the procedure for District Court in camera ex parte review. § E below.

The August 14, 2014 State Department “whistleblower” complaint re the NSA TSP. § F.

The August 15, 2014 NY Times v DOJ Notice of Lodging of Classified documents. § G.

The August 16, 2014 declassified Top Secret OLC drone killing memo. § H.

The August 17, 2014 Dowd article re AG Holder’s decision whether to indict NY Times investigative reporter James Risen re a classified document leak and AG Holder’s knowledge of the accuracy AG Gonzales’ 2005 Motion to secure the December 9, 2005 Robert VII v DOJ injunction re Robert filing new FOIA requests without a pre-clearance Order. § I.

The August 18, 2014 Statement of DNI CLPO Officer Joel re “minimization” procedures. § J.

The August 18, 2014, Second Circuit NY Times v DOJ denial of AG Holder’s petition for a panel and en banc rehearing re the release of a Top Secret FOIA requested document. § K.

The August 21, 2004 GAO Report re the Congressional Notification duty of the President. § L.

The August 22, 2014 DNI Clapper declassified 2004 Declaration of CIA Director Tenet. § M.

The August 22, 2014 OIPR Counsel Baker’s “Report Regarding FBI Databases.” § N.

3 The August 25, 2014 Intercept Snowden leaked NSA ICREACH program documents. § O.

AAG of the Civil Division Delery’s September 2, 2014 ACLU v Clapper oral argument. § P.

AG Holder’s September 5, 2014 appointment of Acting Associate AG Delery. § Q.

The September 5, 2014 re-reclassification of May 6, 2004 “OLC Goldsmith FISA Memo.” § R.

The September 5, 2014 declassification of the July 16, 2004 OLC Goldsmith STELLAR WIND Memo that cited to the Supreme Court’s Hamdi v Rumsfeld decision. § S.

The September 5, 2014 posting of declassified Iran Contra documents. § T.

The September 11, 2014 DNI Clapper declassified Yahoo documents. § U.

The September 12, 2014 DNI Clapper Notice of the extended metadata FISC Order. § V.

The plaintiff’s September 15, 2014 letter to Acting Associate AG Delery requesting that he review the DOJ litigation strategy in Robert II v CIA and DOJ and Robert VIII v DOJ, HHS, and SSA as revealed in the DOJ case file notes and e-mails. § W.

The September 15, 2014 FOIA request for the “OLC Riley v California Memo.” § X.

The September 30, 2014 “Glomar Response” FOIA decision of OLC Special Counsel Colborn denying the September 15, 2014 FOIA request for the “OLC Riley v California Memo. § Y.

The OLC’s September 30, 2014 “Glomar Response” decision re the “OLC Riley v California Memo” decision reveals the fatal flaw of the implementation of the Top Secret Article II “FISA secret law” because FISC Judge Dearie and FISC-R Second Circuit Judge Cabranes have not read the Top Secret 1984, 2004, and 2014 Top Secret OLC FISA Memos. § Z.

The plaintiff’s putative October 24, 2014 FOIA request for DNI Clapper’s July 17, 2014 Report to President Obama re the USG’s storage of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. § AA.

The plaintiff will cite to the “North Notebook” documents in his Robert VIII v DOJ, HHS, and SSA Motion filed with Judge Garaufis requesting a pre-clearance Order to file a new FOIA complaint seeking documents that will prove whether AGs had committed a “fraud upon the court” in Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA. § BB.

The Robert II v CIA and DOJ “North Notebook” documents reveal whether HHS General Counsel del Real was CIA Director Casey’s illegal CIA domestic agent when he implemented the 1982-1985 Jackson v Schweiker “nonacquiescence” policy that is the basis for the denial of the due process rights of millions of 1994-2014 Ford v Shalala class members. § CC.

Summary of Final Robert II v CIA and DOJ status letter. § DD.

4 A. The September 30, 2014 decision of Acting Associate AG Delery, the 2012-2014 AAG of the Civil Division supervising attorney of Robert II v CIA and DOJ, not to reverse his rejection of the plaintiff’s post-Snowden renewed request for a quiet settlement

On September 30, 2014, Acting Associate AG Stuart Delery rejected the plaintiff’s September 15, 2014 request that he review the decision of 2012-2014 AAG of the Civil Division Delery to reject the plaintiff’s post-Snowden renewed request for a quiet settlement. On September 15, 2014, the plaintiff had respectfully suggested that he provide a response by September 30, 2014. “If there are no quiet settlement negotiations in place by September 30, 2014, then the plaintiff will be filing his required Local Rule three page letter to Judge Seybert.” He did not reverse his decisions as AAG of the Civil Division to reject the quiet settlement offer.

Acting Associate AG Delery has a 2009-2014 DOJ institutional memory of plaintiff’s grave allegations re the 1982-2014 CIA Directors serial violation of the National Security Act of 1947 and December 4, 1981 E.O. 12333 prohibition on CIA domestic covert operations. He was:

1. 2009 Chief of Staff and Counselor to 2009 Deputy Attorney General (DAG) Ogden who had been the AAG of the Civil Division from 1999-2001 when the 2000 Robert I v CIA was pending; 2. 2010 Associate DAG for Acting DAG Grindler (2010); 3. August 2010 until March 2012 Senior Counselor to AG Holder; 4. March 12, 2012 AG Holder’s Acting AAG of the Civil Division; 5. August 5, 2013 Senate confirmed AAG of the Civil Division.

As a result, Acting Associate AG Delery knows that the four one-page 1985 CIA classified documents are connect-the-dots documents with the plaintiff’s other FOIA requested documents that the plaintiff alleges contain “smoking gun” evidence of 1982-2014 illegal CIA domestic “special activities. He knows whether these 1985 CIA classified documents contain connect-the-dots evidence that CIA Director Casey (1981-1986) had conducted illegal CIA domestic “special activities” 1) at the Florida HMO International Medical Center, Inc. (IMC) and 2) at the NSA where CIA analysts conducted “back door” CIA domestic warrantless searches of the 1982-1985 E.O. 12333 “FISA exempt” Top Secret NSA TSP U.S. citizens’ comingled stored content data. See 12-14-11 and 8-15-12 Robert II CIA and DOJ Status Affidavits.

Acting Associate AG Delery knows that President Obama decided that the USG will no longer store NSA collected metadata because of the potential for abuse. He knows Congress is considering legislation to statutorily bar the USG from storing metadata. However, he also knows that President Obama and 535 Members of Congress do not know that the 1982-2014 CIA Directors conducted “back door” warrantless searches of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ commingled stored content data sets.

On September 2, 2014, AAG of the Civil Division Delery presented his ACLU v Clapper oral argument to the Second Circuit panel of Judges Circuit Judges Gerard Lynch, Robert Sack, and Vernon Broderick. The Second Circuit is considering the constitutionality of the NSA metadata program. AAG of the Civil Division Delery did not inform the panel that AG Holder was implementing the Article II “FISA secret law” established in the May 24, 1984 Top Secret “OLC Olson FISA Memo, ” March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” and July, 2014 “OLC Riley v California Memo.” See §§ X, Y below.

5 On September 2, 2014, after his oral argument, the Robert II v CIA and DOJ plaintiff respectfully asked then-AAG of the Civil Division Delery whether the Office of Legal Counsel (OLC) had made a decision whether the Supreme Court’s June 25, 2014 Riley v California, 134 S.Ct. 2473 (2014), holding that the Fourth Amendment applied to the stored data in a U.S. citizen’s cell phone, applied to the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. He responded with a “I cannot answer that question” response. The Robert v Holz-Robert VII v DOJ, Robert VIII v DOJ, HHS, and SSA-Robert II v CIA and DOJ plaintiff surmised that this was a “Glomar Response” answer like the Robert VII v DOJ “Glomar response” used to withhold the “FISC Robert” documents.

On September 5, 2014, AG Holder appointed AAG of the Civil Division Delery to become the Acting Associate AG to replace Associate AG Tony West (2013-2014) who was formally resigning on September 15, 2014. Associate AG West had been the 2009-2012 AAG of the Civil Division supervising Robert II v CIA and DOJ, Robert VIII v DOJ, HHS, and SSA FOIA, and HHS Secretary Kathleen Sebelius (2009-2014) compliance with Judge Sifton’s September 29, 1999 Ford v Shalala, 87 F. Supp 2d 163 (E.D.N.Y. 1999), nationwide class Order that millions of SSI recipients due process rights had been violated. They both knew why AG Holder did not inform the Robert VIII v DOJ, HHS, and SSA Second Circuit of the Article II “FISA secret law” of the Top Secret May 24, 1984 “OLC Olson FISA Memo” and March 18, 2011 reclassified May 6, 2004 “OLC Goldsmith FISA Memo.” See §§ BB, CC below.

On September 5, 2014, AG Holder re-declassified and re-reclassified parts of the March 18, 2011 reclassified May 6, 2004 “OLC Goldsmith FISA Memo.” AAG of the Civil Division Delery knew whether this September 5, 2014 re-reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” cited to the May 24, 1984 Top Secret “OLC Olson FISA Memo.” He knew he had an attorney’s duty to inform the September 2, 2014 ACLU v Clapper panel of this September 5, 2014 re-declassified Article II “FISA secret law” document. See § R below

Acting Associate AG Delery knew that the September 5, 2014 decision to re-reclassify the March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” was a continuation of the decisions of the 1984-2014 AGs not to inform the FISC and the Second Circuit Judges of the May 24, 1984 Top Secret “OLC Olson FISA Memo.” As a result, the Article II “FISA secret law” was not known to Article III Judges because the 1984-2014 AGs had decided to protect the CIA domestic E.O. 12333 “FISA exempt” NSA TSP sources and method in all cases involving the FISA. The AGs did not inform the FISC Judges of CIA Directors “back door” warrantless searches of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ commingled stored content data. The AGs did not inform the Second Circuit Judges of the Top Secret Article II “FISA secret law” in the following cases:

1. AG Willam French Smith in the August 8, 1984 U.S. v Duggan, 743 F.2d 59 (2nd Cir. 1984) decision of Second Circuit Judges Chief Judge Wilfred Feinberg, Walter Mansfield, and Amalya Kearse that held that the FISA as administered by AG Smith was constitutional;

2. AG Reno in the January 12, 2001 Robert v National Archives, 1 Fed. Appx. 85 (2d Cir. 2001), decision of Second Circuit Judges Sonia Sotomayor, Wilfred Feinberg, and Robert Katzmann re the “FBI Agent Allison” documents that revealed whether FBI Director Judge Webster knew of illegal CIA domestic sources and methods both at IMC and at the NSA;

6 3. AG Ashcroft in the January 24, 2002 Robert v DOJ, 2001 WL 34077473 (EDNY), 26 Fed. Appx. 87 (2d Cir. 2002), decision of Second Circuit Court Judges James Oakes, Jon Newman, and Barrington Parker re DOJ documents that revealed the names of DOJ attorneys who knew of the illegal CIA domestic sources and methods at IMC and the NSA;

4. AG Gonzales in the July 11, 2006 Robert VII v DOJ, 2005 U.S. Dist. LEXIS 39616, 193 Fed. Appx. 8 (2d Cir. 2006), cert. den. 127 S.Ct. 1133 (2007), decision of Second Circuit Judges Guido Calabresi, Chester Straub, and Richard Wesley re the CIA domestic “FISC Robert” documents withheld pursuant to the OIPR Counsel James’ Baker’s March 1, 2004 ratification of the CIA’s use of the FOIA exemption 1 and the “Glomar Response” defense;

5. AG Holder in the March 21, 2011 Amnesty v Clapper, 638 F.3d 118 (2d Cir. 2011) decision of Second Circuit Judges Gerard Lynch, Guido Calabresi, and Robert Sack re FISA standing;

6. AG Holder in the September 6, 2011 Robert VIII v DOJ, HHS, and SSA, 439 Fed. Appx 32 (2d Cir. 2011), cert. den. 132 S. Ct. 1549 (2012), decision of Second Circuit Judges Ralph Winter, Joseph McLaughin, and Jose Cabranes re the DOJ-CIA “Robert v Holz” documents that revealed whether HHS General Counsel del Real was CIA Director Casey’s illegal CIA domestic agent when he initiated the “Fraud Against the Government” investigation of Robert and used content data that had been illegally disseminated from the 1982-1985 NSA TSP;

7. AG Holder in the September 21, 2011 Amnesty v Clapper, 667 F.3d 163 (2d Cir. 2011) en banc Second Circuit Judges 6 to 6 decision re FISA standing.

On September 15, 2014, the plaintiff sent Acting Associate AG Delery a copy of his September 15, 2014 FOIA request for the July, 2014 “OLC Riley v California Memo.” He identified the Memo as the latest Article II “FISA secret law” that was not known to Article III Judges including the FISC, the Second Circuit, and the Supreme Court. The plaintiff asserted that this was a connect-the-dots document to the December 3, 2013 FOIA requested May 24, 1984 Top Secret “OLC Olson FISA Memo” and the March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” The plaintiff filed the FOIA request with a 54 page White Paper (WP) in support of the September 15, 2014 request. See §§ W, X below.

On September 15, 2014, the Robert v Holz-Robert v National Archives-Robert v DOJ- Robert VII v DOJ-Robert VIII v DOJ, HHS, and SSA-Robert II v CIA and DOJ plaintiff placed Acting Associate AG Delery on Notice that he has had an April 1, 2009 NYS Rules of Professional Conduct Rule 3.3(a)(3) duty to cure any 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.” Emphasis added. § W.

On September 15, 2014, the plaintiff also placed Acting Associate AG Delery on Notice that USG attorneys have a statutory duty not to deceive Article III Judges based on the NYS Judiciary Law § 487, Misconduct by attorneys, penal standard “1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” Emphasis Added. The plaintiff placed him on Notice of his duty to read the Robert II v CIA and DOJ case file notes and e-mails to learn of any NYS Judiciary Law § 487 violations.

7 B. AG Holder’s September 25, 2014 resignation announcement provides an opportunity for Acting Associate AG Delery to recommend that AG Holder accept the quiet settlement offer and end the DOJ policy of withholding material facts from Article III Judges to protect CIA sources and methods of conducting illegal CIA domestic “special activities”

On September 25, 2014, AG Holder announced his decision to resign after the President Obama’s AG Nominee is confirmed. The plaintiff asserts that Acting Associate AG Delery has a duty to inform AG Holder that he has a last opportunity in this interim period to consider ending DOJ policies that includes defending CIA domestic sources and methods by implementing the Barrett v. United States, 798 F. 2d 565 (2d Cir. 1986), “nonacquiescence” policy of withholding material facts from Article III Judges including the FISC, the Second Circuit, and the Supreme Court in order to protect illegal CIA domestic “sources and methods” prohibited by E.O. 12333. Acting Associate AG Delery has an opportunity to present these issues to AG Holder when recommending that AG Holder consider the Robert II v CIA and DOJ quiet settlement rather than oppose the plaintiff’s Motion for a Summary Judgment and filing an in camera ex parte Declaration that explains why President Obama’s E.O. 12333 Automatic Declassification 25 year standard (1985+25-2010) does not apply to the release of four one-page 1985 CIA classified “North Notebook” documents. See § A above and §§ C, BB, CC below.

On September 25, 2014, President Obama noted AG Holder’s dedication to the DOJ and that he would remain as AG until the President’s new AG was confirmed by the Senate:

But with his typical dedication, Eric has agreed to stay on as Attorney General until I nominate his successor and that successor is confirmed by the Senate. Which means he’ll have a chance to add to a proud career of public service -- one that began nearly 40 years ago as a young prosecutor in the Department that he now runs. Id. Emphasis added. http://www.whitehouse.gov/the-press-office/2014/09/25/statement- president-and-attorney-general-eric-holder

President Obama noted his choice of AG Holder was based on AG Holder’s commitment to the “living and breathing” principle of justice and that “justice” was not an abstract theory:

And I chose him to serve as Attorney General because he believes, as I do, that justice is not just an abstract theory. It’s a living and breathing principle. It’s about how our laws interact with our daily lives. Id.

President Obama noted that AG Holder worked “side by side” with the intelligence community in the “world’s finest judicial system” when there were Article II and Article III decisions that had to be made to protect the nation from terrorists:

He’s worked side by side with our intelligence community and the Department of Homeland Security to keep us safe from terrorist attacks and to counter violent extremism. On his watch, federal courts have successfully prosecuted hundreds of terror cases, proving that the world’s finest justice system is fully capable of delivering justice for the world’s most-wanted terrorists. Id. Emphasis added.

8 On September 25, 2014, after President Obama spoke, AG Holder highlighted the fact that he had a personal friendship with President Obama in good times and in bad times:

I want to thank you, Mr. President, for the opportunity that you gave me to serve and for giving me the greatest honor of my professional life. We have been great colleagues, but the bonds between us are much deeper than that. In good times and in bad, in things personal and in things professional, you have been there for me. I’m proud to call you my friend. Id. Emphasis added.

AG Holder commented on the “greatest judicial system in the world has ever known” during the adjudications of cases involving the national security of the nation:

We have kept faith with our belief in the power of the greatest judicial system the world has ever known to fairly and effectively adjudicate any cases that are brought before it, including those that involve the security of the nation that we both love so dearly. Id. Emphasis added.

AG Holder commented on his love for the DOJ and hope that he has honored the legacy of his predecessors that DOJ “must always be a force for that which is right:”

I have loved the Department of Justice ever since as a young boy I watched Robert Kennedy prove during the Civil Rights Movement how the Department can and must always be a force for that which is right. I hope that I have done honor to the faith that you have placed in me, Mr. President, and to the legacy of all those who have served before me. Id. Emphasis added.

Acting Associate AG Delery knows AG Holder’s legacy will be tarnished if President Obama learns from President Obama’s Privacy and Civil Liberties Oversight Board (PCLOB), and not AG Holder, that CIA Directors have been conducting “back door” warrantless searches of the 1982-2014 E.O.12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. persons’ comingled stored content data that have been transferred into the Utah Data Center. He also knows that if the President is blindsided by the PCLOB, then AG Holder’s friendship with the President will be strained given the Robert VIII v DOJ, HHS, and SSA case file notes and e- mails reveal whether AG Holder knew the “smoking gun” content of the CIA withheld Robert VII v DOJ “FISC Robert” documents. See plaintiff’s 8-12-14 letter to Judge Seybert ¶ 2.

AG Holder’s legacy will be tainted if the PCLOB recommends that the President 1) rescind the May 24, 1984 Top Secret “OLC Olson FISA Memo,” September 5, 2014 re- reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” and July, 2014 Top Secret “OLC Riley v California Memo” and 2) issue a new E.O. that applies the Riley v California unanimous holding that the Fourth Amendment applies to U.S. citizens cell phone, to the 1982- 2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. These are recommendations that AG Holder should be making to President Obama in October, 2014. See plaintiff’s 7-11-14 letter to Judge Seybert re Riley v California.

9 Acting Associate AG Delery knows that the daisy-chain of 1986-2014 AAGs of the Civil Division Richard Willard (1985-1987), John Bolton (1988-1989), Stuart Gerson (1989- 1993), Frank Hunger (1993-1999), David Ogden (1999-2001), Robert Mc Callum (2001-2003), Peter Keisler (2003-2007), Gregory Katsas (2008-2009), Tony West (2009-2012), and AAG Stuart Delery (2002-2004), have all implemented the 1986-2014 Barrett “nonacquiescence” policy of withholding material facts from Article III Judges in order to protect CIA domestic “sources and methods.” This includes the CIA Directors “back door” warrantless searches of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP. “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.” Barrett v. United States, 798 F. 2d 565, 573 (2d Cir. 1986). Emphasis Added. See §§ BB, CC below.

Acting Associate AG Delery knows that the 1985-2014 AAGs of the Civil Division have made their Barrett “nonacquiescence” policy decisions as to the implementation of the Article II “FISA secret law” of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP, based on AAG of the OLC Theodore Olson’s May 24, 1984 Top Secret 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. “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. Acting Associate AG Delery knows that the five PCLOB Members will present President Obama with their recommendations whether the “constitutionally seized” data of U.S. citizens’ commingled stored content data should be subject to Riley v California FISC Ordered warrants. See 10-3-13 Robert Review Group Comments § D. http://snowflake5391.net/review_group_comments.pdf

Acting Associate AG Delery also knows that if AG Holder rescinded the 1984, 2004, and 2014 Top Secret OLC FISA Memos and issued a new “OLC Riley v California” FISA Memo, then there will have to be a public OLC Memo that addresses the issue of the limits on the present Top Secret unlimited Article II Commander in Chief “inherent authority” of the AGs to authorize 1984-2014 DOJ delegatees to approve the 1984-2014 CIA Directors conducting their “back door” warrantless searches without the knowledge of their Presidents. This is the 2014 legacy of “The Bivens Problem” that was explained in AAG of the Civil Division Richard Willard’s March 28, 1986 memo sent” to the AG’s chain of command attorneys and the FBI Director Judge Webster when AG Meese’s DOJ implemented his Top Secret 1985 Mitchell v Forsyth “nonacquiescence” policy. This is “The Bivens Problem” that Acting Associate AG Delery knows he continues to have in 2014. See 10-3-13 Robert Review Group Comments § J.

Acting Associate AG Delery knows that the May 24, 1984 Top Secret “OLC Olson FISA Memo” tracks back another 10 years to the President Gerald Ford’s December 19, 1974 de facto E.O re the President’s delegation to the AG the authority to approve warrantless wiretapping of U.S. citizens. President Ford issued this 1974 de facto E.O. after the Supreme Court’s United States v U.S. District Court (Keith), 407 U.S. 297 (1972), decision. “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. 308. AG Holder has a duty to conduct a post Riley v California review of this December 19, 1974 de facto E.O. that is the basis for CIA Director Brennan’s “back door” warrantless searches, and recommend that President Obama end the AG’s delegated authority. See 10-3-13 Robert Review Group Comments § F.

10 President Ford explained his Top Secret post-Keith policy of delegating to the AG the authority to authorize warrantless wiretapping based on the FBI Director’s recommendation:

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

Acting Associate AG Delery knows that if AG Holder decides to issue a new OLC FISA Memo based on Riley v California Fourth Amendment stored data holding, then he should recommend whether President Obama rescind President Ford’s Top Secret December 19, 1974 de facto E.O. AG Holder should recommend whether President Obama issue a new public E.O. that clearly explains how the Fourth Amendment applies to the 2015 NSA TSP which would be subject to an Article I statutory required FISC order to search the 1982-2014 E.O. 12333 data sets for information from U.S. citizens’ commingled stored content data that has been transferred into the Utah Data Center or is in the custody of any IC community agency including the CIA.

Acting Associate AG Delery knows that AG Holder could gracefully sua sponte make the decision that the Riley v California Fourth Amendment stored data holding applies to the Intelligence community‘s “constitutionally seized” data because this stored content data would be subject to E.O. 12333 IC “minimization” standards that would no longer be “FISA exempt.” The AG would determine that this “constitutionally seized” data is subject to a FISC Order whenever there is an IC search of U.S. citizens’ stored content data. This includes a search for data that is subsequently information-shared with CIA analysts for foreign intelligence purposes. However, Acting Associate AG Delery knows that to effectuate this Fourth Amendment Riley v California policy, AG Holder would have to rescind the May 24, 1984 Top Secret “OLC Olson FISA Memo,” the September 5, 2014 re-reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” and the July, 2014 Top Secret “OLC Riley v California Memo.”

Acting Associate AG Delery should also be recommending whether AG Holder should end the Barrett “nonacquiescence” policy of DOJ attorneys withholding material facts from Article III Judges. He could establish public AG Guidelines as to how the procedures of the criminal Classified Information Procedure Act (CIPA), are also applied in Article III civil cases. This would allow the Article III Judges to conduct in camera ex parte review of the documents with national security secrets. This would end the 1986-2014 AAGs of the Civil Division “wink and a nod” policy of knowing that DOJ attorneys have breached their Pavelic & Le Fore v Marvel Entertainment Group, 110 S. Ct. 456 (1989) FRCP 11 due diligence signing duties. “The message there by conveyed to the attorney, that this is not a “team effort” but in the last analysis yours alone, precisely to the point of Rule 11.” Id. 459. Emphasis Added. See §§ O, P below.

11 Acting Associate AG Delery knows that AG Holder now has an opportunity to provide President Obama with a recommendation that President Obama issue a new E.O. 12333 that clarifies the President’s Article II Commander in Chief “inherent authority” to conduct surveillance of U.S. citizens by filing a § 413 b) of the National Security Act “corrective action” plan that cures illegal intelligence community activities of the CIA Directors conducting “back door” warrantless searches of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP data sets. That § 413 (b) “corrective action” Plan could include an E.O. that replaces President Ford’s December 19, 1974 Memo and a new “OLC Riley v California Memo.”

Acting Associate AG Delery also know that President Obama’s § 413 (b) of the National Security Act “corrective action” plan could also cure the collateral damage caused by the 1982- 1985 Jackson v Schweiker “nonacquiescence” policy decisions of HHS General Counsel del Real. Acting Associate AG Delery knows from reading the “Peter Keisler Collection” documents whether HHS General del Real (1981-1985) and IMC Chief of Staff del Real (1985- 1986) was an illegal CIA domestic agent who used unaudited HHS funds to pay for illegal CIA domestic “special activities.” He will learn whether CIA Directors had used HHS funds to pay for the 1982-2014 “immaculate construction” and maintenance of the E.O. 12333 Top Secret “FISA exempt” NSA TSP which was not funded with OMB classified funds. See 6-25-14 NARA WP §§ B-D. http://snowflake5391.net/6_25_14_NARA_Final.pdf, and § C below.

Acting Associate AG Delery also knows the answer to the embarrassing how-could-this- have-ever-happened question as to why AG Holder (2009-2014) did not end the 1982-2014 Jackson and 1999-2014 Ford v Shalala, 87 F. Supp 2d 163 (E.D.N.Y. 1999),“nonacquiescence” policies. He knows whether those “nonacquiescence” policies were implemented to protect the CIA sources and methods of the diversion Congressionally appropriated unaudited HHS funds to pay for E.O. 12333 illegal CIA domestic “special activities.” Acting Associate AG Delery knows from reading the Robert I v CIA and Ford v Shalala case file notes and e-mails, why AG Reno’s DAG Holder (1997-2001) made the 2000 Second Circuit Ford v Shalala decision not to prefect EDNY U.S. Attorney Lynch’s Ford v Shalala Notice of Appeal. See 10-25-11 OLC Seitz WP §§ I, X, http://snowflake5391.net/10_25%20_11_WPSeitz.pdf, and § CC below.

Acting Associate AG Delery knows whether AG Holder knows that during President Obama’s 2009-2014 Constitutional watch, the due process and equal protection rights of millions of 1994-2014 Ford v Shalala nationwide class members benefits continued to be denied. He knows why AAG of the Civil Division West (2009-2012) took no action to comply with Judge Sifton’s September 29, 1999 Ford v Shalala class order. He knows who ordered him as AAG of the Civil Division to make the decision to continue to implement the Jackson v Schweiker and Ford v Shalala policies without informing AG Holder. He knows whether this was an order to provide AG Holder with a “plausible deniability” defense to the allegation that AG Holder has “defrauded” President Obama re illegal CIA domestic “special activities” as AG Meese had “defrauded” President Reagan. See 12-14-11 Robert II v CIA and DOJ Status Affidavit § C.

Finally, Acting Associate AG Delery knows that soon-to-be-former AG Holder’s relationship with President Obama will be strained if President Obama first learns from the PCLOB that the Robert VII v DOJ plaintiff’s almost incredible allegation is true: The 2009-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP has been illegally funded with Ford v Shalala “nonacquiescence” policy funds without AG Holder’s and President Obama’s knowledge.

12 C. CIA General Counsel Krass’ August 11, 2014 decision not to file a Robert II v CIA and DOJ Counter Statement was a decision to defend the E.O. 12333 CIA domestic “sources and methods” of implementing a Marbury v Madison “nonacquiescence” policy based on the Top Secret Article II “secret law” not known to Article III Judges

The plaintiff asserts that Associate AG Delery knows the Robert II v CIA and DOJ Motion for a Summary Judgment will be a test of whether one of the E.O. 12333 illegal CIA domestic “sources and methods” continues to be the implementation of a Marbury v Madison “nonacquiescence” policy. This policy stands the Marbury v Madison separation of powers holding on its head. Acting Associate AG Delery knows that he continues to defend the 1984- 2014 E.O. 12333 Top Secret Article II “secret law ” that is not known to Article III Judges. He knows the Constitutional danger of this 2014 Article II “secret law” that was explained in former-NARA Information Security Oversight Office (ISSO) Director J. William Leonard’s April 30, 2008 testimony to the Senate Judiciary Committee re the Secret Law and the Threat to Democratic and Accountable Government. ´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. http://judiciary.senate.gov/hearing.cfm?id=3305.

The Marbury v Madison, 5 U.S. 1 (Cranch) 137 (1803) separation of powers holding addressed the issue of whether the Article II President or the Article III Judiciary determines “what the law is” that the Article I Congress enacted:

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.

Acting Associate AG Delery knows that he is implementing a Marbury v Madison “nonacquiescence” policy in the pending Second Circuit ACLU v Clapper. AAG of the Civil Division Delery knew on September 2, 2014 when he made his oral argument, that the Second Circuit would be deciding the constitutionality of the metadata program without knowing the Top Secret Article II “FISA secret law” that is explained in the May 24, 1984 Top “Secret “OLC Olson FISA Memo”, the March 18, 2011 reclassified Top Secret May 6, 2004 “OLC Goldsmith FISA Memo,” and the July, 2014 “OLC Riley v California Memo.” He knew that Acting AAG of the OLC Thompson had already decided “what the FISA law is.” He knew that the Second Circuit did not even know the Top Secret 1984-2014 Article II “FISA secret law” that he knew tracks back to President Ford’s December 19, 1974 Top Secret de facto E.O. See §§ A, B above.

Former-NARA ISSO Director Leonard astutely framed the “secret law” issue in his testimony to the Senate Judiciary Committee at its April 30, 2008 Secret Law and the Threat to Democratic and Accountable Government hearing:

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.

13 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. Acting Associate AG Delery knows that the September 5, 2014 re-reclassification of the March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” is a “smoking gun” example of “the ultimate recipe for unchecked executive power.” It does not matter what the Second Circuit decides in ACLU v Clapper because CIA General Counsel Krass will apply AAG of the OLC Olson’s May 24, 1984 Top Secret OLC Memo “Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1979” as the legal basis for CIA Director Brennan’s 2015 “back door” warrantless searches of the 1982-2014 E.O. 12333 Top Secret “FISA exempt NSA TSP “haystacks” of U.S. citizens’ commingled stored content data sets. “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.

Acting Associate AG Delery knows that AG Holder knows that President Obama, a former-Constitutional Law Professor, would end the Marbury v Madison “nonacquiescence” policy if he knew the Article II “FISA secret law” was explained in the July, 2014 “OLC Riley v California Memo.” He knows that if President Obama knew this OLC Memo cited to the May 24, 1984 Top Secret “OLC Olson FISA Memo,” then he would order AG Holder to rescind the 1) the May 24, 1984 “OLC Olson FISA Memo,” 2) the September 5, 2014 re-reclassified May 6, 2004 “OLC Goldsmith FISA Memo,” and 3) the July, 2014 “OLC Riley v California Memo.”

Thus, if Acting Associate AG Delery is making his “Marbury v Madison” nonacquiescence” policy decisions without AG Holder’s knowledge, then his “command and control” officer in Robert II v CIA and DOJ is CIA Director Brennan and not AG Holder. If so, then the Robert II v CIA and DOJ Summary Judgment Motion is a test case as to the release of CIA documents that prove whether CIA Director Casey had conducted illegal CIA domestic “special activities.” If so, then President Obama will have a § 413 (b) of the National Security Act “shall” duty to file with the Congress a “corrective action” plan to cure the illegal intelligence activity of CIA Director Casey at IMC and at the NSA “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. 50 U.S.C. § 413 (b). Emphasis Added. See §§ AA, BB, and CC below.

14 Acting Associate AG Delery knows that DOJ’s case file notes and e-mails in the 1985- 2014 Robert FOIA actions reveal whether the 1982-2014 AAGs of the Civil Division who supervised the 1985-2014 Robert FOIA litigation, intended to make the 1985-2014 Judges in the 1985-2014 Robert FOIA actions, including the Second Circuit and the Supreme Court, the “handmaidens” of the 1985-2014 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-). “Under no circumstances should the Judiciary become the handmaiden of the Executive.” Doe, et. al. v Mukasey, Mueller, and Caproni, 549 F 3d 861, 870 (2d Cir. 2008). Emphasis added.

Acting Associate AG Delery knows whether the AAGs of the Civil Division AGs in Robert DOJ FOIA cases involving illegal CIA domestic “special activities,” had the autonomy to make decisions re the FOIA requested documents without the knowledge of their AGs. If so, then he knew that this DOJ policy and practice was to provide the AGs with a “plausible deniability” defense to knowing the “smoking gun” admissions in the “FISC Robert” documents withheld pursuant to the CIA’s use of FOIA exemption 1 and the “Glomar Response” defense of CIA warrantless searches of the E.O. 12333 “FISA exempt NSA TSP data sets. This included AG Holder’s “plausible deniability” defense to the AG’s withholding of the Top Secret 1984, 2004, and 2014 FISA OLC Memos from the 2014 FISC and FISC-R Judges. See § Z below.

The plaintiff asserts that determining whether a 2014 Marbury v Madison “nonacquiescence” policy exists, can be made by a review of the March 20, 2013 City of Arlington v FCC, 133 S. Ct. 1863 (2013), “foxes-in-the-hen-house” sparring between Justice Antonin Scalia’s majority opinion and Chief Justice John Roberts’ dissent. Justice Scalia applied a straight forward Chevron deference standard to the plain reading of that 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. Emphasis added. Chief Justice Roberts cites to the overriding importance of Marbury v Madison that it is the Judiciary that decides what the law “is” and not the Executive. “The rise of the modern administrative state has not changed that duty.” Id.1880. Emphasis added. The plaintiff asserts Acting Associate AG Delery and Acting AAG of the OLC Thompson are the July, 2014 “foxes in the henhouse” who made the decisions as to what the FISA law “is” after Riley v California, and not the Judiciary. They are the “foxes” in ACLU v Clapper. See the 12-3-13 OLC WP §§ O, P. http://snowflake5391.net/12_3_13_FISA_MEMOS.pdf.

Acting Associate AG Delery knows that if President Obama consults with his 2014 AG Nominee as to whether Acting Associate AG Delery should be President Obama’s Nominee for Associate AG, then White House Counsel W. Neil Eggleston may ask Acting Associate AG Delery for an update on key issues including the “fox in the henhouse” issue in ACLU v Clapper. Therefore, Acting Associate AG Delery’s should be conducting his due diligence review of Robert II v CIA and DOJ case file notes and e-mails when deciding the legal basis for the opposition to plaintiff’s October 7, 2014 Summary Judgment Motion letter. This may be his last opportunity to reverse his post-Snowden leak decisions as AAG of the Civil Division to reject plaintiff’s quiet settlement offer that would have ended the Robert II v CIA and DOJ litigation seeking to prove the “Past is Prologue” fact of whether the 1987-2014 FBI Directors knew that AG Meese and CIA Director Casey had “defrauded” President Reagan.

15 D. DNI Director Clapper’s August 11, 2014 posting on the DNI website of newly declassified documents re the metadata program that reveal to the public that the FISC was not informed of the “FISA secret law” of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP that is based on May 24, 1984 Top Secret “OLC Olson FISA Memo”

On August 11, 2014, DNI Clapper posted on the DNI website On the Record, a report to the public on the “Newly Declassified Documents Regarding the Now-Discontinued NSA Bulk Electronic Communications Metadata Pursuant to Section 402 of the Foreign Intelligence Surveillance Act.” The Robert II v CIA and DOJ plaintiff did not cite to these documents in his August 12, 2014 status letter filed with Judge Seybert because the plaintiff was not aware of these DNI documents when he drafted that letter. See plaintiff’s 8-12-14 monthly status letter.

DNI Clapper posted 38 declassified documents “relating to the now-discontinued NSA program to collect bulk electronic communications metadata pursuant to Section 402 of the FISA (“PRTT provision”).” DNI Clapper did not discuss or post any documents re the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data sets transferred into the Utah Data Center. The plaintiff notes how sensitive these 38 declassified Top Secret FISC documents are when compared to the four one-page 1985 CIA classified “North Notebook” documents subject to President Obama’s President Obama’s January 21, 2009 E.O. 13526, § 3.3 Automatic Declassification 25 year rule. The plaintiff asserts that this is an example of the Intelligence Community’s cherry-picking of the declassification of FOIA requested national security documents.

DNI Clapper explained the USG’s voluntary discontinuance of the metadata program:

After the 2009 discovery of certain compliance issues associated with NSA’s electronic communications and telephony bulk metadata collection programs, the Government took measures to strengthen compliance and oversight. More information on NSA’s enhanced compliance mechanisms can be found in the November 18, 2013, release.

As previously stated, this Internet communications metadata bulk collection program has been discontinued. The Intelligence Community regularly assesses the continuing operational value of all of its collection programs. In 2011, the Director of NSA called for an examination of this program to assess its continuing value as a unique source of foreign intelligence information. This examination revealed that the program was no longer meeting NSA’s operational expectations. Accordingly, after careful deliberation, the Government discontinued the program, and the metadata collected pursuant to this program has been purged.

In addition, the DOJ also released four documents that do not directly relate to bulk collection under the PRTT provision but are responsive to EPIC’s FOIA request. Like the documents relating to the bulk collection, these documents demonstrate the FISC’s judicial oversight of PRTT collection under the FISA. Id. Emphasis added. http://icontherecord.tumblr.com/

16 This was a “careful deliberation” decision of DNI Clapper, the 1991-1995 DIA Director. He knew whether he had included in his July 17, 2014 PPD-28, Signals Intelligence Activities, Report to President Obama re the Section 4. Safeguarding Personal Information Collected Through Signals Intelligence, a recommendation as to the storage of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data sets. DNI Clapper knows whether his “careful deliberation” decision included his reliance on Acting AAG of the OLC Thompson’s July, 2014 “OLC Riley v California Memo.” Acting Associate AG Delery knows whether DNI Clapper’s PPD-28 Report cited to Acting AAG of the OLC Thompson’s “OLC Riley v California Memo.” See 5-1-14 letter to Judge Seybert ¶ 8.

The August 11, 2011 documents that DNI Clapper posted on IC on the Record, is a mosaic of documents that reveal how the metadata program was developed and presented to the FISC in order to secure the 2004-2014 FISC Orders authorizing the metadata program. Many of these documents are heavily redacted. However, Acting Associate AG Delery knows whether the redacted declassified documents that DNI Clapper posted on ICI on the Record, corroborate the plaintiff’s almost incredible allegation that the Robert VII v DOJ plaintiff had been the 1980s target of the E.O. 12333 Top Secret NSA TSP and that this fact was withheld from the Second Circuit and the Supreme Court. See 11-30-11 Robert VIII Petition Statement of the Case § H.

The plaintiff lists some of DNI Director Clapper’s declassified documents in order to support the plaintiff’s allegation that Acting Associate AG Delery and CIA General Counsel Krass know the four 1985 CIA classified “North Notebook” documents are connect-the-dots documents with the Robert VII v DOJ “FISC Robert” documents that were withheld pursuant to CIA Director Tenet’s CIA FOIA Officer’s decision to use FOIA Exemption 1 and the “Glomar Response” defense. These 2014 redacted DNI declassified documents reveal facts that reveal whether USG attorneys intended to file Robert II v CIA and DOJ in camera ex parte Declarations that withheld material Robert CIA facts for the purpose of deceiving Magistrate Judge Lindsay re illegal CIA domestic “special activities” in facial violation of E.O. 12333 CIA prohibitions.

1. The 2004 Top secret “Application for Pen Register/Trap and Trace Device for Foreign Intelligence Purposes,” of AG Ashcroft and OIPR Counsel Baker, FRCP 11 signed by AG Ashcroft. http://www.dni.gov/files/0808/Final%20051.Application%20for%20pen%20register- trap%20and%20trace%20devices%20for%20foreign%20intelligence%20purposes.pdf

Acting Associate AG Delery knows the redacted date that AG Ashcroft signed this FISC Application. This is a “smoking gun” date because he knows why on March 1, 2004 then-OIPR Counsel James Baker (1996-2006) ratified CIA Director Tenet’s FOIA Officer’s use of FOIA exemption 1 and the “Glomar Response” defense to withhold the Robert II v CIA and DOJ plaintiff’s February 17, 2004 FOIA requested “FISC Robert” documents. He knows that FBI General Counsel Baker (2014-) knows with 20/20 hindsight the significance of this 2004 FISC application for a metadata Order. He knew why AG Ashcroft did not inform the FISC that CIA Directors had conducted “back door” warrantless data mining of the 1982-2004 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data sets. OIPR Counsel Baker knew this fact on March 1, 2004 when he read the 1980s “FISC Robert” documents. On behalf of AG Ashcroft, he ratified the CIA decision to withhold these documents pursuant to the “Glomar Response” defense. See AG Ashcroft’s OIPR Counsel Baker’s October 1, 2004 “corrected” Declaration. http://www.snowflake5391.net/baker.pdf.

17 Acting Associate AG Delery and CIA General Counsel Krass both know whether OIPR Counsel Baker had informed then-DAG James Comey (2003-2005) of his March 1, 2004 knowledge of the 1982-2004 CIA Directors “back door” 1982-2004 E.O. 12333 Top Secret “FISA exempt” CIA warrantless searches of U.S. citizens’ comingled stored content data prior to the infamous March 10, 2004 confrontation between then-WH Counsel Gonzales and DAG Comey and FBI Director Mueller in AG Ashcroft’s hospital room. They know this fact has “Past is Prologue” significance because FBI Director Comey (2013-) chose former-OIPR Counsel Baker (1996-2006) to be his trusted FBI General Counsel. See 2-10-14 letter to Judge Seybert ¶ 2.

Acting Associate AG Delery knows that FBI General Counsel Baker knows why FBI Director Comey’s Chief FOIA Officer David Hardy did not docket plaintiff’s February 7, 2014 de novo FBI FOIA request for the eight sets of FBI documents that reveal whether FBI Director Judge Webster knew that CIA Director Casey was conducting illegal CIA domestic “special activities. http://snowflake5391.net/2_7_14_FBI_FOIA_request.pdf. These FBI documents are also connect-the-dots documents with the “Application for Pen Register/Trap and Trace Device for Foreign Intelligence Purposes” documents because they reveal facts OIPR Counsel Baker did not provide the FISC regarding the CIA Directors’ CIA domestic “special activity” of the “back door” warrantless searches of the 1982-2004 E.O. 12333 “FISA exempt” NSA TSP data sets:

Re: FOIA request No. 1151829-000 1) FBI Abshire documents-third request 2) FBI copy of joint FBI-DOJ-HHS “IMC Final Investigative Report” 3) FBI copy of February 25, 1987 “Perot” documents 4) FBI copy of Robert v National Archives “FBI Agent Allison” documents 5) FBI unredacted copy of Robert v DOJ “62-0 file” documents 6) FBI Robert III v DOJ “Recarey extradition” documents 7) FBI Robert VII v DOJ “FISC Robert” documents 8) FBI Charles Robert documents including NSLs sent to banks and ISP

The plaintiff further asserts that the Top Secret 2004 “Application for Pen Register/Trap and Trace Device for Foreign Intelligence Purposes” of AG Ashcroft and OIPR Counsel Baker is a connect-the-dots document to any Robert II v CIA and DOJ in camera ex parte Declarations filed by CIA General Counsel Muller (2002-2004) with Magistrate Judge Arlene Lindsay upon which she based her April 9, 2004 “Report and Recommendation of Magistrate Judge Arlene R. Lindsay” that was submitted to Judge Seybert. The plaintiff asserts that if any co-defendants’ 2004 Robert II v CIA and DOJ in camera ex parte Declarations were filed, then those in camera ex parte Declarations reveal whether USG attorneys had withheld material facts from Magistrate Judge Lindsay in order to deceive Magistrate Judge Lindsay given OIPR Counsel Baker’s October 1, 2004 Robert VII v DOJ “corrected” Declaration explaining the CIA’s use of FOIA Exemption 1 and the “Glomar Response” to withhold the “FISC Robert” documents. The plaintiff is asserting that Acting Associate AG Delery knows from reading OIPR Counsel Baker’s Top Secret 2004 “Application for Pen Register/Trap and Trace Device for Foreign Intelligence Purposes” and any 2004 in camera ex parte Robert II v CIA and DOJ Declarations filed with Magistrate Judge Lindsay, whether FBI General Counsel Baker knows false facts had been provided to Magistrate Judge Lindsay. If so, then Acting Associate AG Delery should be reevaluating his prior rejection of the plaintiff’s quiet settlement offer.

18 2. The 2004 Top Secret 62 page “Memorandum of Law and Fact in Support of Application for Pen Registers and Trap and Trace Devices for Foreign Intelligence Purposes,” FRCP 11 signed by AG Ashcroft, DAG Comey, AAG of the OLC Goldsmith, and OIPR Counsel Baker. http://www.dni.gov/files/0808/Final%20056.Memorandum%20of%20Law%20and%20Fact%20in %20Support%20of%20Application%20for%20Pen%20Registers%20and%20Trap%20and%20Tr ace%20Devices%20for%20Foreign%20I~1.pdf

Acting Associate AG Delery and CIA General Counsel Krass both know whether this redacted 2004 FISC Memo of Law was signed after AG of the OLC Goldsmith had sent AG Ashcroft his May 6, 2004 Top Secret “Memorandum for the Attorney General from Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, Re: Review of the Legality of the STELLAR WIND Program. (May 6, 2004).” This is the September 5, 2014 re-reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” that had first been declassified and reclassified on March 18, 2011. The plaintiff asserts that both Acting Associate AG Delery and CIA General Counsel Krass know whether this DNI declassified redacted 2004 FISC Memo is “smoking gun” evidence of the deception of the FISC when read along with the unredacted September 5, 2014 re-reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” that AAG of the Civil Division Delery withheld on September 2, 2014 from the ACLU v Clapper panel.http://www.justice.gov/sites/default/files/pages/attachments/2014/09/19/may_6_2004_golds mith_opinion.pdf. See also Robert II v CIA and DOJ plaintiff’s 12-3-13 OLC FOIA WP §§ B-F, M-X. http://snowflake5391.net/12_3_13_FISA_MEMOS.pdf, and § Z below.

Acting Associate AG Delery and CIA General Counsel Krass both know whether in this DOJ redacted 2004 FISC Memo of Law, DOJ attorneys had informed the FISC of the Article II “FISA secret law” that is explained in the Top Secret May 24, 1984, AAG of the OLC Top Secret Memo that Theodore Olson had 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. “Traditional Fourth Amendment analysis holds that once evidence is constitutionally seized, its dissemination or subsequent use raises no additional Fourth Amendment question.” See 10-3-13 Robert Review Group Comments § D http://snowflake5391.net/review_group_comments.pdf. CIA General Counsel Krass, the 2013- 2014 Acting AAG of the OLC, knows that the Article II “FISA secret law” issues had been presented to her predecessor CIA General Counsel Stephen Preston (2009-2013). See 10-30-13 Preston WP §§ B-P. http://snowflake5391.net/10_30_2013_13_WP_Preston.pdf.

The plaintiff has cited to the 10-30-13 WP mail served on CIA General Counsel Stephen Preston’s because he is DOD Secretary Chuck Hagel’s 2014 DOD General Counsel. This is an important fact because of the December 14, 2005 letter that then-Senators Barak Obama and Chuck Hagel sent to the other Senators seeking their opposition to cloture re the reauthorization of Patriot Act. http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB436/docs/EBB-010.pdf. This December 14, 2005 letter was sent without any of the 100 Senators knowing that NSA Director General Alexander (2005-) was conducting “back door” warrantless searches of 1982-2005 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. He applied the Article II “minimization” standards of DOD Secretary Weinberger’s December 3, 1982 Mastercopy DOD 5240 1 R “Procedures Governing the Activities of DOD Intelligence Components That Affect United States Persons” that were not subject to any FISC Orders. See 10-3-13 Robert Review Group Comments §§ C, D, K.

19 3. The August 11, 2014 declassified “April 27, 2005 Testimony of Attorney General and Director, FBI Before the Senate Select Committee on Intelligence” http://www.dni.gov/files/0808/Final%20069.April%2027%202005%20Testimony%20of%20the %20Attorney%20General%20and%20Director,%20FBI%20before%20the%20Senate%20Select% 20Committee%20on%20Intelli~1.pdf

Acting Associate AG Delery and CIA General Counsel Krass both know the August 11, 2014 legal significance of DNI Clapper’s declassification of the April 27, 2005 SSIC testimony of AG Gonzales and FBI Director Mueller. They provided the SSIC Notification of the 2004 FISC approved metadata program. However, they did not inform the SSIC of the 1982-2005 CIA Directors 1982-1995 “back door” warrantless searches of 1982-2005 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ co-mingled stored content data.

AG Gonzales and FBI Director Mueller presented their April 27, 2005 classified SSIC testimony knowing that the SSIC Members did not know about the Article II “FISA secret law” of the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” Upon information and belief, OIPR Counsel Baker had informed FBI Director Mueller of March 1, 2004 facts he had learned from reading the FOIA requested “FISC Robert” document. He knew whether FBI Director Judge Webster (1978-1987) knew that CIA Director Casey was conducting “back door” warrantless searches of the 1982-1985 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ co-mingled stored content data, and did not notify the Article I SSIC or Article III FISC Court. See § BB below.

AG Gonzales and FBI Director Mueller informed the SSIC of the importance of reauthorizing the 2004 USA PATRIOT ACT to complement the FISA of 1978:

In enacting the USA PATRIOT Act, the Intelligence Authorization Act for Fiscal Year 02, and the Intelligence Reform and Terrorism Prevention Act of 2004, Congress provided the Government with the vital tools that it has used regularly and effectively in its war on terrorism. The forms contained in those measures affect every single application made by the Department for electronic surveillance or physical search of suspected terrorists and have enabled the government become quicker and more flexible in gathering critical intelligence information on suspected terrorists. It is because of the key importance of these tools to the war on terror that we ask you reauthorize the provisions of the USA Patriot Act scheduled to expire at the end of this year. Id. 1. Emphasis added.

Acting Associate AG Delery and CIA General Counsel Krass know why AG Gonzales and FBI Director Mueller did not inform the SSIC of the Top Secret AAG of the OLC Theodore Olson 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. “Traditional Fourth Amendment analysis holds that once evidence is constitutionally seized, its dissemination or subsequent use raises no additional Fourth Amendment question.” They knew the SSIC Members did not know that 1984-2005 AGs had ratified AAG of the OLC Olson’s May 24, 1984 determination that the “exclusivity provision” of the FISA was an “unconstitutional” encroachment on the President’s Article II authority.

20 AG Gonzales and FBI Director Mueller provided the SSIC with an historical perspective of the FISA of 1978 without discussing the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” that reaffirmed the “unconstitutionality” of the “exclusivity provision” of the FISA:

Since its inception, FISA has permitted electronic surveillance of an individual who is an agent of foreign power based upon his status as a non-United States person who acts in the United States as “an officer or employee of a foreign power,” or as a member” of an international terrorist group. As originally enacted, FISA permitted electronic surveillance of such targets for initial periods of 90 days, with extensions for additional periods of up to 90 days based upon subsequent applications by the government. In addition, FISA originally allowed the government to conduct physical searches of an agent of a foreign power (including United States persons) for initial periods of 45 days, with extensions for additional 45-day periods. Id. Emphasis added. Id. 3. Emphasis added.

This is remarkable April 27, 2005 testimony because the SSIC Members did not then know of the infamous March 10, 2004 confrontation between then-WH Counsel Gonzales and AG Ashcroft, DAG Comey and FBI Director Mueller in AG Ashcroft’s hospital room. However, on April 27, 2005, OIPR Counsel Baker knew whether FBI Director Mueller (2001-2013) had known that on March 1, 2004, prior to the March 10, 2004 confrontation, OIPR Counsel Baker had known from reading the CIA classified “FISC Robert” documents whether: 1) FBI Director Judge Webster knew that the 1985 Robert v Holz plaintiff had been the target of CIA Director Casey’s analysts’ warrantless searches of the content of Robert’s calls with his clients, and 2) there was zero evidence that Robert was a terrorist or an agent of a foreign power.

The Robert II v CIA and DOJ plaintiff cites to this April 27, 2005 SSIC testimony of AG Gonzales because in October, 2005 AG Gonzales would file an in camera ex parte Robert VIII v DOJ, HHS, and SSA Declaration with Judge Garaufis in support of his Motion that Judge Garaufis enjoin Robert from filing any FOIA requests without Judge Garaufis issuing a pre- clearance Order. Upon information and belief, AG Gonzales intentionally did not inform Judge Garaufis: 1) Robert had been the target of the 1982-1988 E.O. 12333 Top Secret “FISA exempt” NSA TSP, and 2) that FBI Director Judge Webster (1978-1987) had known that CIA Director Casey’s analysts had conducted “back door” warrantless searches of Robert’s telephone calls with his aged, blind, and disabled clients challenging the “nonacquiescence” policy of HHS General Counsel del Real, a CIA domestic agent. On December 9, 2005, Judge Garaufis granted AG Gonzales’ Robert VIII v DOJ, HHS, and SSA in camera ex parte October, 2005 Motion.

AG Gonzales and FBI Director Mueller’s April 27, 2005 SSI testimony was prior to the Second Circuit’s Robert VII v DOJ March 9, 2006 Order with its teed up question whether Robert was a FISA “aggrieved person” by application of 50 U.S.C. § 1806 (f) to Robert facts. This testimony was also prior to EDNY AUSA Kathleen Mahoney filing her April 3, 2006 letter- Brief on behalf of AG Gonzales that the plaintiff was not an aggrieved person. http://www.snowflake5391.net/RobertvDOJbrief.pdf. Acting Associate AG Delery knows the DNI declassified April 27, 2005 testimony is not consistent with AG Gonzales’ pleadings filed in Robert VII v DOJ. Therefore, he should reconsider plaintiff’s quiet settlement offer.

21 4. The Secret 38 page September 25, 2006 Memorandum of Law in Response to FISC Order by Office of Intelligence Policy (OIP) FRCP 11 signed and classified by James Baker http://www.dni.gov/files/0808/Final%20079.Memorandum%20of%20Law%20in%20Response %20to%20FISC%20Order.pdf

Acting Associate AG Delery and CIA General Counsel Krass both know that FBI General Counsel Baker (2014-) knows whether this September 25, 2006 DNI redacted Secret document contains E.O. 12333 “FISA exempt” NSA TSP facts that were not provided to the Second Circuit in Robert VII v DOJ pursuant to the Second Circuit’s March 9, 2006 Robert VII v DOJ Order with its teed up question whether Robert was a FISA “aggrieved person.” Acting Associate AG Delery knows from reading the Robert VII v DOJ case file notes and e-mails, what Robert facts were intentionally withheld from the Second Circuit in EDNY AUSA Kathleen Mahoney’s April 3, 2006 Robert VII v DOJ FRCP 11 signed letter-Brief filed on behalf of AG Gonzales, AAG of the Civil Division Peter Keisler (2003-2007), and OIPR Counsel Baker (1996-2006). http://www.snowflake5391.net/RobertvDOJbrief.pdf. See the discussion of the Robert VII v DOJ March 9, 2006 Order in the 11-30-11 Robert VIII v DOJ, HHS, and SSA petition for a writ of certiorari at pp.13-14. http://snowflake5391.net/Robert8vDOJpetition1.pdf

Acting Associate AG Delery and CIA General Counsel Krass both know whether the Robert VII v DOJ case file notes and e-mails reveal why AAG of the Civil Division Keisler’s DAAG did not sign the April 3, 2006 Second Circuit letter-Brief. He assigned that task to EDNY AUSA Mahoney who was also the DOJ’s Ford v Shalala lead counsel. AAG of the Civil Division Keisler knew that EDNY AUSA Mahoney did not have Top Secret clearance to know whether plaintiff Robert had been the target of the E.O. 12333 Top Secret “FISA exempt” NSA TSP or whether HHS General Counsel del Real was CIA Director Casey’s CIA domestic agent when in December, 1984 he initiated the “Fraud Against the Government” investigation of Robert. AAG of the Civil Division Keisler knew why HHS General Counsel del Real had sought the 1980s incarceration and disbarment of the Ruppert v Schweiker lead counsel challenging HHS General Counsel del Real’s 1982-1985 “Jackson “nonacquiescence” policy” that continued to be conducted in 2006 as applied to the Ford v Shalala nationwide class. See §§ CC below.

Acting Associate AG Delery and CIA General Counsel Krass both know that AAG of the Civil Division Keisler knew that because AUSA Mahoney lacked Top Secret clearance, it was impossible for EDNY AUSA Mahoney to fulfill her Pavelic & Le Fore v Marvel Entertainment Group, 110 S. Ct. 456 (1989), “this is not a team effort” FRCP 11 due diligence duty to read the “FISC Robert” documents before she FRCP 11 signed the April 3, 2006 Robert VII v DOJ letter-Brief. “The message there by conveyed to the attorney, that this is not a “team effort” but in the last analysis yours alone, precisely to the point of Rule 11.” Id. 459. Emphasis added.

Acting Associate AG Delery and CIA General Counsel Krass both know that AAG of the Civil Division Keisler (2003-2007) was from 1986 to 1988 an Assistant WH Counsel and then Associate WH Counsel for President Reagan. They know why the plaintiff’s June 25, 2014 appeal to NARA Deputy Archivist Debra Wall of the June 2, 2014 decision of the President Ronald Reagan Library Archivist FOIA Officer Shelly Williams’ decision to deny the FOIA request for the “Peter Keisler Collection” documents continues not to be docketed. Acting Associate AG Delery knows whether AG Holder and WH Counsel Eggleston have already ratified the 2008-2014 executive privilege assertions. See 8-12-14 letter to Judge Seybert ¶ 16.

22 5. The Top Secret 2009 “Application for Use of Pen Register/Trap and Trace Devices for Foreign Intelligence Purposes” FRCP 11 signed by Acting AAG of NSD Matthew Olsen. http://www.dni.gov/files/0808/Final%20059.Application%20for%20use%20of%20pen%20regist er-trap%20and%20trace%20devices%20for%20foreign%20intelligence%20purposes.pdf

Acting Associate AG Delery and CIA General Counsel Krass both know that 2009 Acting AAG of the National Security Division (NSD) Matthew Olsen knew when he FRCP 11 signed the 2009 “Application for Use of Pen Register/Trap and Trace Devices for Foreign Intelligence Purposes” on behalf of AG Holder, whether NSA Director General Keith Alexander (2005-2014), was conducting “back door” warrantless searches of the 1982-2009 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. They know that Acting AAG the NSD Olsen had been the 2004-2005 Special Counsel for FBI Director Mueller when OIPR Counsel Baker had filed his FRCP 11 signed October 1, 2004 “corrected” Robert VII v DOJ Declaration. They know that he was 2006-2008 DAAG in the NSD when AG Ashcroft’s DOJ attorneys filed FRCP 11 signed pleadings in Robert VII v DOJ and withheld from Judge Garaufis and the Second Circuit the “smoking gun” material fact that the plaintiff was the NSA and CIA domestic target of 1980s E.O. 12333 Top Secret NSA TSP.

Acting Associate AG Delery and CIA General Counsel Krass know that Acting AAG of the NSD Olsen had been AG Holder’s 2010 Associate DAG before becoming DOD Cyber- Commander-NSA Director General Alexander’s 2010-2011 NSA General Counsel and then DNI Director Clapper’s 2011-2014 DNI Director of the National Counterterrorism Center (NCTC). As a result, they both know with 20/20 hindsight the legal significance of Acting AAG of NSD Olsen not informing the FISC in the 2009 application for a metadata order, that NSA Director General Alexander was conducting “back door” warrantless searches of the 1982-2009 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. They know whether this was based on the Article II “FISA secret law” of the Top Secret May 24, 1984 OLC FISA Memo that AAG of the OLC Theodore Olson had sent 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.

Acting Associate AG Delery and CIA General Counsel Krass know the GAO knows that NCTC Director Olsen (2011-2014) knows there is a NSA-NCTC electronic audit trail of the searches of 2012-2014 E.O. 12333 Top Secret NSA TSP “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data that is based on 1993 USSID SP0018 standards. Acting Associate AG Delery and CIA General Counsel Krass know that because NCTC Olsen’s institutional memory tracks back to when he was 2004-2005 Special Counsel for FBI Director Mueller, NCTC Director Olsen knows whether a 2014 audit trail program based on USSID SP0018 standards, can retroactively generate an audit trail of 1982-2001 CIA analysts access to the stored 1982-2001 E.O. 12333 data sets when the pre-9/11 CIA Directors conducted their “back door” warrantless searches of 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data sets. Acting Associate AG Delery and CIA General Counsel Krass both know that NCTC Director Olson, the 2004-2005 FBI Special Counsel, can determine whether the 1980s Robert VII v DOJ “FISC Robert” documents have been purged. See 6-10-14 letter to Judge Seybert ¶ 10 and § L below

23 6. The redacted August 17, 2009 “Verified Memorandum of Law In Response to FISC Supplemental Order” FRCP 11 signed by AG Holder and AAG of the National Security Division (NSD) David Kris who provided a redacted declassification date. http://www.dni.gov/files/0808/Final%20042.Memorandum%20of%20Law%20and%20Fact%20i n%20Support%20of%20Application%20for%20Pen%20Registers%20and%20Trap%20and%20 Trace%20Devices%20for%20Foreign%20I~1.pdf

Acting Associate AG Delery and CIA General Counsel Krass know that 2009-2011 AAG of the National Security Division David Kris had been AG Reno’s and Ashcroft’s 2000-2003 Associate DAG. They know that he had written a January 26, 2006 “whistleblower” Memo re the NSA TSP that explained why he believed that the “NSA PSP” was conducted in violation of the “exclusivity provision” of the FISA. The issue of whether AAG of the NSD Kris informed the 2009 FISC of the Article II “FISA secret law” of the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” is a fact issue of “Past is Prologue” significance given his pre-9/11 “institutional memory” of the May 24, 1984 Top Secret “OLC Olson FISA Memo” as AG Reno’s 2000-2001 Associate DAG.

Acting Associate AG Delery and CIA General Counsel Krass know why Mr. Kris had sent his January 26, 2006 “whistleblower” memo to AG Gonzales’ Associate Counsel Courtney Elwood explaining his legal opinion that the post-9/11 “NSA PSP” was in violation of the “exclusivity provision” of the FISA of 1978 because of “Constitutional Preclusion” limits on the President’s Article II Commander in Chief authority to conduct warrantless surveillance:

A. Constitutional Preclusion. Congress intended to foreclose the President’s constitutional power to conduct foreign intelligence “electronic surveillance” without statutory authorization. A provision of FISA, enacted in 1878 and now codified at 18 U.S.C. § 2511 (2)(f), provides in relevant part that “procedures in … the Foreign Surveillance Act of 1878 shall be the exclusive means by which electronic surveillance, as defined in (FISA)…. may be conducted.” It also provides that that the criminal wiretapping law known as “Title III,” and other statutes governing ordinary law-enforcement investigations, are “exclusive” as to the surveillance activity that they regulate. Id. 2. Emphasis not added. http://balkin.blogspot.com/kris.fisa.pdf.

AG Reno’s 2000-2001 Associate DAG Kris knew whether NSA Director General Michael Hayden (1999-2005) had conducted “back door” warrantless searches of pre-9/11 1982- 2001 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizen’s comingled stored content data. This is key “Past is Prologue” fact because NSA Director General Hayden would become the April 21, 2005-May 26, 2006 Principal Deputy Director of the NDI and then the 2006-2009 CIA Director. Notwithstanding his July 26, 2006 “whistleblower” memo, AAG of the NSD Kris knew on August 17, 2009, whether the 1982-2009 CIA Directors had conducted “back door” warrantless searches of the 1982-2009 E.O. 12333 Top Secret FISA exempt” NSA TSP “haystacks” of U.S. citizen’s comingled stored content data. He knew the warrantless searches were based on 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 authority and that the Fourth Amendment did not apply to this “constitutionally seized” data.

24 7. The 2010 Top Secret 75 page “Memorandum of Law and Fact in Support of Application for Pen Registers and Trap and Trace Devices for foreign intelligence purposes,” that was filed with the FISC and FRCP 11 signed by AG Holder and AAG of the NSD Kris. http://www.dni.gov/files/0808/Final%20042.Memorandum%20of%20Law%20and%20Fact%20i n%20Support%20of%20Application%20for%20Pen%20Registers%20and%20Trap%20and%20 Trace%20Devices%20for%20Foreign%20I~1.pdf

Acting Associate AG Delery and CIA General Counsel Krass know the legal significance of the redacted pages of AAG of the NSD Kris’ 2010 Top Secret 75 page “Memorandum of Law and Fact in Support of Application for Pen Registers and Trap and Trace Devices for foreign intelligence purposes.” They know whether these pages discuss the “FISA secret law” of the May 24, 1984 Top Secret “OLC Olson FISA Memo” and its Article II “FISA secret law” conclusion the Fourth Amendment does not apply to “constitutionally seized” data. This is a “smoking gun” fact if AAG of the NSD Kris did not inform the FISC that he knew the 1982- 2010 CIA Directors had conducted “back door” warrantless searches of the 1982-2010 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data sets that also included the dragnetted 2004-2010 FISC Ordered metadata.

AAG of the NSD Kriss informed the FISC that the 2010 FISA application re the metadata program would adhere to the 1993 NSA USSID 18 “minimization” standards:

Accordingly, this Application proposes adherence to the standards set out in United States Signals Intelligence Directive No. SPOO18 (1993) (USSID 18) to any results from queries of the metadata disseminated outside of NSA in any form. In addition, prior to disseminating an U.S. persons information outside NSA, certain NSA officials must determine that the information identifying that U.S. person is in fact related to counterterrorism information and is necessary to understand the counterterrorism information or asses its importance. Id. 4. Emphasis added.

AAG of the NSD Kris knew that the NSA 1993 USSID 18 “minimization” standards had not been subject to a 1993 FISC Order. He knew that none of the 1982-2014 AGs ever informed the FISC that the AGs determined that CIA Directors had the authority to conduct warrantless searches of the E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. He knew that no FISC Judge knew of AAG of the OLC Olson’s May 24, 1984 OLC FISA Memo” Top Secret “FISA secret law re E.O. 12333 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.

Acting Associate AG Delery and CIA General Counsel Krass know whether AAG of the NSD Kris informed the 2010 FISC that the Article II “FISA secret law” is based on AAG of the OLC Olson’s Top Secret May 24, 1984 OLC FISA Memo” that the Fourth Amendment does not apply to E.O. 12333 “FISA exempt” stored data. They also know whether Acting AAG of the OLC Thompson based his July, 2014 OLC opinion on AAG of the OLC Olson’s Top Secret May 24, 1984 OLC FISA Memo” with its Fourth Amendment “constitutionally seized” analysis. They know whether Acting AAG of the OLC Thompson’s “OLC Riley v California Memo” is consistent with AAG of the NSD Kris’ 2010 Top Secret Memorandum’s redacted pages.

25 8. The 2010 Top Secret DOJ “Report of the United States” filed with the FISC and FRCP 11 signed by AAG of the NSD Kris and classified by AG of the NSD Kris. http://www.dni.gov/files/0808/Final%20063.DOJ%20Report%20to%20the%20FISC%20on%20 NSA's%20program%20to%20collect%20metadata.pdf

Acting Associate AG Delery and CIA General Counsel Krass know the legal significance of AAG of the NSD Kris’ FRCP 11 signed 2010 Top Secret “Report of the United States” submitted to the FISC in response to FISC concerns re the NSA procedures implementing the FISC approved metadata program. They know whether AAG of the NSD Kris informed the FISC of the May 24, 1984 Top Secret “OLC Olson FISA Memo” that was the legal basis for CIA Directors conducting “back door” warrantless searches of the 1982-2010 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. They know that fact is evidenced by the 1980s Robert VII v DOJ “FISC Robert” documents withheld pursuant to the CIA’s use of FOIA Exemption 1 and the “Glomar Response” defense.

AAG of the NSD Kris informed the FISC that the “Report of the United States” was based on a NSA “end-to-end system engineering and process” review of the metadata program:

The United States of America, by and through the undersigned Department of Justice attorneys respectfully submits this report and supporting documents that (1) set forth results of the National Security Agency’s (NSA) end-to-end system engineering and process reviews of its instrumentation and implementation of the authorities granted by the Court in docket number PR/TT redacted and previous docket numbers, (2) respond to Orders to the Court entered on –redacted- in docket number PR/TT _redacted- and (3) fully discuss the compliance issues first identified in a notice filed with the Court on –redacted. Id. 1, 2 Emphasis added.

Acting Associate AG Delery and CIA General Counsel Krass know whether the redacted pages 21-29 of AAG of the NSD Kris’ FRCP 11 signed report reveal whether AAG of the NSD Kris had informed the FISC of the Article II “FISA secret” law of the Top Secret May 24, 1984 and May 6, 2004 OLC FISA Memos. This is an important fact because AAG Kris had informed the FISC of CIA unminimized queries. “Additionally, NSA also discovered some unminimized query results were made available to certain Central Intelligence Agency (CIA), FBI, and National Counterterrorism Center (NCTC) analysts via an NSA database, a practice which was not consistent with Court’s Orders.” Id. 11-12. Emphasis added. AAG of the NSD Kris knew whether the NSA analysts information-sharing with CIA analysts was the result of the 1982-2010 AGs approving the 1982-2014 CIA Directors authority to conduct “back door” warrantless searches of the 1982-2010 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ commingled stored content data sets now transferred to the Utah Data Center.

The plaintiff asserts that if Acting Associate AG Delery knows that AAG of the NSD Kris did not inform the FISC of the May 24, 1984 “OLC Olson FISA Memo“ with its Fourth Amendment “constitutionally seized” analysis, then Acting Associate AG Delery knows that AAG of the NSD Kris had made the 2010 FISC the “handmaiden” of AG Holder. “Under no circumstances should the Judiciary become the handmaiden of the Executive.” Doe, et. al. v Mukasey, Mueller, and Caproni, 549 F 3d 861, 870 (2d Cir. 2008). Emphasis added.

26 9. The 2010 Top Secret 39 page “Pen Register/Trap and Trace FISA NSA Review” that was prepared by the Pen Register/Trap and Trace Team with pp 33-35 redactions re the “Activities Detection (Alerting) Process”, End-to-End-Review, and “Analyst Decision and Reporting Process.” http://www.dni.gov/files/0808/Final%20062.NSA's%20Pen%20Register- Trap%20and%20Trace%20FISA%20Review%20Report.pdf

Acting Associate AG Delery and CIA General Counsel Krass know that this “FISA NSA Review” by a specially selected “Pen Register/Trap and Trace Team,” will be reviewed by President Obama’s Privacy and Civil Liberties Oversight Board (PCLOB). They both know that the PCLOB may consider this “FISA NSA Review” of the metadata program, as a prototype for a needed “FISA NSA Review” of the E.O. 12333 Top Secret “FISA exempt” content NSA TSP that the PCLOB has now committed itself to investigate and report to the President. They know PCLOB Members know why the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP has never been reviewed by the Article I SSIC and HSIC or the Article III FISC. They know that there is a possibility that the PCLOB may recommend that based on the Supreme Court’s June 25, 2014 unanimous Riley v California decision, all Intelligence Community (IC) analysts, including CIA analysts, must have a FISC Order prior to conducting a search of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data wherever stored. See plaintiff’s 7-11-14 letter to Judge Seybert re Riley.

The special Pen Register/Trap and Trace Team stated its conclusion:

There was no single cause of the issues identified through the PR/TT end-to- end review. In fact, a number of successful oversight, management, and technology processes in place operated as designed. The problems experienced from a lack of shared understanding of the full scope of the program, to include its implementation and end-to-end design among the key mission, technology, legal and oversight stakeholders. The complexity of the overall configuration, due in part to the intricacy of the system, and differing rule associated with NSA’s various authorizations, was also a contributing factor, as was the fact that NSA oversight was primarily focused on analyst access to and sue of the archived metadata. Id. 3. Emphasis added.

Acting Associate AG Delery and CIA General Counsel Krass both know that the PCLOB may publicly release its PCLOB Report of the E.O. 12333 “end-to-end design” of the IC analysts, including CIA analysts, warrantless searches of the E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. They know the PCLOB may recommend that President Obama declassify 1) the May 24, 1984 Top Secret “OLC Olson FISA Memo,” 2) the September 5, 2014 re-reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” and 3) the July, 2014 “OLC Riley v California FISA Memo.” If those OLC FISA Memos are declassified, then Acting Associate AG Delery and CIA General Counsel Krass know from reading the Robert II v CIA and DOJ case file notes and e-mails whether President Obama will have a § 413 (b) of the National Security Act “shall” duty to file a “corrective action” plan to cure the illegal CIA domestic “special activity” at the NSA.

Hence, the relevance of the 2010 “FISA NSA Review” to Robert II v CIA and DOJ. If AG Holder knows these CIA facts, then he should considers plaintiff’s quiet settlement offer.

27 E. The August 11, 2014, Second Circuit NY Times v DOJ decision re redacted OLC FOIA opinions and the procedure for District Court in camera ex parte review

On August 11, 2014, the Second Circuit rendered a supplemental NY York Times v DOJ decision as to its June 23, 2014 decision to release of the redacted OLC FOIA opinion re the drone killing of a U.S. citizen. This decision establishes the Second Circuit “FOIA classified document law” that AG Holder is to follow when District Court Judges render FOIA decisions re FOIA requested Top Secret documents. See 5-1-14 letter to Judge Seybert ¶¶ 3, 10.

On April 21, 2014 the Second Circuit had decided The New York Times Co. v U.S. Dep’t of Justice, 752 F. 3rd 123 (2d Cir. 2014) with a public and a sealed version of the decision. On June 5, 2014, AG Holder filed a petition for panel and en banc rehearing. On June 23, 2014, the Second Circuit partially denied the rehearing. See New York Times Co. v U.S. Dep’t of Justice, 2014 WL 2854878 (June 23, 2014). On July 10, 2014, the Second Circuit adjudicated a Vaughn Index issue and revised its decision as to the redaction of descriptions. On July 23, 2014, AG Holder filed another Motion seeking leave to file a request for redaction of an additional eleven listing of documents on the Vaughn Index. On August 11, 2014, the Second Circuit granted in part the request for additional redactions of listings and again denied the petition for a panel rehearing: Furthermore, we emphasize that we are ordering disclosure only of the titles and descriptions of the several documents we identify by number. The purpose of a Vaughn index is to afford a FOIA plaintiff an opportunity to decide which of the listed documents it wants and to determine whether it believes it has a basis to defeat the Government’s claim of a FOIA exemption. See Keys, 830 F.2d at 349. Titles and descriptions serve that purpose. Id. 10-11. Emphasis added. http://www.ca2.uscourts.gov/decisions/isysquery/29d7ba94-1701-4599- a190-d59d5f978599/28/doc/13- 422_supp_rhrg_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isys query/29d7ba94-1701-4599-a190-d59d5f978599/28/hilite/ This NY Times v DOJ holding is relevant because it would be the standard Judge Garaufis would apply if he decides plaintiff’s Robert VIII v DOJ, HHS, and SSA Motion for a preclearance Order to file a FOIA complaint seeking the “Peter Keisler Collection” documents. Upon information and belief, AG Holder will seek redactions of the Vaughn Index that lists the “Peter Keisler Collection” documents that are now subject to the plaintiff’s June 25, 2014 NARA FOIA appeal of the June 2, 2014 decision of the Estate of President Reagan to use executive privilege to withhold these FOIA requested documents. See 6-10-14 letter to Judge Seybert ¶ 19, 7-11-14 letter to Judge Seybert, and 6-25-14 NARA Presidential Records Act documents appeal WP §§ A, C, G, H, J, M. http://snowflake5391.net/6_25_14_NARA_Final.pdf. See BB below. The plaintiff asserts that “Peter Keisler Collection” documents are connect-the-dots documents to the Robert II v CIA and DOJ “North Notebook” documents. These documents reveal the legal basis for the CIA domestic “special activity” at IMC. They also may corroborate the plaintiff’s grave allegation that Associate WH Counsel Keisler had “defrauded” President Reagan by not informing the President that CIA Director Casey’s domestic “special activity” at IMC was a violation of E.O. 12333 limitation on CIA domestic covert operations.

28 F. The August 14, 2014 State Department “whistleblower” complaint re the NSA TSP

On August 14, 2014, NY Times reporter Charlie Savage reported in “Reagan-Era Order on Surveillance Violates Rights, Says Departing Aide,” that former-State Department official John Tye had filed a whistleblower complaint re the E.O. 12333 NSA TSP with the State Department IG and with HSIC Chairman Mike Rogers. The public now knows there has been a formal State Department IG “whistleblower” complaint that asserts that the Intelligence Community’s access to U.S. citizens’ content of the 1982-2014 E.O. 12333 “haystacks” without FISC warrants, was a violation of the Fourth Amendment rights of U.S. citizens. Savage reported whistleblower Nye’s comments re E.O.12333:

It’s a problem if one branch of government can collect and store most Americans’ communications, and write rules in secret on how to use them — all without oversight from Congress or any court, and without the consent or even the knowledge of the American people,” Mr. Tye said. “Regardless of the use rules in place today, this system could be abused in the future.” Id. Emphasis added.

Savage reported on the issue of the NSA sharing the raw E.O. 12233 intercepts:

For now, the N.S.A. does not share raw 12333 intercepts with other agencies, like the F.B.I. or the C.I.A., to search for their own purposes. But the administration is drafting new internal guidelines that could permit such sharing, officials said. Id. Emphasis added. The plaintiff alleged in his 1985-2014 FOIA actions that the NSA had shared Robert raw E.O. 12333 intercepts” with the CIA and FBI. See Robert v Holz, Robert I v CIA, Robert II v CIA and DOJ, 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). The plaintiff notes that during his 1985-2014 FOIA litigation saga, there were apparently no DOJ “whistleblowers” complaints filed with the DOJ IG.

The plaintiff presented the issue of the NSA providing raw Robert data to the CIA in his monthly Robert II v CIA and DOJ status letters. The plaintiff explained his belief there would be a quiet settlement in the summer of 2014 if AG Holder knew that the “North Notebook” documents are part of a mosaic of documents that prove whether CIA Directors have “run amok” in their violation of the E.O. 12333 limitation on CIA domestic “special activities” that includes warrantless surveillance of U.S. citizens. See plaintiff’s 4-4-14 letter to Judge Seybert ¶ 8.

The plaintiff filed the February 7, 2014 de novo FBI FOIA request for FBI documents to prove whether FBI Directors knew that the NSA had shared E.O. 12333 NSA TSP raw 1980s “Robert” content data with the CIA. http://snowflake5391.net/2_7_14_FBI_FOIA_request.pdf Acting Associate AG Delery knows whether 2014 FBI General Counsel Baker knew as the 2004 OIPR Counsel that the 1980s NSA had shared raw E.O. 12333 Top Secret “FISA exempt” Robert data with the CIA and FBI. See plaintiff’s 8-12-14 letter to Judge Seybert ¶¶ 14-16.

29 G. The August 15, 2014 NY Times v DOJ Notice of Lodging of Classified documents

On August 15, 2014, AAG of the Civil Division Stuart Delery and SDNY U.S. Attorney Preet Bharara filed a “Notice of Lodging of Classified Documents” with the SDNY Clerk in NY Times v DOJ, 11 Civ 9336 (CM) and ACLU v DOJ, 12 CIV. 794 (CM). This document informed the plaintiffs and the public that the USG filed FOIA requested classified documents for the Court’s in camera, ex parte review. AAG of the Civil Division Delery and EDNY U.S. Attorney Lynch have not filed any “Notice of Lodging of Classified Documents” in Robert II v CIA and DOJ informing the plaintiff and the public of the filing of classified documents.

The New York Times v DOJ “Notice of Lodging of Classified Documents” states:

In accordance with the Court’s Orders dated June 30 and July 9, 2014, defendants in the above-captioned matters hereby provide notice that they have lodged classified documents for the Court’s in camera, ex parte review. These documents are classified pursuant to Executive Order 13,526, 75 Fed. Reg. 707 (Jan. 5, 2010), and cannot be disclosed without proper authorization. The submissions have been lodged with Classified Information Security Officer Harry Rucker, with the United States Department of Justice Litigation Security Group (202-514-9016), for secure transmission to the Court. Id. Emphasis added. https://www.aclu.org/sites/default/files/assets/notice_of_lodging_of_classi fied_documents.pdf

The plaintiff asserts that if AAG of the Civil Division Delery (2012-2014) filed a “Notice of Lodging of Classified Documents” in NY Times v DOJ, then he had a duty to file a “Notice of Lodging of Classified Documents” in Robert II v CIA and DOJ. If the Robert II v CIA and DOJ Summary Judgment Motion proceeds, then AG Holder will have this ongoing duty to file a “Notice of Lodging of Classified Documents” with the Court re the four one page CIA classified 1985 “North Notebook” documents that are subject to President Obama’s December 29, 2009 E.O. 13526, § 3.3 Automatic Declassification 25 year rule (1985+25=2010).

Upon information and belief, AAG of the Civil Division Keisler (2003-2007) filed a 2004 Robert II v CIA and DOJ in camera ex parte Declaration with Magistrate Judge Lindsay. If so, then there was no Notification to the plaintiff or the public that the co-defendants had filed an in camera ex parte Declaration. This is in important fact that the plaintiff should have known prior to filing his April 19, 2004 Objections to Magistrate Judge Lindsay’s April 9, 2004 Report.

With 20/20 hindsight, Acting Associate AG Delery has a duty to review for accuracy any 2004 in camera ex parte Declaration that AAG of the Civil Division Keisler had filed with Magistrate Judge Lindsay. If he determines that material facts were withheld as part of a Barrett “nonacquiescence” policy to protect CIA domestic “sources and methods,” then Judge Seybert should be informed of that fact in an October, 2014 in camera ex parte Declaration. “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.” Barrett v. United States, 798 F. 2d 565, 573 (2d Cir. 1986). Emphasis Added. In the alternative, he can recommend that the co-defendants accept plaintiff’s quiet settlement offer.

30 H. The August 16, 2014 declassified Top Secret OLC drone killing memo

On August 16, 2014, NY Times reporter Charlie Savage reported in “First Justice Department Memo on Killing Anwar Al-Awlaki,” that the DOJ released that Top Secret OLC memo as a redacted document because of the FOIA action by the NY Times and the ACLU. This OLC document revealed that Acting AAG of the OLC James Barron (2009-2010) had authored the first OLC memo that determined that an E.O. 12333 assassination ban did not apply. This is an important document because it was signed on February 19, 2010 and then replaced with AAG of the OLC Barron’s second longer July 16, 2010 OLC memo. The Second Circuit ordered AG Holder to release both Top Secret OLC memos as redacted documents for the public to read. See plaintiff’s 6-10-14 letter to Judge Seybert ¶ 15.

Savage reported on Acting AAG of the OLC Barron’s two OLC drone memos: In February 2010, the Justice Department’s Office of Legal Counsel signed the below memo concluding that killing Awlaki would be lawful. After discovering that it had overlooked certain legal issues, O.L.C. later replaced this with a second, longer memo. which was previously released. The government made both once-secret memos public, in redacted form, as a result of Freedom of Information Act lawsuits by the New York Times and the American Civil Liberties Union. Id. Emphasis added. http://www.nytimes.com/interactive/2014/06/23/us/23awlaki- memo.html?_r=1. The plaintiff asserts that Acting AAG of the OLC Barron’s two OLC drone memos are relevant to Robert II v CIA and DOJ because they reveal the process by which the CIA General Counsel works with the AAG of the OLC in tweaking a “secret law” that is not known to the Article I SSIC and HSIC and/or Article III Judges. Acting AAG of the OLC Barron’s drone memos were issued when CIA General Counsel Krass was President Obama’s National Security Affairs and Deputy Legal Adviser at the National Security Council (2009-2010).

CIA General Counsel Krass knows first hand how the process of tweaking OLC memos affect CIA domestic sources and methods. She was AG Holder’s Principal Deputy OLC attorney (2011-2013) before becoming AG Holder’s Acting AAG of the OLC on December 21, 2013. She had worked with her predecessor CIA General Counsel Stephen Preston (2009-2013). She knows how Article II “FISA secret law” can be “secretly” changed without the knowledge of the FISC. This is the OLC “secret law” process that was used to create the 1982-2014 E.O. 12333 “FISA secret law” that has never been subject to Article I or Article III review. She knows that after the Snowden leaks, CIA General Counsel Preston knew whether President Obama knew of the Article II “FISA secret law” of the E.O. 12333 Top Secret “FISA exempt” NSA TSP. See 10-30-13 Preston WP http://snowflake5391.net/10_30_2013_13_WP_Preston.pdf.

Acting Associate AG Delery knows CIA General Counsel Krass knows whether the Supreme Court’s Riley v California decision resulted in the OLC tweaking the May 24, 1984 “OLC Olson FISA Memo” with the July, 2014 “OLC Riley v California memo.” If so, then she may recommend a quiet settlement rather than have to consult with CIA Director Brennan, her client, and then file FRCP 11 signed 1) “Notice of Lodging of Classified Documents” and 2) an in camera ex parte Declaration explaining why the 1985 “North Notebook” documents should remain as classified documents and not automatically declassified pursuant to the 25 year rule.

31 I. The August 17, 2014 Dowd article re AG Holder’s decision whether to indict NY Times investigative reporter James Risen re a classified document leak, and AG Holder’s knowledge of AG Gonzales’ 2005 Motion to secure the December 9, 2005 Robert VII v DOJ injunction re Robert filing new FOIA requests without a pre-clearance Order

On August 17, 2014, NY Times columnist Maureen Dowd in “Where’s the Justice at Justice,” explained the plight of NY Times reporter James Risen who is now subject to being indicted by AG Holder for not releasing the name of his CIA source for a CIA article he wrote. Risen’s investigative reporting re the NSA TSP is linked to the 2004-2014 AGs’ Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA litigation decisions. On December 9, 2005 Judge Garaufis, issued his Robert injunction requiring a pre-clearance Order for Robert to file any future FOIA requests. This was in reliance on AG Gonzales’ attorneys October, 2005 FRCP 11 signed in camera ex parte pleadings. On December 16, 2005, the NY Times published the Risen and Lichtblau NSA TSP report, Bush Lets U.S. Spy on Callers Without Courts, which the NY Times had embargoed since prior to the November, 2004 election.

Dowd reports on Risen’s view of his 2014 vulnerability to arrest: So why don’t they back off Risen? It’s hard to fathom how the president who started with the press fluffing his pillows has ended up trying to suffocate the press with those pillows. How can he use the Espionage Act to throw reporters and whistle-blowers in jail even as he defends the intelligence operatives who “tortured some folks,” and coddles his C.I.A. chief, John Brennan, who spied on the Senate and then lied to the senators he spied on about it? “It’s hypocritical,” Risen said. “A lot of people still think this is some kind of game or signal or spin. They don’t want to believe that Obama wants to crack down on the press and whistle-blowers. But he does. He’s the greatest enemy to press freedom in a generation.” Risen points to recent stories about the administration pressing an unprecedented initiative known as the Insider Threat Program, which McClatchy described as “a government-wide crackdown on security threats that requires federal employees to keep closer tabs on their co-workers and exhorts managers to punish those who fail to report their suspicions.” Risen may be trapped in Ibsen, but Obama is channeling Orwell. Id. Emphasis added. If AG Holder authorizes an indictment of James Risen, then Risen’s knowledge of whether AGs Ashcroft (2001-2005), Gonzales (2005-2007), (Acting) Keisler (2007), Mukasey (2007-2008), and Holder (2009-), filed FRCP 11 signed pleadings in Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA to protect illegal CIA domestic “special activities,” may be of assistance to him. One of the defenses of an indicted James Risen may be that his CIA source was a de facto “whistleblower” who knew the CIA was violating § 413 (a) of the National Security Act by not providing Congressional Notification of a CIA covert operation. The plaintiff has asserted that all of these AGs knew of the illegal CIA domestic operations at IMC and NSA.

32 Risen has reported that AG Ashcroft had in October, 2004 requested that the NY Times voluntarily not publish the Risen and Lichtblau investigative report re the Top Secret NSA TSP in order not to endanger the national security by allowing enemies to know about the NSA TSP. As a result, the NY Times did not publish their NSA TSP article until December 16, 2005.

If Risen’s report of the AG’s 2004 request to the NY Times was accurate, then OIPR Counsel Baker’s October 1, 2004 “corrected” Robert VII v DOJ Declaration re the “FISC Robert” documents takes on greater significance. OIPR Counsel Baker knew on March 1, 2004 of the pre-9/11 E.O. 12333 Top Secret “FISA exempt” NSA TSP when he made his March 1, 2004 decision to ratify the CIA’s use of FOIA exemption 1 and the “Glomar Response” defense to withhold the Robert II v CIA and DOJ plaintiff’s FOIA requested “FISC Robert” documents. This is an important fact for Risen to know because of DNI Clapper’s August 11, 2014 declassification of OIPR Baker’s documents filed with the FISC. The documents were FRCP 11 signed DOJ officials including AG Ashcroft, DAG Comey, and himself. See §§ D 1, 2, 4 above.

OIPR Counsel Baker’s Robert VII v DOJ October 1, 2004 “corrected” Declaration re the “FISC Robert” documents is a connect-the-dots document to the September 5, 2014 re- reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” with the now declassified title: Review of the Legality of the STELLAR WIND Program. OIPR Counsel Baker knew on October 1, 2004 when he submitted his “corrected” Declaration to Judge Garaufis whether Robert had been the target of the pre-9-11 precursor of the post-9/11 STELLAR WIND Program. https://www.aclu.org/sites/default/files/assets/olc_stellar_wind_memo_-_may_2004.pdf

Acting Associate AG Delery knows whether OIPR Counsel Baker knew of the pre-9/11 E.O. 12333 Top Secret “FISA exempt” NSA TSP prior to filing his 2004 Top Secret FISC “Application for Pen Register/Trap and Trace Device for Foreign Intelligence Purposes,” from reading the Robert VII v DOJ case file notes and e-mails. He knows whether AG Ashcroft and OIPR Counsel Baker informed the FISC in their 2004 metadata application of the Article II “FISA secret law” of the May 24, 1984 Top Secret “OLC Olson FISA Memo” and May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” If not, then Acting Associate AG Delery knows that FBI General Counsel Baker knows why AG Ashcroft and OIPR Counsel Baker did not inform the 2004 FISC of the fact that 1982-2004 CIA Directors had conducted “back door” warrantless searches of the 1982-2004 U.S. citizens’ commingled stored content data. See § D 1 above.

Acting Associate AG Delery also knows from reading the classified “North Notebook” documents along with the DOJ case file notes and e-mails in Robert v Holz, Robert v National Archives, Robert I v CIA, Robert v DOJ, Robert VII v DOJ, Robert VIII v DOJ, HHS, and SSA, and Robert II v CIA and DOJ whether there is a AG policy and practice to file false FRCP 11 signed pleadings to protect CIA “sources and methods” of conducting CIA domestic operations in serial violation of the § 413 (a) of the National Security Act Congressional Notification requirement and the E.O. 12333 prohibition of CIA domestic “special activities.” If so, then Mr. Risen and the NY Times should know of the existence of documents that prove whether FBI General Counsel James Baker knows of this policy and practice. Mr. Risen should know whether FBI General Counsel Baker has informed FBI Director Comey of the DOJ policy and practice of covering up illegal CIA domestic operations. See plaintiff’s 12-3-13 OLC WP § U, pp. 31-39 re OIPR Counsel Baker’s knowledge of the cover up of CIA domestic “special activities” at NSA in USG FRCP 11 signed pleadings. http://snowflake5391.net/12_3_13_FISA_MEMOS.pdf.

33 J. The August 18, 2014 Statement of DNI CLPO Officer Joel re “minimization” procedures

On August 18, 2014, DNI Clapper posted on the DNI website On the Record, a Statement by Alexander W. Joel, the 2005-2014 DNI Civil Liberties Protection Officer (CLPO). “The Truth About Executive Order 12333.” This DNI On the Record Statement was in response to NY Times reporter Savage’s August 14, 2014 Times description of former State Department employee John Napier Tye as a whistleblower. DNI CLPO Joel explained the 1982-2014 E.O. 12333 NSA TSP and the 1993-2014 E.O.12333 “minimization” protections.

CLPO Joel first noted the FISC warrant requirement with “very limited exceptions” for content surveillance of a U.S. citizen: At the outset, remember that FISA, with very limited exceptions, requires the government to seek an individualized court order before it can intentionally target a United States person anywhere in the world to collect the content of his or her communications. The FISA court must be satisfied, based on a probable cause standard, that the United States person target is an agent of a foreign power, or, as appropriate, an officer or employee of a foreign power. Id. Emphasis added http://icontherecord.tumblr.com/ CLPO Joel explained the Congressional intent in enacting the FISA of 1978 that there be “minimization procedures” approved by the FISC: Indeed, when Congress first enacted FISA in 1978, it required the government to follow what are called “minimization procedures.” These procedures, which must be approved by the FISA court, restrict what the government can do with collected information about U.S. persons (such as for how long that information may be retained, and under what circumstances it may be shared). Id. Emphasis added. CLPO Joel explained that the E.O. 12333 “minimization procedures” were approved by the Attorney General and not approved by the FISC:

Similarly, EO 12333 requires procedures to minimize how an agency collects, retains or disseminates U.S. person information. These procedures must be approved by the attorney general, providing an important additional check. The National Security Agency’s procedures are reflected in documents such as United States Signals Intelligence Directive SP0018 (USSID 18), issued in 1993 and updated in 2011. Id. Emphasis added.

CLPO Joel explained that although there is no Article III FISC supervision of the E.O. 12333 NSA TSP, there are extensive Article II multi-layered reviews and Article I oversight: Oversight is extensive and multi-layered. Executive branch oversight is provided internally at the NSA and by both the Department of Defense and the Office of the DNI by agency inspectors general, general counsels, compliance officers and privacy officers (including my office and the

34 NSA’s new Civil Liberties and Privacy Office). The Department of Justice also provides oversight, as do the Privacy and Civil Liberties Oversight Board and the president’s Intelligence Oversight Board. In addition, Congress has the power to oversee, authorize and fund these activities. Id. Emphasis added. CLPO Joel provided an example of the internal E.O. 12333 compliance system by posting a letter from NSA IG George Ellard re his investigation of E.O. 12333 violations: Indeed, the NSA’s extensive internal compliance system enforces key protections regardless of nationality, as shown by the letter recently issued by the NSA inspector general. That letter reported on the small number of cases over the past decade in which government employees had intentionally violated prohibitions on searching signals intelligence information; in several cases, employees were held accountable for improperly searching for information about foreign nationals. Id. Emphasis Added. NSA IG George Ellard’s letter to Judiciary Committee Ranking Member Senator Charles Grassley with a cc to Chairman Patrick Leahy, was a list of 12 violations of E.O. 12333 “minimization standards” and the results of the NSA IG’s investigation:

Since 1 January 2003, there have been 12 substantiated instanced of intentional misue of the signals intelligence (SIGINT) authorities of the Director of the National Security Agency. The NSA Office of the Inspector General (OIG) currently has two open investigations into alleged misuse of SIGINT and is reviewing one allegation for possible investigation. Id. 1. Emphasis added. https://www.nsa.gov/public_info/press_room/2013/grassley_letter.pdf

On December 7, 2005, DNI Director John Negroponte had appointed Mr. Joel to be the first DNI CLPO. The plaintiff notes that this was two days before Judge Garaufis’ December 9, 2005 Robert VIII v DOJ, HHS, and SSA Robert injunction and nine days before NY Times reporters Risen and Lichtblau’s December 16, 2005 report on the warrantless NSA TSP.

The plaintiff also notes that from October 2002-December 7, 2005, Alexander Joel was a CIA attorney in the CIA Office of General Counsels Scott Muller (2002-2004) and (Acting) John Rizzo (2005-2009). As a result, he had constructive knowledge of the content of the “FISC Robert” documents that on March 1, 2004 OIPR Counsel Baker reviewed and ratified the CIA’s use of FOIA Exemption 1 and the “Glomar Response” defense. He knows whether HHS General Counsel Juan del Real was CIA Director Casey’s illegal CIA domestic agent when in December, 1984 he initiated the “Fraud Against Robert” investigation of Robert seeking his incarceration.

If after the Robert v CIA and DOJ Motion for Summary Judgment conference there is no quiet settlement, then the plaintiff will file a formal complaint with President Obama’s PCLOB and cite to the Notice that he had provided to DNI CLPO Joel. He will request a PCLOB investigation of his allegation that CLPO Joel knew Robert was a target of the E.O. 12333 Top Secret “FISA exempt” NSA TSP and that his 1980s stored content data remains in the 2014 E.O. 12333 “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ commingled stored content data.

35 K. The August 18, 2014, Second Circuit NY Times v DOJ denial of AG Holder’s petition for a panel and en banc rehearing re the release of a Top Secret FOIA requested document

On August 18, 2014, the Second Circuit denied AG Holder’s NY Times v DOJ petition for a panel rehearing and rehearing en banc re the Top Secret OLC U.S. citizen Drone killing memo. All of the co-defendants: DOJ, DOD, and CIA joined in this petition. This is an important fact because CIA General Counsel Krass has participated in all of the NY Times v DOJ, DOD, and CIA litigation decisions since March 17, 2014 when she was confirmed by the Senate. See plaintiff’s 4-4-14 letter to Judge Seybert ¶ 4, § E above, and §§ O, T, W, Z, BB below.

The Second Circuit’s August 18, 2014 Order states in its entirety:

Appellees the United States Department of Justice, the United States Department of Defense, and the Central Intelligence Agency filed a petition for panel rehearing and rehearing enbanc. The request for panel rehearing was previously addressed in opinions of July 10, 2014 and August 11, 2014. The active members of the Court have considered the request for rehearing en banc.

IT IS HEREBY ORDERED that, to the extent that it remains outstanding, the petition is DENIED. Id. Emphasis added. https://www.aclu.org/sites/default/files/assets/order_denying_petition_for_ rehearing_en_banc.pdf

On August 18, 2014, the NY Times v DOJ Second Circuit panel issued its Mandate and remanded the case to SDNY Judge Colleen McMahon. The Mandate states in its entirety:

The appeal in the above captioned case from a judgment of the United States District Court for the Southern District of New York was argued on the district court record and the parties' briefs. Upon consideration thereof,

IT IS HEREBY ORDERED, ADJUDGED and DECREED that a final judgment is entered and the matter is REMANDED as directed in the Court’s opinion of July 10, 2014. Id. Emphasis added. https://www.aclu.org/sites/default/files/assets/second_circuit_mandate.pdf

CIA General Counsel Krass knows the Second Circuit New York Times v DOJ procedures for CIA classified FOIA withheld documents, should apply to the “North Notebook” documents. She was a 1999-2000 Deputy Legal Advisor to President Clinton’s National Security Council, AGs Reno-Ashcroft-Gonzales-Keisler-Mukasey 2000-2009 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, AG Holder’s 2011-13 Principal Deputy AAG of the OLC, and his 2013-2014 Acting AAG of the OLC. She has constructive knowledge of all of the Robert II v CIA and DOJ USG FRCP 11 signed in camera ex parte Declarations re the 1985 “North Notebook” documents. She knows why the 2002-2014 AGs and CIA Directors have withheld the “North Notebook” documents from the plaintiff. She has a duty to make a recommendation to CIA Director Brennan whether he should accept the quiet settlement offer.

36 L. The August 21, 2004 GAO Report re the Congressional Notification duty of the President

On August 21, 2014, the U.S. Government Accountability Office (GAO) General Counsel Susan A. Poling issued a GAO opinion letter that DOD Secretary of Defense Hagel and President Obama had violated the federal law re Notification to Congress of transfer of five Taliban prisoners detained at Guantanamo that were used in the Sgt. Bowe Bergdahl hostage exchange. “Department of Defense-Compliance with Statutory Notification Requirement.” http://www.gao.gov/assets/670/665390.pdf. The plaintiff cites to this GAO opinion letter because the GAO is another venue for the plaintiff to present the issue of the serial 1982-2014 violation of the § 413 (a) of the National Security Act Notification requirement when the NSA Directors conduct E.O. 12333 U.S. citizens’ raw data sharing with CIA Directors. The plaintiff will cite the GAO to AAG of the Civil Division Delery’s September 2, 2014 ACLU v Clapper Congressional “ratification” argument that he made to the Second Circuit panel, knowing that no Member of Congress was ever notified of the 1984, 2004, and 2014 OLC FISA Memos.

GAO General Counsel Poling determined that DOD Secretary Hagel violated a federal law that required Article I Notification before the DOD took action re Guantanamo prisoners:

As explained below, we conclude that DOD violated section 8111 because it did not notify the relevant congressional committees at least 30 days in advance of the transfer. In addition, because DOD used appropriated funds to carry out the transfer when no money was available for that purpose, DOD violated the Antideficiency Act. The Antideficiency Act prohibits federal agencies from incurring obligations exceeding an amount available in an appropriation. 31 U.S.C. § 1341(a). Id. 1. Emphasis added.

DOD General Counsel Preston (2013-) had informed the GAO’s General Counsel Poling of his legal opinion that the President Obama’s Article II Commander in Chief authority applied because of the unconstitutionality of any Notification statute that encroaches on the President’s Constitutional duty to protect Americans living abroad and U.S. service members:

DOD states that providing notice “would have interfered with the Executive’s performance of two related functions that the Constitution assigns to the President: protecting the lives of Americans abroad and protecting U.S. service members.” Id., Attachment 1, at 2. DOD asserts that these provisions violate the “constitutionally-mandated separation of powers.” Id., Attachment 1, at 3. According to DOD, section 8111 improperly “attempt[s] to impose through the spending power the same unconstitutional requirement that section 1035 (d)) would attempt to impose indirectly” Id. p. 5. Emphasis added.

DOD General Counsel Preston’s Article II Commander in Chief unlimited authority argument, is the same “constitutionally mandated separation of powers” argument that CIA General Counsel Preston (2009-2013) had based his litigation decisions in Robert II v CIA and DOJ. He knew that AG Smith (1981-1985), AG Meese (1985-1988), and AG Holder (2009-) had violated the § 413 (a) of the National Security Act Notification “shall” duty to inform the Congress that CIA Directors conducted warrantless searches of U.S. citizens’ stored content data.

37 M. The August 22, 2014 DNI Clapper declassified 2004 Declaration of CIA Director Tenet

On August 22, 2014, DNI Clapper posted on the DNI website On the Record, his Statement re “Newly Declassified Documents Regarding the Now-Discontinued NSA Bulk Electronic Communications Metadata Pursuant to Section 402 of the Foreign Intelligence Surveillance Act.” http://icontherecord.tumblr.com/. This was a follow up to his August 11, 2014 IC On the Record Statement. He posted two more documents re the metadata program.

DNI Director Clapper informed the public he was releasing two additional documents: Following a declassification review by the Executive Branch, the Department of Justice released on August 6, 2014, in redacted form, 38 documents relating to the now-discontinued NSA program to collect bulk electronic communications metadata pursuant to Section 402 of the FISA (“PRTT provision”). View the August 6, 2014 Document Release. Additional Documents On August 21, 2014, the following two additional documents were released in relation to this same declassification review:

 Declaration of George J. Tenet, Director of Central Intelligence, in Support of Pen Register/Trap and Trace Application

 Report Regarding FBI Databases The plaintiff asserts that these two CIA and FBI declassified and reclassified documents are connect-the-dots to the Robert II v CIA and DOJ “North Notebook” documents because they reveal that FBI Directors knew that CIA Directors conducted CIA domestic “special activities” in violation of the National Security Act of 1947 and December 4, 1981 E.O. 12333 prohibition as to CIA domestic covert operations. The plaintiff’s 2013 post-Snowden renewal of his long standing quiet settlement offer, has been based on his belief that AG Holder (2009-), FBI Director Mueller (2001-2013), and the new FBI Director Comey (September 4, 2013-) would decide to continue to withhold the 1985 CIA classified documents that reveal whether FBI Director Judge Webster (1978-1987) and CIA Director Judge Webster (1987-1991) knew 1) CIA Director Casey (1981-1986) had conducted illegal CIA domestic “sources and methods” at IMC and the NSA, and 2) the 1985 “Fraud Against the Government” investigations of both IMC and Robert were sham covers. See 12-14-11 and 8-15-12 Robert II v CIA and DOJ Status Affidavits. The plaintiff asserts that the 2004 Declaration of CIA Director George Tenet is relevant to the Robert II v CIA and DOJ “North Notebook” documents because CIA Director Tenant filed this 2004 FISC Declaration with knowledge of the litigation position that CIA General Counsel Muller (2002-2004) had taken on his behalf in opposing the 2002 Robert II v CIA and DOJ complaint seeking the release of the CIA classified “North Notebook” documents. CIA General Counsel Muller knew the “North Notebook” documents were connect-the-dots documents with the CIA classified 1980s “FISC Robert” documents. He knew why on March 1, 2004 OIPR Counsel Baker had ratified the CIA FOIA Officer’s decision to withhold the “FISC Robert” documents based on the CIA’s use of FOIA exemption 1 and the “Glomar Response” defense.

38 CIA Director Tenet informed the FISC in his 2004 Declaration of his statutory duty as CIA Director to collect intelligence pursuant to the authority of the FISA of 1978: Pursuant to section 1.3 (d)(5) of the National Security Act, 50 U.S.C. 403- 3(c) (6), I am further charged as DCI with establishing requirements and priorities for foreign intelligence information to be collected under the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. § 1801 et. seq. Id. ¶ 2. http://www.dni.gov/files/0808/TenetDeclaration.pdf. CIA Director Tenet admitted that he was bound by limitations established in President Reagan’s December 4, 1981 E.O. 12333: A more particularized statement of the authorities of the DCI and CIA is set forth in sections 1.5 and 1.8 of Executive Order 12333, 3 C.F.R. 2000 (1981), reprinted in 50 U.S.C. § 401 note, and as amended by Executive Order 13284, 68 Fed. Reg. 4,073 (Jan. 28, 2003). Id. ¶ 3, pp. 3-4. Emphasis added. CIA General Counsel Krass knows from reading CIA Director Tenet’s unredacted 2004 Declaration whether CIA Director Tenet had informed the FISC that the CIA Directors had conducted warrantless searches of the 1982-2004 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ commingled stored content data sets. If not, then this corroborates the plaintiff’s allegation that the 1982-2004 AGs and 1982-2004 FBI Directors had not informed the FISC that the CIA Directors conducted “back door” warrantless surveillance of U.S. citizens stored content data in violation of the “exclusivity provision” of the FISA of 1978. CIA General Counsel Krass knows CIA Director Tenet had been an Article I 1985-1988 staff member of the SSIC and from 1988-1993 the SSIC Staff Director. This is an important time line fact because Article II 1997-2004 CIA Director Tenet did not inform the SSIC of the fact that CIA Directors had conducted “back door” warrantless searches of the E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. CIA General Counsel Krass knows that CIA Director Brennan (2013-) knew what CIA Director Tenet knew in 2004 because he had been CIA Director Tenet’s 2002-2004 CIA Deputy Executive Director. As a result, CIA General Counsel Krass knows that CIA Director Brennan knows whether Article I 1985-1993 SSIC staff member Tenet had not known about the Article II 1982-1993 E.O. 12333 Top Secret “FISA exempt” NSA TSP that was not known by any of the 1985-1993 SSIC Members. This is the key separation of powers issue of when did CIA Director Tenet first know that CIA Directors conducted “back door” warrantless searches of the 1982- 2004 E.O. 2333 Top Secret “FISA Exempt” NSA TSP “haystacks” of U.S. citizens’ content data. CIA General Counsel Krass also knows why this 2004 Declaration of CIA Director Tenet has the 2004 signing date redacted. This is an important date because CIA Director Tenet resigned on July 11, 2004. This was after AAG of the OLC Goldsmith filed his May 6, 2004 Top Secret OLC FISA Memo and prior to OIPR Baker filing his “corrected” October 1, 2004 Robert VII v DOJ Declaration. This is a key time line fact because CIA Director Tenet was succeeded by 2004-2005 CIA Director Porter Goss, the 1997–2004 House Select Intelligence Committee (HSIC) Chairman, and then by 2006-2009 CIA Director General Michael Hayden, the 1999-2005 NSA Director and 2005-2006 Principal Deputy Director of the NDI.

39 N. The August 22, 2014 OIPR Counsel Baker’s “Report Regarding FBI Databases”

On August 22, 2014 DNI Clapper posted the declassified FISC November 1, 2006 “Report Regarding FBI Databases” that was FRCP 11 signed by Counsel for Intelligence Policy James Baker on behalf of AG Gonzales and AAG of the NSD Kenneth Wainstein. This is a “Past is Prologue” document because it establishes the November 1, 2006 mens rea of now-FBI General Counsel James Baker. He knew whether the FISC was informed prior to issuing its 2004-2006 FISC metadata Orders of the Article II Top Secret “FISA secret law” of the May 24, 1984 “OLC Olson FISA Memo” and the May 6, 2004 “OLC Olson FISA Memo.” http://www.dni.gov/files/0808/FISA%20Report%20%5B1%20NOV%202006%5D.pdf. DNI Clapper declassified this FISC “Report Regarding FBI Databases” that was originally classified by OIPR Counsel Baker. See OIPR classification entry on p. 2. However, DNI Clapper reclassified over 90 % of OIPR Counsel Baker’s “declassified” document filed with the FISC. FBI General Counsel Baker knows that on July 21, 2014 the DNI reclassified the document until July 21, 2039 (2014+25=2039). See upper left corner of declassified p. 2. Because of the heavy classification of OIPR Counsel Baker’s “Report Regarding FBI Databases,” the public cannot determine whether OIPR Counsel Baker informed the FISC that FBI Director Judge Webster (1978-1987) and his successors knew that 1982-2006 CIA Directors had conducted “back door” warrantless searches of 1982-2006 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. This is a key NSA and FBI dissemination fact if from 1982-2014 the NSA had been sharing warrantless acquired raw U.S. citizens’ stored content data with the FBI Directors in addition to the CIA Directors. FBI General Counsel Baker knows from his March 1, 2004 reading of the “FISC Robert” documents, whether NSA Directors Lt.General Faurer (1981-1985) and General William Odom (1985-1988) had shared raw Robert content data with FBI Director Judge Webster for use in the joint HHS-DOJ-FBI-CIA “Fraud Against the Government” investigation of Robert that was initiated by HHS General Counsel del Real, as CIA Director Casey’s CIA domestic agent. The plaintiff asserts that Acting Associate AG Delery knows that this “declassified” November 1, 2006 Counsel for Intelligence Policy Baker document is a connect-the-dots document to AG Ashcroft’s March 6, 2002 Memo Re “Intelligence Sharing Procedures for Foreign Intelligence and Foreign Counterintelligence Investigations Conducted by the FBI.” http://epic.org/privacy/terrorism/fisa/ag_mem_03_2002.html. AG Ashcroft’s Memo replaced AG Reno’s July 19, 1995 “wall” memo that had blocked NSA communications to DOJ attorneys re information secured from the NSA analysts conducting warrantless data mining of the 1982-1995 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. AG Ashcroft’s 2002 Memo reinstated the pre-1995 DOJ procedures that were in place when the CIA and the FBI had made Robert the target of the 1980s NSA TSP. FBI General Counsel Baker (2014-) knows whether his November 1, 2006 “Report Regarding FBI Databases” informed the FISC that there were archived “FBI data bases” that were created from the 1982-2006 E.O. 12333 Top Secret “FISA exempt” NSA TSP. If so, then FBI General Counsel Baker knows the importance of FBI Director Comey reading the plaintiff’s pending February 7, 2014 de novo FBI FOIA request for the # 7) FBI Robert VII v DOJ “FISC Robert” documents that reveal whether the FBI copy of the “FISC Robert” documents are in the FBI data archives. See §§ F-H. .http://snowflake5391.net/2_7_14_-FBI_FOIA_request.pdf.

40 O. The August 25, 2014 Intercept Snowden leaked NSA ICREACH program documents

On August 25, 2014, investigative reporter Glenn Greenwald’s The Intercept website published Snowden leaked documents which explained the NSA ICREACH program that provided Intelligence Community (IC) access to vast pools of data from warrantless E.O. 12333 “FISA exempt” foreign intelligence searches. The plaintiff asserts that the ICREACH program is evidence that corroborates his allegations made in his 1985-2014 FOIA litigation: He was the target of an NSA TSP which conducted warrantless surveillance of his telephone calls with his aged, blind, and disabled clients, and used that information for the domestic law enforcement purposes of a “Fraud Against the Government” investigation of an attorney to eliminate his challenges to the “nonacquiescence” policies of CIA Director Casey’s illegal CIA domestic HHS General Counsel del Real. He alleged that the CIA plan was to protect the CIA domestic “sources and methods” of using HHS funds to pay for CIA domestic “special activities at IMC and NSA conducted without § 413 (a) of the National Security Act Notification to Congress.

On August 25, 2014, The Intercept published contributor Ryan Gallagher’s “The Surveillance Engine: How the NSA Built Its Own Secret Google,” which explained the NSA ICREACH program. https://firstlook.org/theintercept/article/2014/08/25/icreach-nsa-cia-secret- google-crisscross-proton/. Gallagher described the “Google-like” searches by the IC analysts that includes FBI law enforcement analysts accessing the NSA data bases:

The National Security Agency is secretly providing data to nearly two dozen U.S. government agencies with a “Google-like” search engine built to share more than 850 billion records about phone calls, emails, cellphone locations, and internet chats, according to classified documents obtained by The Intercept.

The documents provide the first definitive evidence that the NSA has for years made massive amounts of surveillance data directly accessible to domestic law enforcement agencies. Planning documents for ICREACH, as the search engine is called, cite the Federal Bureau of Investigation and the Drug Enforcement Administration as key participants. Id. Underline Emphasis added.

Gallagher reported that that the NSA intended that there would be IC community information-sharing access to the “vast pool” of E.O. 12333 ICREACH stored data: Unlike the 215 database, which is accessible to a small number of NSA employees and can be searched only in terrorism-related investigations, ICREACH grants access to a vast pool of data that can be mined by analysts from across the intelligence community for “foreign intelligence”—a vague term that is far broader than counterterrorism. Gallagher reported the DNI response to these E.O. 12333 Snowden leaked documents:

In a statement to The Intercept, the Office of the Director of National Intelligence confirmed that the system shares data that is swept up by programs authorized under Executive Order 12333, a controversial

41 Reagan-era presidential directive that underpins several NSA bulk surveillance operations that monitor communications overseas. The 12333 surveillance takes place with no court oversight and has received minimal Congressional scrutiny because it is targeted at foreign, not domestic, communication networks. But the broad scale of 12333 surveillance means that some Americans’ communications get caught in the dragnet as they transit international cables or satellites—and documents contained in the Snowden archive indicate that ICREACH taps into some of that data. Id. Emphasis added.

Gallagher cited to an 2006 classified Memo that revealed that the NSA ICREACH program was approved by the first DNI Director John Negroponte (2005- 2007) and was developed by NSA Director General Keith Alexander (2005-2014): The mastermind behind ICREACH was recently retired NSA Director Gen. Keith Alexander, who outlined his vision for the system in a classified 2006 letter to the then-Director of National Intelligence John Negroponte. The search tool, Alexander wrote, would “allow unprecedented volumes of communications metadata to be shared and analyzed,” opening up a “vast, rich source of information” for other agencies to exploit. By late 2007 the NSA reported to its employees that the system had gone live as a pilot program. Id. Emphasis added. Gallagher reported that the NSA considered ICREACH program as a “one-stop shopping tool” upgrade for analyzing information from the existing NSA and CIA search engines: The NSA described ICREACH as a “one-stop shopping tool” for analyzing communications. The system would enable at least a 12-fold increase in the volume of metadata being shared between intelligence community agencies, the documents stated. Using ICREACH, the NSA planned to boost the amount of communications “events” it shared with other U.S. government agencies from 50 billion to more than 850 billion, bolstering an older top-secret data sharing system named CRISSCROSS/PROTON, which was launched in the 1990s and managed by the CIA. Id. Emphasis added. Gallagher reported that the ICREACH program would access E.O. 12333 data that had been captured and stored as U.S. citizens’ “minimization” content data:

However, the documents make clear that it is not only data about foreigners’ communications that are available on the system. Alexander’s memo states that “many millions of…minimized communications metadata records” would be available through ICREACH, a reference to the process of “minimization,” whereby identifying information—such as part of a phone number or email address—is removed so it is not visible to the analyst. NSA documents define minimization as “specific procedures to minimize the acquisition and retention [of] information concerning unconsenting U.S. persons”—making it a near certainty that ICREACH gives analysts access to millions of records about Americans. The

42 “minimized” information can still be retained under NSA rules for up to five years and “unmasked” at any point during that period if it is ever deemed necessary for an investigation. Id. Emphasis added.

Gallagher reported how the ICREACH program facilitated law enforcement agencies using data secured from the NSA TSP for the “parallel construction” of information that was then used for domestic law enforcement purposes: Parallel construction involves law enforcement agents using information gleaned from covert surveillance, but later covering up their use of that data by creating a new evidence trail that excludes it. This hides the true origin of the investigation from defense lawyers and, on occasion, prosecutors and judges—which means the legality of the evidence that triggered the investigation cannot be challenged in court. Id. Emphasis added Gallagher reported on the fact issue of whether President Obama’s Review Group had been informed of the DNI’s approval of the NSA’s ICREACH program: Peter Swire, one of the five members of the review panel, told The Intercept he could not comment on whether the group was briefed on specific programs such as ICREACH, but noted that the review group raised concerns that “the need to share had gone too far among multiple agencies.” Id. Emphasis added. The plaintiff asserts that the DNI and NSA ICREACH program is corroborative evidence of the plaintiff’s almost incredible allegation that HHS General Counsel del Real (1981-1985) had been CIA Director Casey’s illegal CIA domestic agent who used the CIA sources and method of “parallel construction” data when in 1984 he initiated the sham “Fraud Against the Government” investigation of Robert. The CIA’s purpose of this “law enforcement” proceeding was to incarcerate and disbar an attorney who was challenging the Jackson v Schweiker “nonacquiescence” policy of HHS General Counsel del Real which was a CIA domestic funding source for illegal CIA domestic “special activities” that could not be funded with classified OMB Budget funds because the CIA domestic “special activities” were prohibited by E.O. 12333. The plaintiff asserts that CIA General Counsel Krass (2014-) knows that FBI General Counsel Baker (2014-), the 1996-2006 OIPR Counsel, knows that DOD General Counsel Preston (2013), the 2009-2013 CIA General Counsel, knew Robert had been the 1980s illegal target of the NSA TSP and the “Fraud Against the Government” of joint HHS-FBI- DOJ-CIA domestic law enforcement task force. FBI General Counsel Baker knew as OIPR Counsel that 1993-1995 DOD Principal Deputy General Counsel Preston was the 1995-1998 DOJ DAAG of the Civil Division supervising attorney in Gordon v. Shalala, 55 F.3d 101 (2d Cir. 1995), cert. den, 517 U.S. 1103 (1996), in which he defended the 1982-1996 Jackson “nonacquiescence” policy of HHS General Counsel del Real, an illegal CIA domestic agent. See § CC below.

Acting Associate AG Delery knows that FBI General Counsel Baker will not lie to FBI Director Comey (2013-), as to whether the Robert VII v DOJ “FISC Robert” documents reveal that FBI Director Judge Webster knew HHS General Counsel del Real was a CIA domestic agent. Hence, the plaintiff’s belief that CIA General Counsel Krass, FBI General Counsel Baker, and DOD General Counsel Preston will all recommend that Acting Associate AG Delery initiate Robert II v CIA and DOJ quiet settlement negotiations in October, 2014 and end this litigation.

43 P. AAG of the Civil Division Delery’s September 2, 2014 ACLU v Clapper oral argument

On September 2, 2014, the Second Circuit held the ACLU v Clapper, Docket No. 14- 42, oral argument. This was an important oral argument because it provided AG Holder and AAG of the Civil Division Stuart Delery with an opportunity to inform the Second Circuit whether the Supreme Court’s June 25, 2014 Riley v California unanimous decision re the Fourth Amendment applying to the stored data in a cell phone, changed the Article II “FISA secret law” of the May 24, 1984 “OLC Olson FISA Memo” and the March 18, 2011 reclassified Top Secret May 6, 2004 “OLC Goldsmith FISA Memo.” The Brief for the Defendants-Appellees of AG Eric Holder, AAG of the Civil Division Stuart Delery, and SDNY U.S. Attorney Preet Bharara, had been written on April 10, 2014 prior to the June 25, 2014 Riley v California Fourth Amendment decision. See plaintiff’s 7-11-14 letter to Judge Seybert.

The ACLU v Clapper Defendants-Appellees April 10, 2014 Brief had made the USG’s standard 1979-2014 Smith v Maryland, 442 U.S. 735 (1979), Fourth Amendment argument:

The Supreme Court has rejected the premise of plaintiffs’ Fourth Amendment argument, holding that there is no reasonable expectation of privacy in the telephone numbers dialed in order to connect a telephone call. In Smith, the Supreme Court held that the government’s recording of the numbers dialed from an individual’s home telephone, through the offsite installation of a pen register, does not constitute a search under the Fourth Amendment. Smith, 442 U.S. at 743-44. The FISC has correctly relied on the holding of Smith to conclude that the acquisition from telecommunications companies of business records consisting of bulk telephony metadata is not a search for purposes of the Fourth Amendment. See JA 313; 8/29/13 FISC Order at 6. Id. 41-42. Emphasis added. https://www.aclu.org/sites/default/files/assets/2014-04-10_clapper_govt- opposition-brief.pdf.

AAG of the Civil Division Stuart’s Delery’s very impressive September 2, 2014 ACLU v Clapper oral argument 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. He did not discuss Riley v California or the Article II “FISA secret law.”

AAG of the Civil Division Delery informed the panel of the Congressional “ratification” of the metadata program. He argued that AG Holder provided Congress details of the 2009-2014 metadata program. He explained how AG Holder had provided a classified document re the metadata program to the Senate and House Judiciary and Select Intelligence Committees. The AG made the document available for any Congressman to read before voting on the metadata amendments to the FISA. See the C-span clip “Judge Lynch and Delery” re his Congressional “ratification” argument. http://www.c-span.org/video/?c4507509/judge-lynch-stuart-delery.

AAG of the Civil Division Delery emphasized the Article III FISC decisions approved the Article II metadata program. He noted FISC Orders had modified the metadata program based on compliance issues that AG Holder had presented to the FISC. See C-Span clip “SA” of questions by Circuit Judges Lynch and Sack. http://www.c-span.org/video/?c4507497/sa.

44 However, AAG Delery did not inform the Second Circuit panel that no AG had informed the FISC of the Article II “FISA secret law” of the May 24, 1984 “OLC Olson FISA Memo” and the March 18, 2011 reclassified Top Secret May 6, 2004 “OLC Goldsmith FISA Memo.” Whereas AAG of the Civil Division Delery could make his Article I “ratification” argument that all 535 Members of Congress had an opportunity to read the Top Secret Memo that AG Holder had provided to the SSIC and HSIC, that “ratification” argument could not be made re the Article III FISC because as of September 2, 2014 none of the FISC Judges knew of the Article II “FISA secret law” as explained in the Top Secret 1984 and 2004 OLC FISA Memos. See § Z below.

As a result, AAG of the Civil Division Delery knew on September 2, 2014 that the Second Circuit ACLU v Clapper Second Circuit Judges would be making their decisions without knowing that the FISC Judges had issued their 2004-2014 metadata Orders without knowing that the 1982-2014 CIA Directors’ analysts were conducting “back door” warrantless searches of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. He also knew the Second Circuit Judges did not know whether the July, 2014 Top Secret “OLC Riley v California Memo” incorporated by reference the May 24, 1984 “OLC Olson FISA Memo” with its Article II “FISA secret law” that the Fourth Amendment does not apply to NSA “constitutionally seized” stored content data.

On September 2, 2014, AAG of the Civil Division Delery also knew that AG Holder had decided not to inform the FISC whether the Riley v California Fourth Amendment decision changed the Article II “FISA secret law” explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo.” He also knew why DNI Clapper made the August 11, 2014 and August 22, 2014 “cherry pricking” decisions not to declassify the 1984, 2004, and 2014 Top Secret OLC FISA Memos when in response to the Snowden leaks he had declassified the carefully selected FISC metadata Orders and other heretofore Top Secret classified documents. See §§ D, M, N above.

AAG of the Civil Division Delery knew that the May 24, 1984 Top Secret “OLC Olson FISA Memo” was identified in a 2013 Snowden released November 20, 2007 Memorandum for the Attorney General from AAG of the National Security Division Kenneth Wainstein to AG Michael Mukasey (November 7, 2007-January 20, 2009). He knew AAG of the NSD Wainstein sent a copy of the November 20, 2007 memo to Acting AAG of the OLC Stephen Bradbury:

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

45 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 plaintiff asserts that DNI Clapper’s August 11 and August 22, 2014 cherry-picking decisions to declassify those Top Secret metadata documents and not declassify the May 24, 1984 “OLC Olson FISA Memo, ” were decisions intended to continue to make the 2014 FISC the “handmaiden” of AG Holder, DNI Clapper, and CIA Director Brennan. “Under no circumstances should the Judiciary become the handmaiden of the Executive.” Doe, et. al. v Mukasey, Mueller, and Caproni, 549 F 3d 861, 870 (2d Cir. 2008). See §§ R, S, Y, Z below.

After the September 2, 2014 oral argument, the plaintiff respectfully and specifically asked AAG of the Civil Division Delery whether an OLC decision had been made as to whether the Supreme Court’s Riley v California holding re the storage of the data in a U.S. citizen’s cell phone, applies to the E.O. 12333 “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. AAG of the Civil Division Delery answered this direct question with an “I cannot answer that question” answer. The plaintiff interpreted that answer as being a “Glomar Response” answer. On September 15, 2014, he filed a FOIA request for the “OLC Riley v California Memo” to formally learn whether this was a “Glomar Response” as was the DOJ decision to withhold the Robert VII v DOJ “FISC Robert” documents. See § X below.

The FOIA requester’s September 2, 2014 question of AAG of the Division Delery was based on the litigation position of AAG of the Civil Division Peter Keisler (2003-2007) throughout Robert VII v DOJ on behalf of AG Ashcroft (2001-2004) and AG Gonzales (2005- 2007). In Robert VII v DOJ, AAG of the Civil Division Keisler and OIPR James Baker defended the CIA FOIA Officer’s decision to use FOIA exemption 1 and the “Glomar Response” defense to withhold the 1980s “FISC Robert” documents. See OIPR Counsel Baker’s October 1, 2004 Robert VII v DOJ “corrected” Declaration. http://www.snowflake5391.net/baker.pdf.

The FOIA requester’s September 2, 2014 question to AAG of the Civil Division Delery was also based on the plaintiff’s belief that Supreme Court’s Riley v California decision has provided AG Holder with a graceful opportunity to end the 1984-2014 legal “Ponzi scheme” of the Top Secret Article II “FISA secret law” that has been based on the September 24, 1984 “OLC Olson FISA Memo.” The plaintiff believed that if AG Holder read the Top Secret “OLC Riley v California Memo,” then he would conclude that it was simply wrong because of the Supreme Court’s 2014 expectation of privacy and stored data in a cell phone analysis. The plaintiff believed that AAG of the Civil Division Delery would recommend that AG Holder rescind the May 24, 1984 “OLC Olson FISA Memo,” the March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo, and the “OLC Riley v California FISA Memo.” The plaintiff also believed that AAG of the Civil Division Delery would seek the declassification of the March 18, 2011 reclassified May 6, 2004 “OLC Goldsmith FISA Memo in order that he could cite to the OLC Memo in a subsequent FRCP 11 signed submission to the panel.

46 Q. AG Holder’s September 5, 2014 appointment of Acting Associate AG Delery

On September 5, 2014, AG Holder appointed AAG of the Civil Division Delery as Acting Associate AG to replace Associate AG Tony West who would be formally resigning on September 15, 2014. It was reported that as Acting Associate AG, he would be the top candidate to be President Obama’s Nominee to be permanent Associate AG. If so, then the “OLC Riley v California Memo” becomes a “smoking gun” document if, as alleged by the Robert II v CIA and DOJ plaintiff, Acting AAG of the OLC Thompson determined that the Supreme Court’s June 25, 2014 Riley v California decision re the Fourth Amendment applying to stored data of a U.S. citizen’s cell phone, does not apply to the CIA “back door” warrantless surveillance of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data sets that in 2012 were transferred in to the Utah Data Center.

AG Holder’s September 5, 2014 Press Release, “Attorney General Holder Announces Stuart Delery to Serve as Acting Associate Attorney General,” noted that AAG of the Civil Division Delery had been a “lawyer’s lawyer” in part because of his oral argument expertise:

Stuart is a lawyer’s lawyer who, even as he has risen to the leadership of the department, continues to thrive in the court setting and routinely is called on to personally argue the most complex cases. Id. Emphasis added. http://www.justice.gov/opa/pr/2014/September/14-ag-940.html.

On September 6, 2014, NYS Times reporter Matt Apuzzo reported in “Justice Dept. Promotes Lawyer to No. 3 Post,” that AG Holder’s appointment came three days after AAG of the Civil Division had made his ACLU v Clapper oral argument and the most likely person that President Obama will nominate as the Senate confirmed Associate AG: Earlier this week, Mr. Delery argued before a federal appeals court in New York that the National Security Agency had the authority to seize and store the phone records of millions of Americans without any suspicion of wrongdoing. As acting associate attorney general, Mr. Delery becomes the top candidate for the permanent job, which requires a presidential nomination. Id. Emphasis added. The DOJ website explains the Associate AG’s duties:

The Office of the Associate Attorney General advises and assists the Attorney General and the Deputy Attorney General in formulating and implementing Departmental policies and programs pertaining to a broad range of civil justice, federal and local law enforcement, and public safety matters. The Office oversees the following DOJ components: Antitrust Division, Civil Division, Civil Rights Division, Environment and Natural Resources Division, Tax Division, Office of Justice Programs, Community Oriented Policing Services (COPS), Community Relations Service, Office of Dispute Resolution, Office on Violence Against Women, Office of Information Policy, Executive Office for U.S. Trustees, and the Foreign Claims Settlement Commission. Id. Emphasis added. http://www.justice.gov/asg/about-oaag.html

47 Acting Associate AG Delery has supervisory duties as to the Office of the Civil Division and Office of Information and Privacy (OIP). On September 15, 2014, the plaintiff placed him on Notice that the four CIA classified 1985 “North Notebook” documents were connect-the- dots documents with Robert VIII v DOJ, HHS, and SSA case file notes and e-mails. These documents reveal how the President’s Article II Commander in Chief “inherent” authority to protect the nation from terrorists, has been interpreted to allow for the 1982-2014 CIA Directors to conduct CIA domestic covert operations in violation of the explicit prohibition of CIA domestic covert operations in the National Security Act of 1947 and E.O. 12333. See § W below

On September 15, 2014, the plaintiff also placed Acting Associate AG Delery on Notice of the September 15, 2014 OLC FOIA request for the “OLC Riley v California” Memo. The plaintiff informed him that the OLC FOIA Officer and OIP Director Melanie Pustay had not docketed or processed the December 3, 2013 OLC FOIA request for the release of the May 24, 1984 Top Secret “OLC Olson FISA Memo” and the March 18, 2011 reclassified May 6, 2004 “OLC Goldsmith FISA Memo.” http://snowflake5391.net/12_3_13_FISA_MEMOS.pdf. The plaintiff also placed him on Notice of the plaintiff’s February 7, 2014 complaint filed with DOJ Inspector General (IG) Michael Horowitz against OIP Director Pustay for “defrauding” President Obama. He informed Acting Associate AG Delery that this IG complaint was not docketed or processed by the OIG IG staff. http://www.snowflake5391.net/WP_IG.pdf. See § X below.

The plaintiff has informed Acting Associate AG Delery that if there is not a Robert II v CIA and DOJ quiet settlement, then the plaintiff will file a Robert VIII v DOJ, HHS, and SSA Motion with Judge Garaufis seeking his permission to file a FOIA complaint seeking the release of the December 3, 2013 FOIA requested May 24, 1984 Top Secret “OLC Olson FISA Memo” and the March 18, 2011 reclassified May 6, 2004 “OLC Goldsmith FISA Memo.” He also informed him that this putative Robert VIII v DOJ, HHS, and SSA complaint would seek the release of the September 15, 2014 OLC FOIA requested “OLC Riley v California Memo.” These OLC documents are part of a mosaic of connect-the-dots documents that reveal whether AG Holder approved CIA Director Brennan’s warrantless searches of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data sets without the knowledge of the Article I Congress and Article III FISC. See § BB below.

Acting Associate AG Delery knows that the Second Circuit’s multiple Orders in NY Times v DOJ established the procedures for Article III review of a FOIA requested Top Secret OLC opinion. He knows that if the Second Circuit FOIA process is followed as to the FOIA requests for the 1984, 2004, and 2014 Top Secret OLC FISA Memos, then those documents will be subject to in camera and ex parte review by the Second Circuit. See § BB below.

If Acting Associate AG Delery performs his due diligence and learns who ordered the OLC FOIA Officer and OIP Director Pustay not to docket and process the plaintiff’s December 3, 2013 FOIA request for the 1984 and 2004 Top Secret OLC FISA Memos, then he may reconsider plaintiff’s quiet settlement offer. This is especially the case if the December 3, 2013 OLC FOIA request case file notes and e-mails reveal that OIP Director Pustay’s “command and control” officer knew the 1984 and 2004 OLC FISA Memos corroborated plaintiff’s grave allegation that USG attorneys in Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA had made Judge Garaufis, the Second Circuit, and the Supreme Court the “handmaidens” of the 2004-2014 AGs because they withheld facts re the CIA domestic “covert operation” at NSA.

48 R. The September 5, 2014 re-reclassification of the May 6, 2004 “OLC Goldsmith FISA Memo”

On September 5, 2014, AG Holder declassified parts of the March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” However, he re-reclassified significant parts of the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” As a result, the “OLC Riley v California Memo” takes on “smoking gun” importance because the September 5, 2014 declassified parts of AAG of the OLC Jack Goldsmith’s May 6, 2004 OLC FISA Memo reveal the implementation of May 24, 1984 Top Secret “OLC Olson FISA Memo” with its “constitutionally seized” standard applied to warrantless searches of 1982-2004 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data sets. https://www.aclu.org/sites/default/files/assets/olc_stellar_wind_memo_-_may_2004.pdf

On September 7, 2014, NY Times reporter Charlie Savage reported in “Redactions in U.S. Memo Leave Doubts on Data Surveillance Program,” that 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 on questions raised by the declassification this OLC document: 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. The declassified document reveals that AAG of the OLC Goldsmith’s OLC opinion explained how the Top Secret STELLAR WIND program was an E.O. 12333 program:

After describing the initiation of STELLAR WIND, modifications to the program, and its current operation, including the periodic reauthorization by the President, this memorandum provides a legal analysis of the program in four parts. In Part I, we briefly examine STELLAR WIND under E.O. 12,333, 46 Fed. Reg. 59,941 (December 4, 1981), the Executive Order governing the responsibilities and conduct of various entities in the intelligence community . –redacted-.” Id. 2. Emphasis added.

AAG of the OLC Goldsmith draws his conclusion that the STELLAR WIND program is constitutional based on the President’s Article II Commander in Chief “inherent” authority to conduct warrantless surveillance of enemies that could not be restricted by the FISA of 1978. His May 6, 2004 analysis was based on the post-9/11 September 18, 2001 AUMF:

49 We conclude that in the circumstances of the current armed conflict with al Qaeda, the restrictions set out in FISA, as applied to targeted efforts to intercept the communications of the enemy in order to prevent further armed attacks on the United States, would be an unconstitutional infringement the constitutionally assigned powers to the President. The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President’s exercise of authority. - redacted--. Id. 3-4. Emphasis added

AAG of the OLC Goldsmith determined that the there was no Fourth Amendment violation by the implementation of both the STELLAR WIND content and metadata programs.

Finally, in Part V, we examine STELLAR WIND content collection and meta data collection (for both telephony and e-mail) under the requirements of the Fourth Amendment. Although no statutory requirements prevent the President from conducting surveillance under STELLAR WIND must still comply with the requirements of the Fourth Amendment. We reaffirm our conclusion (1) that as to content collection, STELLA WIND activities come within an exception to the Warrant Clause and satisfy Fourth Amendment’s requirements of reasonableness, and (ii) that meta data collection does not implicate the Fourth Amendment. The activities authorized under STELLAR WIND are thus constitutionally permissible. Id. 5. Emphasis added.

The Robert II v CIA and DOJ plaintiff asserts that the redacted sections of this September 5, 2014 re-reclassification of the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” will have “smoking gun” significance because the September 5, 2014 re-reclassification was made after the Supreme Court’s June 25, 2014 Riley v California Fourth Amendment holding re stored data in a U.S. citizen’s cell phone. Upon information and belief, AAG of the OLC Thompson recommended that AG Holder re-reclassify all sections referring to the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” because his July, 2014 “OLC Riley v California Memo” had adopted the “constitutionally seized” stored content data Fourth Amendment analysis as explained in the May 24, 1984 OLC Memo that AAG of the OLC Theodore Olson 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.

Whereas AAG of the OLC Goldsmith had the benefit of the September 18, 2001 AUMF statute to bolster his argument that any interpretation of the “exclusionary provision” of the FISA to limit the President’s authority to conduct warrantless searches to locate data of terrorists was unconstitutional, AAG of the OLC Olson had only the “exclusivity provision” of the FISA. Upon information and belief, the redacted portions of the September 5, 2014 re-reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” reveal AAG of the OLC Olson’s naked pre- 9/11 determination that the “exclusivity provision” of the FISA is unconstitutional if it encroaches on the President’s ability to search U.S. citizens’ comingled stored content data. If so, then this OLC FISA Memo rejects the Riley v California Fourth Amendment analysis.

50 AAG of the Civil Division Delery knew on September 2, 2014 when he made his ACLU v Clapper oral argument that on March 18, 2011, AG Holder had made the decision to re- reclassify the May 6, 2004 “OLC Goldsmith FISA Memo” and redact the “FISA secret law” that the Fourth Amendment did not apply to the STELLAR WIND metadata and content. On March 11, 2011, he was the Senior Counselor of AG Holder. This AAG of the Civil Division Delery time line fact raises the question of whether he knew on September 2, 2014 that the July, 2014 “OLC Riley v California Memo” continued the May 24, 1984 Top Secret “OLC Olson FISA Memo” “constitutionally seized” standard that the Fourth Amendment does not apply to “constitutionally seized” content data. If so, then he knew whether AG Holder made the July, 2014 decision that CIA Director Brennan could continue, without the knowledge of the FISC, to conduct “back door” warrantless searches of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data sets.

Acting Associate AG Delery knows whether the September 5, 2014 redaction of most of p. 4 is because there is a discussion of 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. If so, then he knows the “smoking gun” significance of the June 25, 2014 Riley v California Fourth Amendment analysis that is based on the nature of the “stored” data in a cell phone. AAG of the Civil Division Delery knew during his September 2, 2014 ACLU v Clapper oral argument of exponentially more powerful storage capability of the STELLAR WIND program to search the universe of 1982- 2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ commingled stored content data sets See 8-15-12 Robert II v CIA and DOJ Status Affidavit.

The plaintiff does not believe that it was coincidence that on September 5, 2014, after the September 2, 2014 oral argument in ACLU v Clapper, AG Holder re-declassified parts of the March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” Acting Associate AG Delery knows whether he participated in the DOJ March 18, 2011 and post-Riley v California September 5, 2014 decisions to twice declassify and reclassify the May 6, 2014 Top Secret “OLC Goldsmith FISA Memo” to redact any discussion of AAG of the OLC Olson’s pre- 9/11 May 24, 1984 Memo with its “constitutionally seized” data Fourth Amendment analysis.

Hence, the importance of plaintiff’s FOIA requests for the Top Secret 1) May 24, 1984 “OLC Olson FISA Memo,” 2) the May 6, 2004 “OLC Goldsmith FISA Memo,”, and 3) July, 2014 “OLC Riley v California Memo” documents to line up the declassified documents in order to read the AAGs of the OLC Youngstown Sheet and Tube Co. v Sawyer, 434 U.S. 937 (1952), analysis of the constitutionality of the “exclusivity provision” of the FISA. The FISC, the Second Circuit, and the public should all know whether the 1982-2014 “FISA secret law” is based on AAGs of the OLC Olson, Goldsmith, and (Acting) Thompson pre-9/11 and post-9/11 opinions that the “exclusivity provision” of the FISA is unconstitutional. See the 10-3-13 Robert Review Group Comments §§ G-I. http://snowflake5391.net/review_group_comments.pdf

The plaintiff believed that Acting Associate AG Delery as a “lawyer’s lawyer” knew his difficult litigation position in ACLU v Clapper. As a result, the plaintiff believed that he would recommend that AG Holder accept the Robert II v CIA and DOJ quiet settlement offer and recommend that AG Holder apply the Fourth Amendment to the “FISA exempt” NSA TSP. If that happened, then the plaintiff would withdraw his Robert II v CIA and DOJ complaint.

51 S. The September 5, 2014 declassification of the July 16, 2004 OLC Goldsmith STELLAR WIND Memo that cited to the Supreme Court’s Hamdi v Rumsfeld decision

On September 5, 2014, AG Holder declassified AAG of the OLC Goldsmith’s Top Secret July 16, 2004 Memorandum For the Attorney General “Re: STELLAR WIND - Implications of Hamdi v Rumsfeld.” This was both a declassified and a reclassified “FISA secret law” memo. This July 16, 2004 OLC Top Secret “FISA secret law” memo makes the “OLC Riley v California Memo” a “smoking gun” OLC “FISA secret law” Memo because AAG of the OLC Goldsmith explained how the STELLAR WIND NSA TSP was based on both the post-9/11 statutory Authorization for Use of Military Force (AUMF) and the President’s Article II Constitutional Commander in Chief “inherent authority” to conduct both warrantless metadata and content searches. http://s3.documentcloud.org/documents/1284206/a-memo-from-the-office-of-the-legal- counsel.pdf

AAG of the Civil Division Delery knew on September 2, 2014 when he made his Second Circuit ACLU v Clapper oral argument, whether the Supreme Court’s June 25, 2014 Riley v California decision directly addressed the issue of government warrantless surveillance that the Supreme Court’s June 28, 2004 Hamdi v Rumsfeld decision did not address. This is an important time line fact because AAG of the OLC Goldsmith’s extrapolation of the June 28, 2004 Hamdi v Rumsfeld decision to his legal defense of the STELLAR WIND NSA TSP. AAG of the OLC Goldsmith cherry picked parts of the Hamdi opinions of five of the Supreme Court Justices that did not specifically address the Fourth Amendment warrantless content wiretapping issue. AAG of the Civil Division Delery knows the Second Circuit’s ACLU v Clapper retroactive application to the NSA TSP of the 2014 Riley v California stored data on a cell phone decision, would be more on point to the Fourth Amendment issue of warrantless wiretapping, than AAG of the OLC Goldsmith’s 2004 musings as to the application of the five 2004 Hamdi v Rumsfeld opinions.

AAG of the OLC Goldsmith explained at n. 1 that the OLC Rumsfeld v Hamdi application of his Article II Commander in Chief’s “inherent authority” theory, applied to warrantless NSA TSP surveillance. This was an alternative constitutional basis to the September 18, 2001 AUMF statutory basis for the NSA STELLAR WIND warrantless surveillance of U.S. citizens’ stored metadata and stored content data as explained in AAG of the OLC Goldsmith’s May 6, 2004 Top Secret “Review of the Legality of the STELLAR WIND Program” Memo:

In the alternative, we concluded that (1) even if the Congressional Authorization could not be understood as a clear authorization for signals intelligence activity, it creates, at a minimum, an ambiguity significant enough to warrant application of the canon of constitutional avoidance and therefore to construe relevant portions of the Foreign Intelligence Surveillance Act (''FISA "), as amended, 50 U.S.C. §§ 1801·1862 (2000 & Supp. 12001), and related relevant provisions in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended 18 U.S.C. §§ 2510-2521 ('"Title III") (2000 & Supp.I 2001), so as not to prohibit the content –redacted- collection activity of STELLAR WIND, and (2) even if the statutory restrictions in FlSA and Title III are construed to apply and prohibit such collection activity, those statutes would unconstitutionally infringe on the President's exclusive authority as the

52 sole organ of the Nation in foreign affairs and as Commander in Chief in time of war to protect the Nation from attack. See STELLAR WIND opinion, Parts II.B.2 II.C- redacted- that all STELLAR WIND collection is consistent with the Fourth Amendment. See Id. Parts -redacted- V. Id. p.1, n. 1. Emphasis Added.

AAG of the Goldsmith admitted the AUMF does “not specifically refer to intelligence collection” and that the FISA contains “separate statutory restrictions on the use of electronic surveillance inside the United States for foreign intelligence purposes.” Yet, he concluded that the FISA “exclusivity provision” does not apply to the 2001 STELLAR WIND program:

Because the interception of enemy communications for intelligence purposes is also a fundamental and long-accepted incident of war, the Congressional Authorization likewise provides authority for STELLAR WIND targeted content – redacted--Hamdi supports this conclusion even though the Authorization does not specifically refer to intelligence collection and notwithstanding the separate statutory restrictions on the use of electronic surveillance inside the United States for foreign intelligence purposes. See generally 50 U.S.C. §§ 1801-1810; STELLAR WIND Opinion, at 19-22-redacted. Id. 4-5 Emphasis added.

AAG of the Goldsmith explains why he concluded that the AUMF trumped the FISA:

As demonstrated, the interception of enemy communications for intelligence purposes is a fundamental and accepted incident of war, consistent with law-of-war principles and conducted throughout our Nation's history. As such, the electronic surveillance of al Qaeda-related communications fits comfortably within the Hamdi plurality's analysis of measures authorized by Congress after the terrorist attacks of September 11, 2001. The Congressional Authorization allowing such surveillance must therefore trump FISA's otherwise applicable prohibitions, just as it trumped the explicit prohibition of unauthorized detention in 18 U.S.C.§ 400l(a). Id. 7. Emphasis added.

AAG of the Goldsmith’s concluded that Congress, without saying so, authorized the warrantless collection and retention of U.S. persons’ commingled stored content and metadata:

For the foregoing reasons, the plurality opinion in Hamdi v Rumsfeld, as well as Justice Thomas’ agreement with the conclusion regarding the Congressional Authorization, support our prior conclusion that content – redacted- undertaken as part of the STELLAR WIND program –redacted- authorized by Congress. Id. 8. Emphasis added.

The September 5, 2014 declassification and reclassification of AAG of the OLC July 16, 2004 STELLAR WIND Memorandum is cumulative evidence of why the 535 Members of Congress should know the “FISA secret law.” They should read the OLC FISA Memos when they consider FISA amendments re the NSA’s storage of metadata, but not stored content data.

53 T. The September 5, 2014 posting of declassified Iran Contra documents

On September 5, 2014, the National Security Archive posted on its website an “Iran- Contra Revisited” analysis which included posting of eight declassified Iran-Contra documents. http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB483/. This analysis was triggered by the September 15, 2014 release date of Malcom Byrne’s book Iran-Contra: Reagan’s Scandal and the Unchecked Abuse of Presidential Power. http://www.kansaspress.ku.edu/byrira.html. That book provided revisited the Tower Commission and the joint House-Senate Iran Contras Report. The National Security Archives reviewed Byrne’s book: Iran-Contra concludes that the affair could not have occurred without awareness and approval at the very top of the U.S. government. Byrne reveals an unmistakable pattern of dubious behavior — including potentially illegal conduct by the president, vice president, the secretaries of state and defense, the CIA director and others — that formed the true core of the scandal. Given the lack of meaningful consequences for those involved, the volume raises critical questions about the ability of our current system of checks and balances to address presidential abuses of power, and about the possibility of similar outbreaks in the future. Id. Emphasis added. These declassified Iran-Contra documents provide context to the four one-page CIA classified 1985 Robert II v CIA and DOJ “North Notebook” documents. The plaintiff has asserted that the “North Notebook” documents are part of a mosaic documents that reveal whether AG Meese and FBI Director Judge Webster knew that CIA Director Casey was conducting an ongoing illegal CIA domestic “special activity” at International Medical Center, Inc, in violation of E.O. 12333 prohibition on CIA domestic covert operations The plaintiff asserts that the National Security Archive’s Document 8: National Security Planning Group (NSPG) Meeting, Subject: Central America, February 20, 1987, is a connect-the-dots document to the “North Notebook” documents. This February 20, 1987 document indicates that this meeting was attended by President Reagan, VP Bush, DOD Secretary Weinberger, AG Meese, CIA Deputy Director Robert Gates, and President Reagan’s Chief of Staff Donald Regan. This was four days prior to February 24, 1987 when Mr. H. Ross Perot handed President Reagan the “Perot” documents that reveal alleged “chicanery & corruption” at DOD and the CIA. This was eight days before the February 28, 1987 release of the Article II Tower Commission Report that purported to explain the Iran-Contras Affair. This declassified February 20, 1987 Iran Contra document is a connect-the-dots document to the “Peter Keisler Collection” and “Perot” documents that are being withheld pursuant to the executive privilege. They are now subject to President Obama’s January 21, 2009 E.O. E.O. 13489, Presidential Records, executive privilege decision whether to ratify the executive privilege assertion of the Estate of President Reagan. Acting Associate AG Delery knows President Obama’s decisions will be based on the accuracy of the facts provided by AG Holder and WH Counsel W. Neil Eggleston that informs President Obama why they decided to ratify the extant executive privilege decisions. Acting Associate AG Delery knows whether the executive privilege assertion was used to cover up illegal CIA domestic sources and methods.

54 U. The September 11, 2014 DNI Clapper declassified Yahoo documents

On September 11, 2014, DNI Clapper posted on the IC on Record website a new set of declassified FISC documents re the 2008 FISC of Review (FISC-R), In Re: Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004 (Foreign Intel. Surv. Ct. Rev. 2008), decision re the Yahoo challenge to the Protect America Act of 2007 (PAA). http://icontherecord.tumblr.com/. These documents include the USG Briefs filed in the Yahoo litigation. The AGs did not inform the FISC or the FISC-R of the “FISA secret law” that is explained in the May 24, 1984 Top Secret “OLC Olson FISA Memo” or the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” re the E.O. 12333 Top Secret “FISA exempt” NSA TSP.

DNI Clapper’s September 11, 2014 “Statement by the Office of the Director of National Intelligence and the U.S. Department of Justice on the Declassification of Documents Related to the Protect America Act Litigation” explained that these declassified documents were posted on IC on Record to “foster greater public visibility into intelligence activities:” Today, following a renewed declassification review, the Executive Branch is publicly releasing various documents from this litigation, including legal briefs and additional sections of the 2008 FISC-R opinion, with appropriate redactions to protect national security information. These documents are available at the website of the Office of the Director of National Intelligence (ODNI), and ODNI’s public website dedicated to fostering greater public visibility into the intelligence activities of the U.S. Government. Id. Emphasis added. DNI Director Clapper noted the FISC and FISC-R relied upon the 1981 E.O. 12333 procedures that included “minimization” procedures that were approved by the AG. These were the NSA TSP “FISA exempt” standards that had not been approved by the FISC:

Procedures that require the Attorney General to find, before the U.S. Government conducts surveillance of any U.S. person located outside the United States, that the targeted U.S. person is a foreign power or an agent of a foreign power. These procedures were not required by the PAA. Rather, the U.S. Government included them as a requirement in the certifications for the surveillance of U.S. persons located outside the United States, consistent with its practice since 1981 under Section 2.5 of Executive Order 12333. Id. Emphasis added.

Acting Associate AG Delery knows that if the DNI seeks to “foster greater public visibility into intelligence activities,” then the 1984, 2004, and 2014 Top Secret OLC FISA Memos should be declassified in their entirety and posted on the IC on the Record. The plaintiff asserts the September 11, 2014 documents are “cherry picked” declassified documents like the August 11, 2004 IC on the Record declassified documents. This has been a preemptive diversion strategy to continue in September, 2014 the implementation of the Top Secret “FISA secret law” of CIA Directors “back door” warrantless searches of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data sets. If DNI Clapper does not want the public to know these CIA domestic sources and methods, then he will request that AG Holder should consider the plaintiff’s quiet settlement offer.

55 V. The September 12, 2014 DNI Clapper Notice of the extended metadata FISC Order

On September 12, 2014, DNI Clapper posted on the IC on Record website public Notification that the FISC had granted AG Holder’s application for a FISC certification to extend the metadata program until December 5, 2014. http://icontherecord.tumblr.com/. AG Holder secured this latest FISC Order without informing the FISC of the “FISA secret law” re the 1982-2014 CIA Directors’ “back door” warrantless searches of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP that is based on the May 24, 1984 Top Secret “OLC Olson FISA Memo,” the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” and the July, 2014 “OLC Riley v California Memo” that no AG has presented to the FISC for Article III review.

DNI Clapper’s September 12, 2014 “Joint Statement from the Office of the Director of National Intelligence and the U.S. Department of Justice on the Declassification of Renewal of Collection Under Section 501 of the Foreign Intelligence Surveillance Act” explained President Obama’s decision to end the USG’s storage of the metadata:

After carefully considering the available options, the President announced in March that the best path forward is that the government should not collect or hold this data in bulk, and that it remain at the telephone companies with a legal mechanism in place which would allow the government to obtain data pursuant to individual orders from the FISC approving the use of specific numbers for such queries. The President also noted that legislation would be required to implement this option and called on Congress to enact this important change to the Foreign Intelligence Surveillance Act (FISA). Id. Emphasis added.

DNI Clapper informed the public that the AG and the DNI support pending House and Senate legislation that would provide a statutory prohibition to the storage of metadata:

The Department of Justice and the Director of National Intelligence support this legislation and believe that it reflects a reasonable compromise that preserves essential Intelligence Community capabilities, enhances privacy and civil liberties, and increases transparency. Id.

The Acting Associate AG Delery knows that the support of AG Holder and DNI Clapper for legislation that prohibits USG metadata storage, does not address the issue of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. This is the content data that the CIA analysts search because AAG of the OLC Olson had determined this was “constitutionally seized” content data in his Top Secret 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.

Acting Associate AG Delery knows whether the “OLC Riley v California Memo” cites to the May 24, 1984 Top Secret “OLC Olson FISA Memo.” If so, then the FISC should have read the July, 2014 OLC Memo prior to recertifying the metadata program. See § Y below.

56 W. The plaintiff’s September 15, 2014 letter to Acting Associate AG Delery requesting that he review the DOJ litigation strategy in Robert II v CIA and DOJ and Robert VII v DOJ as revealed in the DOJ connect-the-dots case file notes and e-mails

On September 15, 2014, the plaintiff sent a letter to Acting Associate AG Delery requesting that he review the DOJ litigation strategy that has been conducted Robert II v CIA and DOJ and Robert VII v DOJ. He requested that that he read the DOJ case file notes and e- mails to determine whether USG attorneys had provided accurate representations of fact and law in the FRCP 11 signed pleadings filed with Magistrate Judge Arlene Lindsay in Robert II v CIA and DOJ and with Judge Garaufis and the Second Circuit in Robert VII v DOJ.

The plaintiff noted that in Robert II v CIA and DOJ, the co-defendants’ attorneys CIA General Counsel Krass and EDNY U.S. Attorney Lynch had not complied with the Local Rule 56.1 requirement that the co-defendants serve the plaintiff with a Counter Statement to the plaintiff’s July 28, 2014 “Plaintiff’s Local Rule 56.1 Statement of Material Facts of Motion For Summary Judgment.” The plaintiff informed Acting Associate AG Delery that the lurking “Past is Prologue” issue in Robert II v CIA and DOJ was whether AG Meese and FBI Director Judge Webster had “defrauded” President Reagan because they did not inform President Reagan that they knew that CIA Director Casey had conducted an illegal CIA domestic “special activity” at IMC in violation of the Boland Amendment and the National Security Act of 1947 limitations on CIA domestic activities. See 12-14-11 Robert II v CIA and DOJ Status Affidavit § C. http://snowflake5391.net/12-14-11_RIIvCIAandDOJStatusAffidavit%20.pdf

The plaintiff raised the issue of the accuracy of the FRCP 11 signed pleadings that had been filed in Robert II v CIA and DOJ and Robert VII v DOJ. The plaintiff noted how Justice Scalia’s Pavelic & Le Fore v Marvel Entertainment Group, 110 S. Ct. 456 (1991), “this-is-not-a- team-effort” standard applied to USG FRCP 11 signed pleadings re classified information. USG attorneys have FRCP 11 signed pleadings when they did not have national security clearance to know the classified facts at issue in the pleadings that they signed. Justice Scalia explained that an attorney’s individual accountability 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 singing 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 459. Emphasis added. The plaintiff cited to the April 1, 2009 NYS Rules of Professional Conduct Rule 3.3(a)(3) duty of an attorney to cure any 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.” Emphasis added.

57 X. The September 15, 2014 FOIA request for the “OLC Riley v California Memo”

On September 15, 2014, the plaintiff filed a FOIA request with the OLC FOIA Officer seeking the release of the July, 2014 “OLC Riley v California Memo” that established the Article II “FISA secret law” whether the Riley v California holding that the Fourth Amendment applies to a U.S. citizen’s stored data in a U.S. citizen’s cell phone, does not to apply to the CIA Directors “back door” warrantless searches of 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA “haystacks” of U.S. citizens’ co-mingled stored content data. The plaintiff informed the OLC FOIA Officer that this was a related OLC FOIA request to the plaintiff’s undocketed December 3, 2013 FOIA request for 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” that was posted on the internet. http://snowflake5391.net/12_3_13_FISA_MEMOS.pdf

The plaintiff requested an OLC FOIA docket number or an acknowledgement letter by September 30, 2014. The plaintiff advised that if a docket number or acknowledgement was not received, then a complaint would be filed with the DOJ Inspector General Michael Horowitz. That complaint would be filed as a related complaint to the undocketed February 7, 2014 complaint against OIP Director Melanie Pustay for not taking action to docket the December 3, 2013 OLC FOIA request for the 1984 and 2004 OLC FISA Memos. He advised that that complaint was posted on the internet at http://www.snowflake5391.net/WP_IG.pdf.

The plaintiff filed a 54 page White Paper in support of the September 15, 2014 FOIA request. The plaintiff suggested that if the OLC FOIA Officer was ordered not to docket the FOIA request, then Acting Associate AG Delery should be contacted. The plaintiff informed the OLC FOIA Officer that a request was made that Acting Associate AG Delery review the DOJ litigation strategy in Robert II v CIA and DOJ and Robert VII v DOJ. See § Y below.

One of the purposes of filing the September 15, 2014 FOIA request was to gather facts to determine whether AAG of the Civil Division Delery and then Acting Associate AG Delery had committed Chambers v. Nasco.111 S. Ct. 2123 (1991), “fraud upon the court” if he intentionally did not inform the Second Circuit Judges in ACLU v Clapper of the 1) July, 2014 “OLC California v Riley Memo” that 2) established Article II “FISA secret law” of the E.O. 12333 Top Secret “FISA exempt” NSA TSP that 3) continued to be implemented after President Obama had voluntarily ended the USG’s storage of metadata. The Supreme Court explained the importance of the “fraud upon the court” standard to protect the integrity of Article III Courts:

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. Chambers, 2132. Emphasis Added.

The Second Circuit’s ACLU v Clapper Judges will be “the victim of a fraud” if they are not informed of the “OLC Riley v California Memo.” This is especially the case given the September 5, 2014 re-reclassification of the May 6, 2004 “OLC Goldsmith FISA Memo.”

58 Y. The September 30, 2014 “Glomar Response” FOIA decision of OLC Special Counsel Colborn denying the FOIA request for the “OLC Riley v California Memo”

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.

OLC Special Counsel Colborn rendered his September 30, 2014 denial decision after he fulfilled his due diligence duty to read the Robert II v CIA and DOJ plaintiff FOIA requester’s 54 page September 15, 2014 White Paper (WP) in support of his September 15, 2014 FOIA request. OLC Special Counsel Colborn also rendered his decision after conducting his due diligence duty to search the “OLC’s files” for what the FOIA requester asserted that Acting Associate AG Delery knew to be a Top Secret OLC document. See §§ P-S, X above.

OLC Special Counsel Colborn explained his 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.

For the reasons provided in the Robert II v CIA and DOJ plaintiff’s 54 page September 15, 2014 OLC WP, the plaintiff believes that 1) the “OLC Riley v California Memo” exists, and 2) it is being withheld pursuant to the “Glomar Response” defense. The decision to use the “Glomar Response” defense was a “double down” decision because OIPR James Baker had used this defense when he ratified the CIA’s use of the “Glomar Response” defense to withhold the “FISC Robert” documents in Robert VII v DOJ, 2005 U.S. Dist. LEXIS 39616, 193 Fed. Appx. 8 (2d Cir. 2006), cert. den. 127 S.Ct. 1133 (2007). See OIPR Counsel Baker’s October 1, 2004 Robert VII v DOJ “corrected” Declaration posted at http://www.snowflake5391.net/baker.pdf.

In October, 2014, the plaintiff will be filing an appeal of that denial decision in order to exhaust his administrative remedies prior to filing a Robert VIII v DOJ, HHS, and SSA Motion seeking Judge Garaufis’ pre-clearance Order to file a FOIA complaint seeking the “OLC Riley v California Memo.” That Motion will also seek a pre-clearance Order to file a complaint seeking the December 3, 2013 FOIA requested May 24, 1984 Top Secret “OLC Olson FISA Memo” and the March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” for which the OLC FOIA Officer never issued a docket number or decision. See 12-3-13 OLC WP §§ A-F, http://snowflake5391.net/12_3_13_FISA_MEMOS.pdf, § X above, and § BB below.

The Robert VIII v DOJ, HHS, and SSA plaintiff will include in his Motion’s supporting Affidavit, his request that Judge Garaufis read the three 1984, 2004, and 2014 Top Secret OLC FISA memos in camera to determine whether the “Glomar response” has been properly applied. He will argue that these Top Secret “OLC FISA” Memos are the Article II “FISA secret law” withheld from the Article III FISC Judges to protect 1982-2014 CIA “sources and methods.”

59 If a “Glomar Response” defense is being used to deny the FOIA request for the “OLC Riley v California Memo,” then this reveals the fatal flaw of the use of this defense if the OLC document exists. If the document exists, then AAG of the Civil Division Stuart Delery had a September 2, 2014 duty to inform the Second Circuit ACLU v Clapper panel of the existence of a “OLC Riley v California Memo” during his oral argument or in a supplemental in camera ex parte Declaration. If the document exists and Acting Associate AG Delery does not inform the Second Circuit in ACLU v Clapper, then he is implementing a de facto Marbury v Madison “nonacquiescence” policy. Acting Associate AG Delery has determined that he is to decide what the Article II “FISA law is” and not the Article III Second Circuit Judges. See §§ C, P, R above.

In his appeal of OLC Special Counsel Colborn’s September 30, 2014 decision, the Robert VIII v DOJ, HHS, and SSA plaintiff will also argue that Congress did not enact 5 U.S.C. § 552(c) as an Article II shield to stand the Marbury v Madison separation of powers decision on its head. He will argue Congress did not intend that 5 U.S.C. § 552(c) could be used by the AG so that the Article II AG decides “what the law is” and not Article III Judges.

In his appeal, the Robert VIII v DOJ, HHS, and SSA plaintiff will also argue that the public and all 535 Members of Congress should know whether an “OLC Riley v California Memo” exists that determined that the Riley v California Fourth Amendment holding that applies to a U.S. citizen’s stored data in a cell phone, does not apply to CIA Directors warrantless searches of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data that has been transferred into the Utah Data Center. He will argue that all 535 Members of Congress should know whether the Article II “FISA secret law” is based on the May 24, 1984 “OLC Olson 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.” Emphasis added. See 10-3-13 Robert Review Group Comments § D, http://snowflake5391.net/review_group_comments.pdf,

This will be a timely appeal issue because the 535 Members of Congress will soon be voting on a FISA amendment that statutorily bars the USG storing metadata, but does not bar the continued storage of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data sets. The 535 Members of Congress do not know at this late date that CIA Directors have conducted “back door” warrantless searches of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data that has been transferred into the Utah Data Center. The May 24, 1984 “OLC Olson FISA Memo” remains a 2014 Top Secret OLC document. Catch 22.

This is also a timely appeal issue because the 100 Senators will be making decisions whether to confirm President Obama’s Nominee to be the AG to succeed AG Holder. Senate Judiciary Committee Members may ask President Obama’s AG Nominee whether the use of Top Secret OLCs is an example of former-NARA ISSO Director Leonard’s April 30, 2008 testimony to the Senate Judiciary Committee at the 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. 8. Emphasis added. http://www.fas.org/sgp/congress/2008/law.html, and § C above

60 Z. The OLC’s September 30, 2014 “Glomar Response” decision re the “OLC Riley v California Memo” decision reveals the fatal flaw of the implementation of the Top Secret Article II “FISA secret law” because FISC Judge Dearie and FISC-R Circuit Judge Cabranes have not read the 1984, 2004, and 2014 Top Secret OLC FISA Memos

The plaintiff asserts that the OLC’s September 30, 2014 “Glomar Response” decision re the “OLC Riley v California Memo” decision reveals the fatal flaw of the continued implementation of the Top Secret Article II “FISA secret law.” Upon information and belief, 2014 FISC Judge Raymond J. Dearie, the EDNY U.S. Attorney (1982-1986) during Robert v Holz, and 2014 FISC-R Circuit Judge Jose A. Cabranes, a Second Circuit Robert VIII v DOJ, HHS, and SSA panel member, have not read the May 24, 1984 Top Secret “OLC Olson FISA Memo”, the September 5, 2014 re-reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo,” and the July, 2014 Top Secret “OLC Riley v California Memo.” Acting Associate AG Delery knows whether AG Holder has informed the 2014 FISC Judges of these 1984, 2004, and 2014 Top Secret OLC FISA Memos that have been the legal authority for 1982-2014 CIA Directors to conduct “back door” warrantless searches of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data sets.

On July 2, 2012, Chief Justice John Roberts appointed EDNY Judge Dearie to the FISC for a term that ends July 1, 2019. Article II EDNY U.S. Attorney Dearie (1982-1986) did not know of the existence of the May 24, 1984 Top Secret “OLC Olson FISA Memo” during the joint HHS-DOJ-FBI “Fraud against the Government” investigation of Robert and during the Robert v Holz FOIA litigation. He did not have Top Secret clearance to even know that OLC document existed. He was the 2007-2011 Article III EDNY Chief Judge during the Robert VIII v DOJ, HHS, and SSA FOIA litigation. Apparently, as a FISC Judge he has also not been informed of the “OLC Riley v California Memo” that cites to the Article II “FISA secret law” of the May 6, 2004 Top Secret “OLC Olson FISA Memo” and May 24, 1982 “OLC Olson FISA Memo” because of the DOJ policy of protecting illegal CIA domestic sources and methods.

On August 19, 2013, Chief Justice Roberts appointed Second Circuit Judge Jose A. Cabranes to FISC of Review. Circuit Judge Cabranes was on the Robert VIII v DOJ, HHS, and SSA, 439 Fed. Appx 32 (2d Cir. 2011), cert. den. 132 S. Ct. 1549 (2012), September 6, 2011 panel with Circuit Court Judges Joseph Mc Laughlin and Ralph Winter (a FISC-R Member from November 14, 2003 to May 18, 2010). Apparently, FISC-R Judge Cabranes has also not been informed of the “OLC Riley v California Memo” that cites to the Article II May 24, 1984 Top Secret “OLC Olson FISA Memo” with its “constitutionally seized” data sets standard.

The 2014 knowledge of the FISC and FISC-R Judges is a timely issue if Acting AAG of the OLC Thompson’s July, 2014 “OLC Riley v California Memo” established that the Riley v California holding that Fourth Amendment applies to a U.S. citizen’s stored data in a cell phone, does not apply to CIA “back door” warrantless searches of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data sets. If so, then the 2014 Article III FISC and FISC-R Judges will continue to make decisions without knowing that the 2014 Article II “FISA secret law” continues to be the May 24, 1984 Top Secret “OLC Olson FISA Memo” which determined that the “exclusivity provision” of the FISA was an “unconstitutional” encroachment on the President’s continued unlimited Article II Commander in Chief authority to authorize the CIA to conduct warrantless surveillance of U.S. citizens.

61 AA. The plaintiff’s putative October 24, 2014 FOIA request for DNI Clapper’s July 17, 2014 Report to President Obama re the USG’s storage of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data

If by October 20, 2014 AG Holder does not sua sponte instruct CIA General Counsel Krass and EDNY U.S. Attorney Lynch to initiate quiet settlement negotiations, then on October 24, 2014 the Robert II v CIA and DOJ plaintiff intends to file a FOIA request for DNI Clapper’s July 17, 2014 Report to President Obama re the USG’s storage of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data sets. If, as expected, DNI Clapper’s FOIA Officer denies this DNI FOIA request, then the plaintiff will include the FOIA requested “DNI Clapper July 17, 2014 Report to the President” as one of the documents he will seek in his Robert VIII v DOJ, HHS, and SSA Motion seeking Judge Garaufis’ pre-clearance Order to file a new FOIA complaint. See § BB below.

On January 17, 2014, President Obama issued Presidential Policy Directive/PPD-28 which directed DNI Clapper to within 180 days provide a Section 5 status report re the Intelligence Community (IC) progress on implementing PPD-28: Additionally, within 180 days of the date of this directive, the DNI, in coordination with the Attorney General, the heads of other elements of the IC, and the heads of departments and agencies containing other elements of the IC, shall prepare a report evaluating possible additional dissemination and retention safeguards for personal information collected through signals intelligence, consistent with technical capabilities and operational needs. Id. Emphasis added. http://www.whitehouse.gov/the- press-office/2014/01/17/presidential-policy-directive-signals-intelligence- activities. PPD-28 Sec. 4 Safeguarding Personal Information Collected Through Signals Intelligence Provides for the NSA TSP “minimization” procedures: i. Minimization. The sharing of intelligence that contains personal information is necessary to protect our national security and advance our foreign policy interests, as it enables the United States to coordinate activities across our government. At the same time, however, by setting appropriate limits on such sharing, the United States takes legitimate privacy concerns into account and decreases the risks that personal information will be misused or mishandled. Relatedly, the significance to our national security of intelligence is not always apparent upon an initial review of information: intelligence must be retained for a sufficient period of time for the IC to understand its relevance and use. Id. Emphasis added. Upon information and belief, DNI Clapper’s July 17, 2014 Report to the President includes his recommendation to the President as to the USG’s continued storage of the 1982- 2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data sets. If DNI Clapper based his Report on Acting AAG of the OLC Thompson’s July, 2014 “OLC Riley v California Memo” that cited to the May 24, 1984 “OLC Olson FISA Memo,” then DNI Clapper’s Report will reveal DNI “coordination with the Attorney General” re the 1982-2014 E.O. 12333 “FISA exempt” NSA TSP content storage issue.

62 BB. The plaintiff will cite to the “North Notebook” documents in his Robert VIII v DOJ, HHS, and SSA Motion filed with Judge Garaufis requesting a pre-clearance Order to file a new FOIA complaint seeking documents that will prove whether AGs had committed a “fraud upon the court” in Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA

The Robert II v CIA and DOJ plaintiff will cite to the four CIA classified 1985 “North Notebook” documents in his Robert VIII v DOJ, HHS, and SSA Motion filed with Judge Garaufis seeking a pre-clearance Order to file a new FOIA complaint. The plaintiff will inform Judge Garaufis that the four one page 1985 CIA classified “North Notebook” documents are connect-the-dots documents with the documents sought in the putative complaint. He will assert that these documents prove whether the 2004-2014 AGs Ashcroft (2001-2005), Gonzales (2005-2007), (Acting) Keisler (2007), Mukasey (2007-2008), and Holder (2009-) had committed Chambers v Nasco, “fraud upon the court” in their attorneys’ FRCP 11 signed pleadings filed in Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA. See § X above.

In his Robert VIII v DOJ, HHS, and SSA Motion, the plaintiff will be seeking Judge Garaufis’ pre-clearance Order to file a FOIA complaint seeking the following documents:

1. The December 3, 2013 DOJ FOIA requested May 24, 1984 “OLC Olson FISA Memo” 2. The December 3, 2013 DOJ FOIA requested May 6, 2004 “OLC Goldsmith FISA Memo” 3. The February 7, 2014 FBI de novo FOIA requested eight sets of FBI documents 4. The June 25, 2014 NARA appealed 1980s “Peter Keisler Collection” documents 5. The September 15, 2014 DOJ FOIA requested July, 2014 “OLC Riley v California Memo” 6. The October, 2014 DNI FOIA requested “DNI Clapper July 17, 2014 Report to the President”

The plaintiff will allege that these documents prove whether in Robert VII and Robert VIII the AGs’ attorneys intentionally withheld material facts from Judge Garaufis, the Second Circuit and the Supreme Court to protect the CIA sources and methods used during the illegal CIA domestic IMC and NSA “special activities” in violation of the National Security Act of 1947 and the E.O. 12333 prohibitions on CIA domestic “special activities.” He will cite to AG Holder’s Robert II v CIA and DOJ decision not to release the “North Notebook” documents that reveal 1) whether AG Meese and FBI Director Judge Webster knew that CIA Director Casey was conducting an illegal CIA domestic “special activity” at IMC, and 2) whether AG Meese, CIA Director Casey, and FBI Director Judge Webster had “defrauded” President Reagan.

The plaintiff will inform Judge Garaufis that Acting Associate AG Delery knows whether the mosaic of 1985-2014 DOJ case file notes and e-mails in Robert v Holz, Robert v DOJ, Robert v National Archives, Robert I v CIA, Robert VII v DOJ, Robert VIII v DOJ, HHS, and SSA, and Robert II v CIA and DOJ contain evidence that the AGs’ DOJ chain of command attorneys intended to protect illegal CIA domestic “special activities” at IMC and the NSA. If so, then they committed a Chambers v Nasco “fraud upon the court” in this FOIA litigation. “It is a wrong against the institutions set up to protect and safeguard the public.” Id. 2132.

The plaintiff will request that pursuant to the Second Circuit procedures established in New York Times v DOJ and ACLU v DOJ, DOD, and CIA, that Judge Garaufis conduct in camera ex parte review of the requested documents. In this way, Judge Garaufis can determine for himself whether a “fraud upon the court” had been committed. See §§ B, C, E, G, K above.

63 CC. The Robert II v CIA and DOJ “North Notebook” documents reveal whether HHS General Counsel del Real was CIA Director Casey’s illegal CIA domestic agent when he implemented the 1982-1985 Jackson v Schweiker “nonacquiescence” policy that is the basis for the denial of the due process rights of 1994-2014 Ford v Shalala class members

The Robert II v CIA and DOJ plaintiff asserts that Acting Associate AG Delery knows whether the four one page 1985 CIA classified “North Notebook” documents have not been released because they reveal whether 1981-1985 HHS General Counsel Juan del Real was CIA Director Casey’s illegal CIA domestic agent when he made 1982-1985 Jackson v. Schweiker, 683 F. 2d 1076 (7th Cir. 1982), “nonacquiescence” policy decisions. His decisions resulted in the denial of the due process and equal protection rights of millions of 1994-2014 Ford v Shalala nationwide class members. Acting Associate AG Delery knows that the continued 2014 denial of the due process and equal protection rights of the 1994-2014 Ford v. Shalala, 87 F. Supp 2d 163 (E.D.N.Y. 1999), nationwide class members during President Obama’s Constitutional watch, tracks backwards 32 years to EDNY Judge George Pratt’s January 7, 1982 Ruppert I v Schweiker remand Order and the Seventh Circuit’s July 20, 1982 Jackson v Schweiker decision.

The plaintiff asserts that the 1982 decisions of EDNY Judge Pratt in Ruppert I and the and the Seventh Circuit in Jackson, provide the answer to the how-could-this-have-ever- happened-question as to why AG Holder continues on October 3, 2014 not to release the four one page 1985 CIA classified “North Notebook” documents. Acting Associate AG Delery learned the answer when he performed his due diligence duty to review the Jackson, Ruppert and Ford “nonacquiescence” policies. As one of AG Holder “chain of command” attorneys, he decided that the protection of the CIA sources and methods of HHS General Counsel del Real’s 1982 Jackson nonacquiescence policy decision, trumped AG Holder’s duty to comply with Judge Sifton’s unappealed September 29, 1999 Ford v Shalala Order that certified the April 9, 1994 Ford v Shalala class. See 12-14-11 Robert II v CIA and DOJ Status Affidavit ¶¶ 32-35.

Acting Associate AG Delery knows that he has been defending HHS General Counsel del Real’s 1982-1985 Jackson “nonacquiescence” policies because of CIA Director Casey’s fateful July, 1982 decision: 1982 SSI funds that Congress had appropriated to pay for the basic needs of the six million SSI recipients in all 50 States, were needed to be diverted as an unaudited HHS funding source for December 4, 1981 E.O. 12333 CIA domestic “special activities” that could not be funded with classified OMB Budget funds. CIA Director Casey decided that unaudited Jackson “nonacquiescence” policy funds could pay for the “immaculate construction” and maintenance of the 1982 NSA TSP. He knew the NSA TSP could not be funded with OMB classified funds because of the “exclusionary provision” of the FISA of 1978.

Acting Associate AG Delery had learned that like Walt Disney’s Fantasia movie’s Sorcerer’s apprentice scene, once CIA domestic agent HHS General Counsel del Real began to divert unaudited HHS Jackson “nonacquiescence” policy funds, it could not be stopped. As Acting Associate AG, he has decided that 14 years after then-DAG Holder’s 2000 decision not to perfect EDNY U.S. Attorney Lynch’s Ford v Shalala Notice of Appeal, he would continue to implement the 1982 Jackson “nonacquiescence” policy of CIA agent del Real. Ironically, AG Holder (2009-) and EDNY U.S. Attorney Lynch (1999-2001, 2010-) now have an October, 2014 opportunity to end the Ford v Shalala “nonacquiescence” policy by providing President Obama with a “heads up” Memo that explains the Jackson-Ruppert-Ford litigation history.

64 On September 29, 1999, Judge Sifton decided Ford v. Shalala, 87 F. Supp 2d 163 (E.D.N.Y. 1999), certified an April 9, 1994 nationwide class, and discussed the plight of SSI recipients who did not know the reasons why their benefits were denied. Judge Sifton cited to the 1980 Gray Panthers v. Schweiker, 652 F. 2d 146, 168-169 (D.C. Cir. 1980) decision:

Unless a persons is adequately informed of the reasons for the denial of a legal interest, a hearing serves no purpose-- and resembles more a scene from Kafka than a constitutional process. Without notice of the specific reasons... a clamant is reduced to guessing what evidence can or should be submitted in response and driven to responding to every possible argument ... at the risk of missing the critical one altogether. Id. at 181. Emphasis Added

AG Holder and EDNY U.S. Attorney Lynch know who made the decision not to comply with Judge Sifton’s unappealed September 29, 1999 Ford v Shalala class Order. They know who ordered 2009-2014 HHS Secretary Sebelius not to send Ford v Shalala Notices to the millions of SSI recipients that who do not reside in the Seventh Circuit States of Indiana, Illinois, and Wisconsin, that cite to the “Jackson” SSI income regulation, 20 C.F.R. § 416.1130 (b). They know that the decision not to include a citation in Ford v Shalala Notices to the “Jackson” regulation, tracks back to EDNY Judge George Pratt’s January 7, 1982 Ruppert I remand Order.

On January 7, 1982, Judge Pratt decided Glasgold v. Califano, 558 F. Supp. 129 (E.D. N.Y. 1982), aff'd sub. nom. Rothman v. Schweiker, 706 F. 2d 407 (2nd Cir. 1983), cert. den. sub. nom. Guigno v. Schweiker, 464 U.S. 984 (1983). In Glasgold, Judge Pratt rejected the plaintiffs' argument that he apply the 1981 Indiana Jackson v. Harris standard. However, Judge Pratt remanded plaintiff Ruppert's appeal to HHS Secretary Schweiker to make a determination whether the HHS Secretary had a duty to provide oral Notice to SSI recipients to explain the standard that was used to reduce by one third plaintiff Ruppert’s federal monthly SSI benefits: RE: Ruppert v. HHS Plaintiff has amended his complaint to request a declaratory judgment requiring defendant to reform his procedures to comply with the Privacy Act. Specifically he wants defendant to fully inform claimants of the purpose of the information requested, the specific definitions used by Social Security and the effect of answers on benefit amounts. In Glasgold v. HHS Judge Pratt rules that HHS was not required to provide written explanations of its definitions etc. Therefore, plaintiff is currently requesting that oral explanations be required instead (whether only upon request or not is not clear). Plaintiffs assertion that a distinction should be made between oral and written information, such that one is statutorily required while the other is not, should be adequately briefed before a decision is made. Glasgold v. Schweiker, 553 F. Supp. 129, 151 (E.D.N.Y. 1982). Emphasis Added.

Ironically, plaintiff Ruppert is a Ford v Shalala class member. Upon information and belief, she never received a Ford v Shalala Notice that cites to the “Jackson” regulation. Acting Associate AG Delery has a due diligence duty to learn whether she received a Ford Notice.

65 On July 20, 1982, the Seventh Circuit decided Jackson v Schweiker. This was the appeal of the 1981 Jackson v Harris decision. The Court interpreted Secretary Schweiker's SSI income regulation which was then 20 C.F.R. § 416.1125 (1980). "The Secretary has litigated this case on a generalized "all or nothing" basis, i.e. the Secretary's regulation (20 C.F.R. § 416.1125 (d) (1981) must be either valid or invalid as applied in all situations." Id. at n. 2.

The Seventh Circuit remanded Jackson v Schweiker to the District Court to determine the class remedy which could include amending the SSI income regulation:

If the district court is satisfied that the current named plaintiff will continue to adequately represent the interests of class members, we further direct that the court order the Secretary either to amend the challenged regulation or to change his application of and procedure under, the regulation to provide relief to affected class members consistent with this opinion. Id. at 1086. Emphasis added.

On September 4, 1985, EDNY Judge Francis Altimari held a Ruppert v Heckler hearing re the Ruppert lead attorney Robert’s complaint that HHS General Counsel del Real’s had improperly sent Special Agents to conduct ex parte interrogations in the homes of his aged, blind, and disabled clients asking them what legal advice Robert was providing and the legal fees he was charging. At the September 4, 1985 Ruppert Chambers conference, a “main Washington” DOJ attorney was present along with other USG attorneys. Upon information and belief, the “main Washington” attorney was AAG of the Civil Division Richard Willard (1985-1987).

Acting Associate AG Delery knows whether the “main Washington” attorney was AAG of the Civil Division Willard from reading the Robert VIII v DOJ, HHS, and SSA “Ruppert” documents. Those “Ruppert” documents were withheld pursuant to FOIA Exemption 5 and not a classified FOIA exemption. See the 11-30-11 Robert VIII petition for a writ of certiorari Statement of the Case § D. http://snowflake5391.net/Robert8vDOJpetition1.pdf.

On November 18, 1985, plaintiff Robert filed Robert v Holz, cv-85-4205 (Wexler, J). The plaintiff sought the release of the HHS documents upon which HHS General Counsel del Real made his decision to initiate the “Fraud Against the Government” investigation of the Ruppert v Heckler lead counsel seeking Robert’s incarceration and disbarment. See the 1980s “FISC Robert” documents withheld pursuant to OIPR Counsel Baker’s March 1, 2004 ratification of the CIA FOIA Officer’s FOIA Exemption 1 and “Glomar Response” defenses as explained in his October 1, 2014 “corrected” Robert VII v DOJ Declaration. See § D (1) above.

On December 3, 1985, Judge Nicholas Bua decided Beckless v. Heckler, 622 F. Supp. 715 (D.C. Ill. 1985). He certified an Illinois class of SSI recipients by applying the Seventh Circuit’s Jackson holding re the certified class of Indiana SSI recipients, to SSI recipients residing in the State of Illinois. Judge Bua’s Beckless decision was based on the fact that Congress intended that the SSI program was to have uniform federal SSI standards that apply equally in all 50 States. This was because President Nixon’s October 1, 1972 SSI program was enacted to replace the 50 States different programs for poor aged, blind, and disabled citizens. President Nixon and the Congress intended to relieve the states of the burden of paying for poor aged, blind, and disabled citizens with uniform federal standards equally applied in all 50 States.

66 Judge Bua admonished HHS Secretary Heckler by alluding to the possibility that HHS Secretary Heckler had "failed to perform her duties as a public official." Id. 719:

However, it is not clear from the Jackson decision whether the Secretary is refusing completely to comply with the Seventh Circuit's decision. The Secretary has not issued a policy of non-acquiescence as was done in Lopes, and without further evidence, it is unclear whether the Secretary has failed to perform her duties as a public official. Id. 719. Emphasis Added.

On December 16, 1985, the Ruppert, et.al. v Bowen case was transferred from Judge Altimari to Judge Wexler when Judge Altimari became a Second Circuit Judge. Thus, as of December 16, 1985, Judge Wexler relied upon the accuracy of the FRCP 11 signed pleadings filed on behalf of HHS General Counsel del Real and AAG of the Civil Division Willard when he subsequently rendered his October 9, 1987 Ruppert v Bowen, 671 F. Supp. 151 (EDNY 1987), and his January 12, 1988 Robert v Holz decisions. See 11-30-11 Robert VIII petition Statement of the Case § C, http://snowflake5391.net/Robert8vDOJpetition1.pdf, 5-12-04 Robert VII v DOJ, 04-1961 (Garaufis, J) complaint, http://www.snowflake5391.net/rob7vdoj.pdf 1, and 1-20-06 Robert VII v DOJ Petition, http://www.snowflake5391.net/petitionrobertvdoj.pdf.

On June 2, 1986, the Supreme Court decided Bowen v City of New York, 106 S. Ct. 2022 (1986). Justice Powell explained the application of the equitable tolling principle to cure the HHS Secretary’s “clandestine” policy as applied to disabled Social Security beneficiaries:

Moreover, we are aware that the administrative inconvenience may result from our decision. But the Secretary had the capability and the duty to prevent the illegal policy found to exist in the District Court. 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

The Robert II v CIA and DOJ plaintiff asserts that if HHS General Counsel del Real was CIA Director Casey’s illegal CIA domestic agent when he made his 1982-1985 Jackson v Schweiker “nonacquiescence” policy decisions, then that policy remains in 2014 as the mother of all HHS “clandestine” policies. The former-Ruppert v Schweiker counsel asserts that the 1986 Bowen v City of New York equitable tolling remedy applies to the millions of 1982-1994 SSI recipients who are not members of the April 9, 1994-2014 Ford v Shalala nationwide class.

On May 6, 1988, AAG of the John Bolton (1988-1989) wrote a letter to the Administrative Conference of the United States (ACUS) explaining AG Meese’s “silent “nonacquiescence” policy that AG Meese’s “acquiescence review board” was implementing:

Thus, if a process to identify conflicting court of appeals decisions and to decide whether to acquiesce is to work, it must be protected by attorney- client, and deliberative process privileges. In particular the work of an acquiescence review board, or of attorneys charged with such functions, would seem to be a virtual textbook example of the reasons why a work product privilege exists. Similarly, the classic description of the need for a

67 decisional process privilege seem tailor-made for the acquiescence decision process.

If such new disclosure rules apply to all litigants, not just agencies, then acquiescence theory will have been used to create major, society-wide exceptions to privileges heretofore felt reasonable, with effects on the legal system far exceeding the more modest claims of opponents of nonacquiescence.

Whatever the ultimate result of the privilege issue, the immediate result of the uncertainty is to discourage agencies from adopting an acquiescence process, or, at least from adopting the type of candid and effective process that comes only with the ability of subordinates and attorneys to give advice in a privileged context. Emphasis Added. Document secured from FOIA request granted by ACUS. Id. Emphasis added. http://www.snowflake5391.net/aagbolton.pdf

The Robert v Holz-Robert VII v DOJ-Robert VIII v DOJ, HHS, and SSA-Robert II v CIA and DOJ plaintiff asserts that when AAG of the Civil Division Bolton wrote this letter to ACUS, he knew that AAG of the Civil Division Willard had known that HHS General del Real had been CIA Director Casey’s illegal CIA covered agent when he made his 1982-1985 Jackson “nonacquiescence” policy decisions. The plaintiff asserts that in October, 2014 Acting Associate AG Delery is implementing this “silent nonacquiescence policy” as explained by AAG of the Civil Division Bolton to the ACUS, to deny Ford v Shalala class members’ due process rights.

On August 1, 1988, D.C.D.C. Judge Stanley Sporkin, CIA Director Casey’s 1981-1985 CIA General Counsel, decided Duggan v. Bowen, 691 F. Supp. 1487 (D.C.D.C. 1988). This was a case involving the equal implementation of federal Medicare regulations. Judge Sporkin admonished HHS Secretary Bowen for implementing the HHS “nonacquiescence” policy:

Indeed the actions by HHS in the cases presented to me has been reprehensible. It is the most blatant form of stonewalling that an agency can engage in and the Secretary should certainly take all steps to prevent this from happening again. Id. 1501-1502. Emphasis added.

Acting Associate AG Delery knows from reading the Robert VIII v DOJ, HHS, and SSA “Robert v Holz” documents and DOJ case file notes and e-mails whether CIA General Counsel Sporkin (1981-1985) had known that HHS General Counsel del Real (1981-1986) had been CIA Director Casey’s illegal CIA domestic agent. If so, then CIA General Counsel Sporkin knew that HHS General Counsel del Real had made HHS “nonacquiescence” policy decisions and diverted unaudited HHS “nonacquiescence” policy funds to pay for CIA “special activities.” If so, then this explains Judge Sporkin’s July 1, 1988 admonition “…and the Secretary should certainly take all steps to prevent this from happening again.” Id. Emphasis added. However, Acting Associate AG Delery knows that the HHS “nonacquiescence” policy did not end in 1988.

On March 29, 1989, the Second Circuit decided Ruppert v. Bowen, 871 F. 2d 1172 (2d Cir. 1989). This was the appeal of Judge Wexler’s October 9, 1987 Ruppert v Bowen decision:

68 Appellants' counsel would have the SSA apply circuit court decisions nationally. He goes so far as to detect unethical conduct on the part of government counsel, who, he argues, mislead us with what he calls "Janus-faced," see Hidalgo v. Bowen, 822 F. 2d 294, 299 (2d Cir. 1987), statements regarding the SSA's acquiescence policy. See Estreicter & Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679, 681 (1989) (defining "agency nonacquiescence" as the "selective refusal of administrative agencies to conduct their internal proceedings consistently with adverse rulings of the courts of appeals"). The SSA evidently considers itself bound only by the decisions of the Supreme Court and by those decisions of the applicable circuit court to which the SSA has not announced its objections. See Department of Health and Human Servcies, HHS News (June 3, 1985) (Press release); Office of Hearings and Appeals Staff Guides and Programms Digest 6 Bulletin No. III-I, at 4 (Aug 22, 1986); Ruppert, 671 F. Supp. at 169-71; Estreicher & Revesz, supra, 98 Yale L.J. at 694-99. Although appellants suggest that SSA has promised to apply circuit court decisions nationally and argue that it should be required to do so, we affirm Judge Wexler's determination that the SSA's acquiescence policy applies only within circuits. Id. at 1177.

The Robert v Holz-Robert II v CIA and DOJ plaintiff asserts that Acting Associate AG Delery knows from reading the 1982-1999 Ruppert case file notes and e-mails, whether AAGs of the Civil Division Willard (1985-1988), and Bolton (1988-1989) supervised attorneys made “Janus-faced” representations to Judge Wexler and the Second Circuit re the Jackson “nonacquiescence” policy of HHS General Counsel del Real. They knew whether he was CIA Director Casey’s illegal CIA domestic agent. The plaintiff asserts that Acting Associate AG Delery knows that he has an April 1, 2009 NYS Rules of Professional Conduct Rule 3.3(a)(3) duty to cure misrepresentations of fact and law made to Judge Wexler and the Second Circuit in Ruppert v Bowen. “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.

On March 28, 1990, EDNY Judge Charles Stewart decided Hinton v. Sullivan, 737 F. Supp. 232 (S.D.N.Y. 1990). This case involved the computation of an SSI recipient’s monthly income. Judge Stewart found that the SSA computer had been rigged to input “phony” SSI income in order to reduce the plaintiff’s monthly SSI payment amount. “Yet this "phony" amount was actually charged as income to plaintiff.” Id. 242. Emphasis added.

The plaintiff asserts that Acting Associate AG Delery knows that the SSI policy of inputting “phony” income to reduce Ford v Shalala class benefits, continues to be applied as part of the 1988-2014 Jackson v Schweiker “silent nonacquiescence policy” as explained by AAG of the Civil Division Bolton to ACUS. He also knows that HHS Secretary Sylvia Mathews Burwell (2014-) has the skills set to reprogram the SSA computer to eliminate inputting “phony” income for 1994-2014 Ford v Shalala class members when computing retroactive SSI benefits reduced because of the Jackson “nonacquiescence” policy of HHS General Counsel del Real. She was the 1995-1997 Chief of Staff for Treasury Secretary Robert Rubin, the 1997-1999 Deputy Chief of Staff for President Clinton, and the 2013-2014 OMB Director for President Obama.

69 On July 16, 1990, HHS General Counsel Michael Astrue (1989-1993), made his Ruppert “nonacquiescence” policy decision that followed the 1982 Jackson “nonacquiescence” policy of HHS General Counsel del Real. He knew whether HHS General Counsel del Real had been CIA Director Casey’s illegal CIA domestic agent when he made his 1982-1985 Jackson “nonacquiescence” policy decisions. HHS General Counsel Astrue had been the 1985 SSA Acting Deputy Assistant Secretary of Legislation, 1986 Legal Counsel to the SSA Deputy Commissioner for Programs, 1986-1988 Counselor to the SSA Commissioner, 1988 Associate White House Counsel for President Reagan, and 1989 Associate White House Counsel for President George H.W. Bush before becoming President Bush’s HHS General Counsel.

HHS General Counsel Astrue would be President George W. Bush’s SSA Commissioner Nominee. At his January 24, 2007 Senate Finance Committee confirmation hearing, SSA Commissioner Nominee Astrue testified that he had ended the HHS “nonacquiescence” policy:

I am particularly proud of having led the effort to terminate the agency’s longstanding “nonacquiescence” policies, an achievement highlighted by Chairman Moynihan when I was last before you in 1989 during my confirmation hearing for General Counsel of HHS.” S.Hrg. 110-222. http://finance.senate.gov/hearings/testimony/2007test/012407matest.pdf.

Acting Associate AG Delery knows that SSA Commissioner Nominee Astrue’s January 24, 2007 Senate Finance Committee testimony remains as false uncured testimony because the 1982-1985 Jackson “nonacquiescence” policy of HHS General Counsel del Real continued throughout SSA Commissioner Astrue’s 2007-2013 Constitutional watch. Acting Associate AG Delery knows that SSA Commissioner Astrue had implemented a 2009-2013 Ford v Shalala “nonacquiescence” policy, because he was AG Holder’s 2009 Chief of Staff and Counselor to the Deputy Attorney General Ogden who had been the AAG of the Civil Division from 1999- 2001, 2010 Associate DAG for Acting DAG Grindler (2010), August 2010 until March 2012 Senior Counselor to AG Holder, and the 2012-2014 AAG of the Civil Division. Acting Associate AG Delery knows with 20/20 hindsight that HHS General Counsel Astrue’s July 16, 1990 “Acquiescence Ruling” was Orwellian double speak for what has been a 1990-2014 Ruppert “nonacquiecensce” policy that followed HHS General Counsel del Real’s 1982 Jackson “nonacquiescence” policy. http://www.ssa.gov/OP_Home/rulings/ar/02/AR90-02- ar-02.html. The July 16, 1990 AR 90-2(2): Ruppert v. Bowen, 871 F.2d 1172 (2d Cir. 1989) -- Evaluation of a Rental Subsidy as In-Kind Income for Supplemental Security Income (SSI) Benefit Calculation Purposes -- Title XVI of the Social Security Act, explains why the “Jackson” regulation, 20 C.F.R. 416.1130(b), was applied only in the Seventh Circuit States of Indiana, Illinois, and Wisconsin. That policy would continue not to be applied in the Second Circuit States of New York, Connecticut, and Vermont or any of the other 43 States: Although the court required there to be a determination of "actual economic benefit" in rental subsidy cases, it did not specify the test to be used in making that determination. SSA has decided that it will determine that an applicant or recipient did not receive an "actual economic benefit" from a rental subsidy when the monthly amount of rent required to be paid equals or exceeds the presumed maximum value described in 20 C.F.R. Section 416.1140(a)(1) (one-third of the Federal benefit rate plus the $20

70 general income exclusion). If the required amount of rent is less than the presumed maximum value, we will impute as in-kind support and maintenance the difference between the required amount of rent and either the presumed maximum value or the current market rental value, whichever is less. Id. Emphasis Added. In February, 1996, in Gordon v. Shalala, 55 F.3d 101 (2d Cir. 1995), cert. den, 517 U.S. 1103 (1996), DAAG of the Civil Division Stephen Preston (1995-1998), AAG of the Civil Division Frank Hunger (1993-1999), and Solicitor General Days (1993-1996) on behalf of HHS Secretary Shalala (1993-2001), defended the 1982-1985 Jackson “nonacquiescence” policy of HHS General Counsel del Real. SG Days explained the significance of HHS General Counsel Astrue’s Orwellian double speak Ruppert “Acquiescence Ruling” policy at n. 4 of his Gordon Brief filed in opposition to the Gordon petition for a writ of certiorari.

Petitioner’s discussion of the Acquiescence Ruling manifests a misunderstanding of such rulings. In issuing those rulings, the Commissioner has chosen to acquiesce in adverse court of appeals decisions within the respective circuits, instead of seeking review of those decisions in this Court. That practice, however, in no way obligates the Commissioner to change her administration of the Act in cases involving other litigants in other circuits that have not rejected her legal position on a particular issue. See e.g., United States v Mendoza, 464 U.S. 154 (1984). Emphasis added. http://www.usdoj.gov/osg/briefs/1995/w95955w.txt.

Acting Associate AG Delery knows DOD General Counsel Stephen Preston (2013-) was the 1995-1998 DAAG of the Civil Division who supervised the Second Circuit Gordon litigation. This is an important fact because DOD General Counsel Preston was the 1993-1995 DOD Principal Deputy General Counsel. He knew whether HHS General Counsel del Real had been CIA Director Casey’s illegal CIA domestic agent when he made the 1982-1985 Jackson “nonacquiescence” policy that SG Days defended in his February, 1996 Supreme Court Gordon Brief. This is an important “Past is Prologue” fact because DOD General Counsel Preston was the 2009-2013 CIA General Counsel when Robert VIII v DOJ, HHS, and SSA was pending in the Second Circuit. The Robert II v CIA and DOJ plaintiff had placed him on Notice that he had known whether HHS General Counsel del Real was CIA Director Casey’s illegal domestic CIA agent when he made the Jackson “nonacquiescence” policy decisions. See 7-25-11 CIA General Counsel Preston WP §§ I-L, http://snowflake5391.net/7_25_11_WPCIAGenCouPreston.pdf, and 10-30-13 CIA General Counsel Preston WP Introduction and §§ M-P, http://snowflake5391.net/10_30_2013_13_WP_Preston.pdf

The Robert II v CIA and DOJ plaintiff has provided this § CC overview of the 1982-2014 Jackson v Schweiker, Ruppert v Bowen, and Ford v Shalala litigation because the Jackson, Ruppert, and Ford “nonacquiescence” policies continue in October, 2014. This results in the denial of the due process and equal protection rights of millions of 1994-2014 Ford v Shalala class members. The fact that Acting Associate AG Delery knows whether HHS General Counsel del Real was CIA Director Casey’s illegal CIA domestic agent when he made his 1982-1985 Jackson “nonacquiescence” policy decisions, is like an unattended tooth ache. The pain will not go away until Acting Associate AG Delery provides AG Holder with an accurate “heads up” memo upon which AG Holder can end the Ford v Shalala “nonacquiescence” policy in 2014.

71 DD. Summary of Final Robert II v CIA and DOJ status letter to the Court and the WP

The plaintiff filed his final October 3, 2014 monthly status letter with this lengthy White Paper recording the drum beat of events that occurred after he filed his August 12, 2014 lengthy status letter, because his fourteen years (14) of attempts to secure a quiet settlement in Robert I v CIA, cv 00-4325 (Seybert, J) and Robert II v CIA and DOJ have failed. OLC Special Counsel Paul Colborn’s very prompt September 30, 2014 use of the “Glomar Response” to deny the plaintiff’s September 15, 2014 FOIA request for “OLC Riley v California Memo,” was a signal that the quiet settlement process has ended. It is now time for an Article III adjudication of the issue of whether the AG has the Constitutional authority to authorize CIA domestic “special activities” if the AG determines that this is necessary to protect the nation from terrorists.

The plaintiff does not believe that the past fourteen years of failed quiet settlement attempts have been a waste of time. Quite the contrary, the plaintiff knew when he filed his 2000 Robert I v CIA complaint that this case would most likely be decided on the Court’s decision whether to defer to the Article II naked representations of the CIA Director that the national security would be at risk if the “North Notebook” documents became public documents. In 2000, the Robert I v CIA complaint allegations seemed to be almost incredible allegations. However, with the passage of time and 2000-2014 events, the fact that CIA General Counsel Krass and EDNY U.S. Attorney Lynch have not filed the co-defendants’ Counter Statement to the plaintiff’s July 28, 2014 Local Rule 56.1 Statement of Material Facts of Motion for Summary Judgment, adds credence to the plaintiff’s almost incredible 2000-2014 allegations.

The plaintiff’s Robert II v CIA and DOJ Summary Judgment Motion will be a simple arithmetic argument: The Motion should be granted by application of President Barak Obama’s December 29, 2009 E.O. 13526, § 3.3 Automatic Declassification 25 year rule to the release of four one page 1985 CIA classified “North Notebook” documents: 1985+25=2010. The co- defendants’ opposition to the plaintiff’s Summary Judgment Motion will place the burden on CIA Director Brennan and AG Holder to persuade the Court that the national security will be at risk if the four identified redacted one-page 1985 CIA classified documents are released to the plaintiff who then provides the documents to the Intelligence Committees and historians.

The plaintiff, a/k/a Snowflake 5391 as per the DOJ’s designation, also knows that there is now a public readiness to understand the Constitutional risk when there are no Article I, Article II, or Article III checks and balances to a CIA Director who “runs amok” and conducts “back door” warrantless searches of the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data transferred into the Utah Data Center. These were issues presented in plaintiff’s 12-14-11 and 8-15-12 Robert II v CIA and DOJ Status Affidavits and the plaintiff’s monthly status letters. See the 4-4-14 monthly status letter ¶¶ 1, 2, 4, 5, 8,10,12,14. This is also the Constitutional danger that Justice William Douglas raised in his famous 1976 quote that is the preamble of the plaintiff’s Snowflake5391 blog:

But the guarantee is not self-executing. As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. and it is in such twilight that we all must be aware of changes in the air -- however slight--lest we become unwitting victims of the darkness. http://snowflake5391.net/

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