SECOND CIRCUIT COURT OF APPEALS ------X CHARLES ROBERT VIII Appellant,
Docket 09-4684-cv -against-
DEPARTMENT OF JUSTICE, HEALTH AND HUMAN SERVICES, AND SOCIAL SECURITY ADMINISTRATION
Appellees. ------X
7-27-10 White Paper for EDNY AUSA Mahoney to present issues, facts, and cases that AG Holder should know when he considers the Robert VIII v DOJ, HHS, and SSA offer of a quiet settlement prior to the appeal reinstatement date of September 3, 2010
Charles Robert, pro se 441 West Broadway Long Beach, N.Y., 11561 516-889-2251 [email protected] TABLE OF CONTENTS PAGE
INTRODUCTION 1
EXECUTIVE SUMMARY 3
A. AG Holder’s April 17, 2010 Open Government Plan that establishes the transparency standard that AG Holder should apply when he considers the quiet settlement offer 14
B. Notice to EDNY U.S. Attorney Lynch of her K & A supervising attorney duty to remedy the uncured due process rights violations of 1994-2010 Ford v Shalala class members 17
C. Notice to U.S. Attorney Lynch that AUSA Mahoney knows that the Ford v Shalala due process violations have never been cured and that millions of Ford class members’ due process rights are being violated during the 2010 Constitutional watch of AG Holder 19
D. Notice to AUSA Mahoney that the 2010 Open Government FOIA requests were made to prove to AG Holder that AUSA Mahoney is implementing a “Barrett nonacquiescence policy” by withholding material facts from Judge Garaufis, with the result that AG Holder has breached his 28 U.S.C. § 530D duty to report this nonacquiecence policy to Congress 23
E. Notice to AUSA Mahoney of her April 1, 2009 NYS Professional Model Rules Rule 3.3 duty to cure misrepresentations of fact and law made to tribunals 26
F. Notice to AUSA Mahoney that she has a 2010 NYS Judiciary Law § 487 duty not to deceive Judges and parties, including appellant Robert and Ford v Shalala class plaintiffs 29
G. Notice to AUSA Mahoney that the 1991 Chambers v Nasco “fraud upon the court” standard applies to USG attorneys who filed false pleadings relied upon by Judges 31
H. Application of the July 6, 2005 OPR Analytical Framework to AUSA Mahoney’s implementation of the “Barrett nonacquiescence policy” by withholding material facts from Judge Sifton in Ford v Shalala and from the Second Circuit in the Robert FOIAs 33
I. Notice to U.S. Attorney Lynch that a 1982-2010 EDNY “stovepipe” exists whereby classified information has bypassed the EDNY U.S. Attorneys to provide them with a “plausible deniability” defense to the 1982-2010 serial violation of federal laws 37
J. The July, 2010 test to prove to AG Holder that a 2010 DOJ “stovepipe” exists that bypasses AG Holder’s 2010 chain of command attorneys because each 2010 attorney will have a 28 U.S.C. 535 (b) duty to report to AG Holder that SSA Commissioner Astrue’s June 22, 1989 and January 24, 2007 Senate Finance Committee testimony was false 43
K. AG Holder’s K & A duty to read the 2010 Project National Security Reform study and to ask DNI NCTC Director Leiter whether he has access to the “do not exist” 1984-2010 NSA TSP data banks and whether he knows the funding source for those data banks 49 L. The appellant has placed U.S. Attorney Lynch on Notice of the September, 2010 request for the DOJ declassification of OLC documents and Robert FOIA documents by the 2010 reconstituted NARA ISSO pursuant to § 1.5 of President Obama’s December 29, 2009 E.O. 13,526, Classified National Security Information, declassification procedures 55
M. The appellant placed U.S. Attorney Lynch on Notice of 2010 requests for E.O. 13,526 § 1.7 misclassification decisions to determine whether pursuant to the 50 U.S.C. § 421 duty to protect covered agents identity, non-disclosure agreements were used by DOJ attorneys to cover up 1980s violations of the FISA as revealed in the Robert VII v DOJ litigation 61
N. The request to AAG of the OLP Schroeder that he identify the 2010 “appropriate authorities” who have the authority to make 2010 “Glomar Response” FOIA decisions not subject to the E.O. 13,526 § 1.5 declassification and § 1.7 misclassification review process, and that he apply the well settled 1985 Mitchell v Forsyth wiretapping immunity standard and a 2010 “Glomar Explorer II test” to the “Past is Prologue” FOIA classified decisions 71
O. Notice to U.S. Attorney Lynch of AAG of the OLC Goldsmith’s May 21, 2004 memo to HHS General Counsel Azur re the “whistleblower” statute not applying to HHS employees reporting alleged crimes to Congressional Oversight Committees 82
P. Notice to U.S. Attorney Lynch of the 1986 Bowen v City of New York equitable tolling remedy that applies to 2010 Ford class members whose benefits were denied because of “clandestine” policies revealed in the Ruppert and Ford case files notes and e-mails 88
Q. Notice to U.S. Attorney Lynch of the 1988 Chilicky “normal sensibilities” of human beings remedy that is measured in months, and not years or decades 91
R. AG Holder’s 2010 duty to acquiesce to Justice Thomas’ 2000 Christensen v Harris administrative law holding and cite in the Ford v Shalala “remedy” Notices to a Jackson SSI income regulation that is equally applied in all 50 States in order to cure the April 9, 1994 Ford due process violations that have not yet been cured in July, 2010 94
S. If there is a September 3, 2010 reinstatement of the appeal, then there will be request for the automatic declassification of the September 4, 1985 DOJ Ruppert v Bowen case file notes that reveal the ex parte information that DOJ attorneys provided Judge Altimari 105
T. U.S. Attorney Lynch’s K and A duty to read the 1995-1996 Gordon v Shalala Briefs submitted to the Second Circuit and Supreme Court, case file notes, and e-mails, and to solve the Gordon riddle whether SSA Commissioner Astrue’s January 24, 2007 Senate testimony that the “nonacquiescence” policy had ended prior to 1989 was false, or whether DOJ attorneys made misrepresentations of fact and law to the Second Circuit and the Supreme Court in the Gordon Briefs defending the DOJ-HHS “nonacquiecence” policies 116
U. AG Holder can provide an answer to the how-could-it-have-ever-answered Jackson question by ordering SSA Commissioner Astrue to “make true” his January 24, 2007 Senate testimony by amending the Jackson regulation to equally apply in all 50 States and consulting with OIRA Director Sunstein to develop a transparent cost benefit analysis that would be needed if AG Holder also ends the Ford due process violations in 2010 127
2 V. U.S. Attorney Lynch’s K and A duty to read for accuracy the 1998-2000 Robert v National Archives FOIA “c (3) exclusion” ex parte Declarations, case file notes, and e- mails, and determine whether any USG attorneys committed a fraud upon the court by application of AG Meese’s December, 1987 “c (3) exclusion” FOIA Guidelines 132
W. U.S. Attorney Lynch’s K & A duty to read for accuracy 1999-2001 Robert v DOJ FRCP 11 signed pleadings to determine whether there had been sham “due diligence” searches to protect national security secrets with the intent to deceive Judge Mishler, the Second Circuit, Robert, and Ford class members because of the 2001-2010 implementation of the “Jackson nonacquiescence policy” after the Ford appeal was not perfected 143
X. U.S. Attorney Lynch’s K & A duty to read for accuracy the Robert II v HHS signed pleadings to determine whether the “Barrett nonacquiescence policy” had been implemented whereby material facts were withheld from Judge Irizarry and the Second Circuit re the “CMS Jackson” documents that revealed violations of federal laws and attorneys’ violation of NYS Judiciary Law § 487 deception of Judges and parties standard 157
Y. U.S. Attorney Lynch’s K & A duty to read the Robert III v DOJ FBI “Recarey extradition” documents withheld pursuant to the Glomar Response defense because they are “connect-the-dots documents to the 1985 “FBI Revell” log document, 1986 “FBI Abshire” documents, 1987 FBI “Perot” documents, and 1987 FBI “IMC Investigation Final Report” documents, and reveal what and when FBI Director Judge Webster knew about IMC prior to becoming CIA Director Judge Webster on May 26, 1987 165
Z. OMB General Counsel Bansal’s duty to read the undocketed FOIA requested 1982- 2009 “OMB Jackson” documents and determine if the decisions not to docket and the use of the “Glomar Response” defense violated the OMB April 7, 2010 Open Government Plan 177
AA. CIA General Counsel Preston’s duty to read four 1985 de novo CIA FOIA requested Robert II v CIA and DOJ documents that are connect-the-dots documents to the “FBI Abshire” and “OMB Jackson” documents and reveal 1985 USG “sources and methods” and violations of the Boland Amendment, National Security Act, and Social Security Act 184
BB. NARA General Counsel Stern’s duty to read the de novo FOIA requested NARA “Peter Keisler Collection”, NARA “Perot”, and “Robert National Archives ‘Bulky evidence file’” documents that will be subject to the 2010 NARA OGIS mediation services 191
CC. DOD General Counsel Johnson’s duty to read the FOIA requested DOD “NSA TSP and PSP data banks access guidelines” to determine whether there are violations of the FISA “exclusivity provision” and the PCA military “law enforcement” restrictions as revealed by the application of AAG of the OLC Dellinger’s 1994 PCA and 1995 FISA OLC standards to the de novo FOIA requested Robert VII v DOJ “FISC Robert” documents 195
DD. NDI General Counsel Litt’s duty to read the FOIA requested DNI “NCTC TSP and PSP data banks access guidelines” to determine whether there are ongoing violations of the FISA “exclusivity provision” and the PCA military “law enforcement” restrictions 211
3 EE. Acting HHS General Counsel Childress’ duty to read the July 27, 2010 HHS FOIA requested HHS documents prior to recommending to HHS Secretary Sebelius whether she should accept the quiet settlement offer that would make true co-appellee SSA Commissioner Astrue’s January 24, 2007 Senate testimony 231
FF. Acting SSA General Counsel Black’s duty to read the July 27, 2010 FOIA requested SSA documents that prove whether SSA Commissioner Astrue’s January 24, 2007 Senate testimony was false, prior to recommending to SSA Commissioner Astrue, their client, whether he should accept the appellant’s Robert VIII v DOJ, HHS, and SSA quiet settlement offer and “make true” his Senate testimony 235
GG. U.S. Attorney Lynch’s K & A duty to read the July 27, 2010 FOIA requested DOJ Robert v Holz, Robert VII v DOJ, and Robert VIII v DOJ, HHS, and SSA documents, case file notes, and e-mails, and other DOJ mosaic of documents to provide AG Holder the answers to the how-could-it-have- happened Jackson question and the Gordon riddle 239
HH. U.S. Attorney Lynch’s K & A duty to read the FOIA requested documents sought in plaintiff’s Robert v DOJ and SSA September 3, 2008 Motion for a pre-clearance order to file a putative complaint which Judge Garaufis denied without prejudice, to determine whether EDNY U.S. Attorneys had withheld material facts from Judge Garaufis 243
II. U.S. Attorney Lynch’s K & A duty to review the due diligence search for three documents for which Judge Garaufis had explicitly ordered the defendants to conduct a supplemental due diligence search and to review the due diligence search for the de novo July 27, 2010 FOIA requests subject to AG Holder’s March 19, 2009 FOIA Guidelines 248
JJ. U.S. Attorney Lynch’s K & A duty to ask the 1985-2010 former-U. S. Attorneys and EDNY AUSAs whether they knew that the “Jackson nonacquiescence policy” implemented after the July 25, 1985 House Judiciary Subcommittee testimony, was a “clandestine” policy that would trigger the 1986 Bowen v City of New York equitable tolling standard 252
KK. U.S. Attorney Lynch is on Notice that the Second Circuit 2002 U.S. v Reyes “conscious avoidance” of facts holding applies to her own August, 2010 K & A duty to review the Ford and the Robert FOIA litigation decisions of AUSA Mahoney 258
LL. U.S. Attorney Lynch’s Notice of the Second Circuit’s 2005 National Council holding that the attorney-client privilege does not apply to secret DOJ policy decisions 261
MM. U.S. Attorney Lynch’s Notice of the Second Circuit’s 2006 Doe I and Doe II decisions re USG prior restraint orders as applied to U.S. citizens seeking information 263
NN. U.S. Attorney Lynch’s Notice of the Second Circuit’s 2008 U.S. v Aref decisions re the Article III in camera review of documents asserting the “states secret” defense 268
OO. U.S. Attorney Lynch is on Notice of the Second Circuit 2008 ACLU v DOD decision
4 explaining an Article III Judge’s checks and balances duty in FOIA cases 271
PP. U.S. Attorney Lynch’s Notice of the Second Circuit’s Circuit 2008 Doe v Mukasey checks and balances standard of an in camera review of classified documents 274
QQ. U.S. Attorney Lynch’s Notice of the Second Circuit’s 2009 Doe v CIA dicta re “systemic official action” that applies to the Robert FOIA documents and case file facts 277
RR. U.S. Attorney Lynch’s Notice of the Second Circuit’s 2009 In Re NY Times Company to Unseal Wiretaps & Search Warrant Materials holding re the release of Title III transcripts Congress intended were confidential law enforcement documents 280
SS. U.S. Attorney Lynch’s Notice of the Second Circuit’s 2009 Arar v Ashcroft holding not to extend “Bivens” jurisdiction does not apply to illegal wiretapping 282
TT. U.S. Attorney Lynch’s Notice of the Second Circuit 2009 Wilson v CIA deference standard applied to review a CIA Declaration “continued classification” assertion 284
UU. U.S. Attorney Lynch’s Notice of the Second Circuit’s 2009 Wilner v NSA “bad faith” standard applied to the use of the “Glomar Response” defense 287
VV. U.S. Attorney Lynch’s Notice of the Second Circuit’s 2009 Alexander v Cahill First Amendment decision as to jurisdiction over NYS Grievance Committees decisions 290
WW. U.S. Attorney Lynch’s Notice of the Second Circuit 2010 Bloomberg FOIA “public interest” holding as to withholding confidential records from the public 292
XX. U.S. Attorney Lynch’s Notice of the Second Circuit June 9, 2010 Dinler v City of New York standard that the burden is on the law enforcement agency to prove the use of the law enforcement privilege and that the Court reviews in camera the documents 294
YY. AG Holder’s March 15, 2010 Sunshine Week Open Government speech and AG Holder’s April 7, 2010 Open Government Plan to restore the public’s trust in the USG 299
ZZ. AG Holder’s March 19, 2010 Pro Bono Institute speech and his 2010 application of the 1988 Chilicky “normal sensibilities” of human beings remedy to Ford class members 302
AAA. The 2010 FOIA requests seeking documents that reveal facts necessary to survive AG Holder’s putative 2011 Motion to dismiss appellant’s 2011 putative First Amendment right of access to the Courts complaint based on Christopher v Harbury cause of action elements, and AG Holder’s application of the Ashcroft v. Iqbal “plausibility” standard 303 Summary 316
5 7-27-10 White Paper for EDNY AUSA Mahoney to present issues, facts, and cases that AG Holder should know when he considers the Robert VIII v DOJ, HHS, and SSA offer of a quiet settlement prior to the appeal reinstatement date of September 3, 2010
This is a White Paper served upon EDNY AUSA Kathleen Mahoney to present issues, facts, and cases that AG Holder should know when he decides whether to accept or reject the appellant’s Robert VIII v DOJ, HHS, and SSA offer of a quiet settlement prior to the appeal reinstatement date of September 3, 2010. Second Circuit Docket No. 09-4684-cv. It has been served both by mail and e-mail to create a “paper and server trail” of Notice to AUSA Mahoney.
On March 18, 2010, the Clerk of the Court filed the stipulation withdrawing the Robert VIII v DOJ, HHS, and SSA appeal with a reinstatement date of September 3, 2010. As of the date of this White Paper, there has been no response to the appellant’s quiet settlement offer.
This White Paper has also been served upon President Obama’s newly confirmed EDNY U.S. Attorney Loretta Lynch, the supervising attorney of AUSA Mahoney. U.S. Attorney Lynch had also been President Clinton’s 1999-2001 EDNY U.S. Attorney and the supervising attorney of AUSA Mahoney in other Robert FOIA actions and in Ford v. Shalala, 87 F. Supp 2d 163 (E.D.N.Y. 1999), a nationwide certified class of millions of Supplemental Security Income (SSI) recipients whose 1994-2010 due process rights were violated and have not yet been cured.
As of July 27, 2010, Robert’s de novo March 11, 2010 FOIA requests for “FBI Abshire” documents and 1982-2009 “OMB Jackson” documents have not been docketed. The OMB FOIA Officer did not docket the August 5, 2009 FOIA request for the 1982-2008 “OMB Jackson” documents, but used the “Glomar Response” defense to withhold those “OMB Jackson” documents. These are documents that AG Holder should read prior to considering the appellant’s quiet settlement offer. These documents confirm the appellant’s almost incredible allegation that the 2010 SSA computer is intentionally programmed to apply the 1982 “Jackson nonacquiescence policy” to reduce SSI benefits for 2010 Ford v Shalala class members. As a result, 2010 SSA funds may continue to pay for illegal 2010 “black operations” that are being conducted without the knowledge of Congress or the Commander-in-Chief President Obama.
On July 27, 2010, Robert filed de novo FOIA requests. The agencies’ FOIA Officers will be applying AG Holder’s March 19, 2010 FOIA Guidelines with the presumption of disclosure. By September, 2010, some of the FOIA requested “mosaic of documents” will be released. Other FOIA requests will likely be denied based on FOIA Exemptions 1, 3, and the Glomar Response defenses. Robert will appeal those decisions and file requests for E.O. 13,526 §1.5 declassification and §1.7 misclassification decisions re the classified documents. The new NARA § 3.7 National Declassification Center will make the final Article II appeal decisions.
Because the clock has been ticking for over four months for AG Holder to consider appellant’s quiet settlement offer, this lengthy White Paper also frames the issues, cases, and facts for supervising attorney U.S. Attorney Lynch. She has an August, 2010 duty to review the Robert VIII v DOJ, HHS, and SSA case file notes and e-mails prior to preparing a “settlement” memo for AG Holder recommending whether he should accept the offer of a quiet settlement prior to the September 3, 2010 reinstatement date in order to end the FOIA litigation in 2010.
1 AG Holder should decide by August 23, 2010 whether he intends to settle this FOIA action. In this way, there will be time to work out the details of a stipulation that would be presented to Judge Garaufis for his review and dismissal Order. If by August 31, 2010, Judge Garaufis does not issue an Order approving a settlement, then the appellant will file a September 3, 2010 reinstatement of the appeal and will present these issues to the Second Circuit.
The appellant will inform the §1.5 and §1.7 decision-makers they have a duty to read the Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA case file notes and e-mails along with the “mosaic” of Robert FOIA withheld classified documents. They will learn whether a 1984- 2010 DIA-CIA-FBI counterintelligence “plumber” unit had been tasked with protecting the funding source for the construction and maintenance of the 1984-2010 “do not exist” NSA Terrorist Surveillance Program (TSP) data banks now under the command and control of the DOD Cyber Command. If the §1.5 and §1.7 decision makers learn of 2010 violations of federal laws, then they will have 28 U.S.C. § 535(b) duties to report these law violations of AG Holder.
If the Robert VIII v DOJ, HHS, and SSA appeal is reinstated, then the appellant intends to file a 2010 Motion seeking Judge Garaufis’ pre-clearance Order for permission to file a putative FOIA action seeking the release of the “FBI Abshire”, 1982-2009 “OMB Jackson”, and the July 27, 2010 FOIA Requested DOJ, FBI, OMB, CIA, NARA, DOD, DNI, HHS and SSA connect-the-dots documents. The appellant will inform Judge Garaufis that he is seeking these connect-the-dots documents to cite to the Second Circuit in the Robert VIII v DOJ, HHS, and SSA appeal of his decisions including his Robert injunction Order. He will inform Judge Garaufis that the mosaic of documents being sought in the putative FOIA complaint reveal whether DOJ attorneys had withheld material facts from Judge Garaufis that they knew proved true Robert’s almost incredible illegal “black operations” allegations. He will argue that Judge Garaufis should decide the appellant’s Motion by applying the standards established by the Second Circuit in its June 9, 2010 Dinler v City of New York decision, whereby the District Court Judge is to read in camera the ex parte documents that may prove true § 1983 allegations. He will inform Judge Garaufis that he is seeking these documents to carry his heavy Bivens burden to prove that USG attorneys violated his First Amendment right of access to the courts.
In the reinstated Robert VIII v DOJ, HHS, and SSA appeal, the appellant will be citing to these documents as evidence that AG Holder and his chain of command attorneys have knowledge that if the FOIA-withheld documents were released in 2010, then the public and the Second Circuit would learn of the 1982-2009 serial violations of federal laws that continue in 2010. The appellant will argue that the Court remand the case to Judge Garaufis in order that he apply the Dinler standards to the Robert VIII v DOJ, HHS, and SSA documents along with the“mosaic of documents being sought in Robert’s 2010 Motion for a pre-clearance order.
Therefore, AUSA Mahoney should be preparing a heads up memo for U.S. Attorney Lynch when she prepares her settlement memo for AG Holder as to whether he should accept the appellant’s Robert VIII v DOJ, HHS, and SSA offer of a quiet settlement. As per the July 27, 2010 cover letters to AUSA Mahoney and U.S. Attorney Lynch, if there are any questions regarding this lengthy White Paper seeking a 2010 quiet settlement, then they should call. The appellant’s goal is for U.S. Attorney Lynch to provide AG Holder with accurate facts in her settlement memo in order that AG Holder accepts the appellant’s quiet settlement offer.
2 EXECUTIVE SUMMARY
The FOIA requested Robert VIII v DOJ, HHS, and SSA documents are connect-the-dots documents to the mosaic of documents that the appellant unsuccessfully sought in a series of Robert FOIA actions including Robert v National Archives, 1 Fed. Appx. 85 (2d Cir. 2001), Robert v U.S. Department of Justice, 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). On July 27, 2010, the appellant filed de novo FOIA requests for some of those documents. Those FOIA requests were based on AG Holder’s March 19, 2009 FOIA Guidelines and his April 7, 2010 Open Government Plan that established a “presumption of disclosure” of documents that are to assist the public in learning how the USG works. § A.
The appellant has placed U.S. Attorney Lynch on Notice of her K & A Radiologic Technology Services, Inc. v. Commissioner of the Department of Health and of the State of New York, 189 F. 3d 273 (2d Cir. 1999), supervisory duty to read the Robert FOIA withheld mosaic of documents, case file notes and e-mails, and the duty to remedy the due process violations visited upon the 2010 Ford v Shalala class members. K & A established a standard to apply to the government’s supervising attorneys. “(2) failed to remedy the alleged deprivation after learning of it.” Id. If U.S. Attorney Lynch reads any one set of the mosaic of documents, then she will recommend that AG Holder accept the appellant’s offer of a quiet settlement. § B.
When U.S. Attorney Lynch reads the de novo FOIA requested mosaic of connect-the- dots documents along with the 2005-2010 Robert VIII v DOJ, HHS, and SSA case file notes and e-mails, U.S. Attorney Lynch will learn of the existence of a 1984-2010 EDNY “stovepipe” that had bypassed EDNY U.S. Attorneys, including 1999-2001 U.S. Attorney Lynch. The stovepipe provided EDNY U.S. Attorneys with a “plausible deniability” defense to the serial violations of federal laws that included the National Security Act of 1947, the Foreign Intelligence Surveillance Act (FISA), the Posse Comitatus Act of 1878 (PCA) and the Social Security Act. U.S. Attorney Lynch will learn whether 2010 DOJ, FBI, OMB, NARA, CIA, DNI, DOD, HHS, and SSA stovepipes exist and lead to a 1982-2010 daisy-chain of “shadow government” patriots who pursuant to their “Unitary Executive” theory have claimed, without the knowledge of their Presidents, the Article II authority to violate laws they determine unconstitutionally encroach upon the President’s Article II duty to protect the nation from terrorists.
On December 29, 2009, President Obama issued E.O. 13,256, Classified National Security Information. It provides for the § 1.5 automatic declassification of documents after 25 years. As a result, the 2011 §3.7 National Declassification Center will read the 1985 sealed Robert v Holz withheld documents not released by automatic declassification (1985+25=2010).
U.S. Attorney Lynch will learn from reading the 1985-2010 Robert FOIA withheld classified connect-the-dots documents details of the “do not exist” existence of a “Top Secret America” that has used warrantless electronic surveillance information in violation of the “exclusivity provision” of the FISA and the limitations on military domestic law enforcement of the PCA. See Priest and Arkin, Top Secret America: A hidden world, growing beyond control, Washington Post,7-19-10, http://projects.washingtonpost.com/top-secret-america/articles/a- hidden-world-growing-beyond-control/ USG attorneys withheld these facts in the Robert FOIAs.
3 1. The “Jackson nonacquiescence policy” and SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee testimony that the nonacquiescence policy had ended
The appellant is seeking the release of the Robert VIII v DOJ, HHS, and SSA documents to prove to AG Holder that SSA Commissioner Astrue, his client, is implementing a Jackson v. Schweiker, 683 F. 2d 1076 (7th Cir. 1982), nonacquiescence policy by programming the SSA computer to apply the “Jackson regulation,” 20 C.F.R § 416.1130 (b), only to the Seventh Circuit, reducing SSI benefits to millions of Ford v Shalala class members who do not reside in the Seventh Circuit states of Illinois, Indiana, and Wisconsin. As a result, AG Holder is breaching his Article II “ take Care” duty by not enforcing the SSI regulation equally. § C.
On January 24, 2007, SSA Commissioner Nominee Astrue testified at his Senate Finance Committee confirmation hearing and advised the Members that the nonacquiescence policy had ended prior to his becoming the HHS General Counsel in 1989. “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.” Emphasis Added. http://finance.senate.gov/hearings/testimony/2007test/012407matest.pdf.
This July 27, 2010 White Paper answers the appellant’s how-could-it-have-happened question that was presented to the Second Circuit in his December 18, 2009 Robert VIII v DOJ, HHS, SSA Motion seeking a Second Circuit CAMP pre-argument settlement conference:
How could it have happened that in 2010 SSA Commissioner Astrue is programming the 2010 SSA computer to apply the 1982-2010 “Jackson nonacquiescence policy” of HHS General Counsel del Real to reduce 2010 Ford v Shalala nationwide class members’ benefits contrary to the sworn January 24, 2007 Senate Finance Committee testimony of SSA Commissioner Nominee Astrue that the nonacquiescence policy had ended prior to his becoming HHS General Counsel in 1989, and contrary to the 2000 Christensen administrative law decision of Justice Thomas that the law to be applied is the duly promulgated regulation and not an agency’s attorney’s interpretation of the regulation?
When U.S. Attorney Lynch reads the Robert VIII v DOJ, HHS, and SSA case file notes and e-mails, she will know one answer to this Jackson question is that the appellant’s almost incredible allegations are true. U.S. Attorney Lynch will learn that AUSA Mahoney’s 1998- 2010 command and control officers have not been EDNY U.S. Attorneys, but “main Washington” attorneys. These attorneys have implemented the Unitary Executive theory of David Addington, the 1981-1984 CIA Assistant General Counsel, 1984-1987 Counsel to the House Committee on Intelligence, 1987 Special Assistant to President Reagan, 1988 Deputy Assistant to President Reagan, 1989-1992 Special Assistant to Defense Secretary Cheney, 1992- 1993 DOD General Counsel, and the 2001-2008 Counsel-Chief of Staff for VP Cheney.
When considering appellant’s quiet settlement offer, AG Holder will be reviewing this Unitary Executive theory. He will have an opportunity to end its 2010 implementation.
4 2. The 1986-2010 DOJ “Barrett nonacquiescence policy” and AG Holder’s 2010 28 U.S.C. § 530D duty to report nonacquiescence cases to the Congress
The appellant is also seeking the release of the Robert VIII v DOJ, HHS, and SSA documents to prove to AG Holder that AUSA Mahoney’s command and control officers have ordered her not to follow the Second Circuit’s holding that the government cannot withhold material facts from an Article III Judge to protect DIA-CIA-FBI sources and methods. “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. § D.
Pursuant to 28 U.S.C. § 530D, AG Holder has a duty to report nonacquiescence cases to Congress. However, pursuant to President Bush’s November 2, 2002 Presidential Signing Statement, there is a § 530D “exception” whereby the AG is not to inform the Congress of a classified nonacquiescence case if the revelation of the nonacquiescence policy would place the national security at risk. The Robert FOIA case file notes reveal whether Barrett is a classified nonacquiescence case. Upon information and belief, AGs Ashcroft, Gonzales, (Acting) Keisler, and Mukasey did not inform Congress that Barrett is a nonacquiescence case.
The appellant has filed a July 27, 2010 FOIA request for the release of the OLC “Barrett nonacquiescence policy” documents. DOJ Chief FOIA Officer-Associate AG Thomas Perrelli will learn whether Acting AAG of the OLC David Barron will release an unclassified “Barrett nonacquiescence policy” document or will be instructed to use the “Glomar Response” defense and neither admit nor deny the existence of the “Barrett nonacquiescence policy” document.
In the alternative, Chief FOIA Officer-Associate AG Perrelli may inform the appellant that there is no “Barrett nonacquiescence policy” document because the DOJ acquiesces to the Second Circuit’s Barrett decision. If so, then after U.S. Attorney Lynch reads Robert VIII v DOJ, HHS, and SSA case file notes and e-mails, she will know whether rogue DOJ attorneys have implemented a 1986-2010 de facto “Barrett nonacquiescence policy” and intentionally withheld material facts from Judge Garaufis and the Second Circuit. If so, then U.S. Attorney Lynch would have a duty to inform AG Holder. Then AG Holder would have a 28 U.S.C. § 530D duty to report to Congress the cases in which the de facto “Barrett nonacquiescence policy” had been implemented by DOJ attorneys without the 28 U.S.C. § 516 authority of any AG.
3. U.S. Attorney Lynch’s duty to cure misrepresentations of fact and law made to Judges
If, after U.S. Attorney Lynch fulfills her K & A supervisory duty to review the Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA documents, case files notes and e-mails, she determines that the implementation of a de facto “Barrett nonacquiescence policy” litigation strategy resulted in USG officials and attorneys making misrepresentations of the law or facts, then U.S. Attorney Lynch will have an April 1, 2009 NYS Rules of Professional Conduct Rule 3.3(a)(3) duty to cure USG officials and attorneys misrepresentations of fact and law made to tribunals. “If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of the falsity, the lawyer shall take responsible remedial measures, including if necessary disclosure to the tribunal.” Id. Emphasis added. § E.
5 If, after U.S. Attorney Lynch fulfills her K & A supervisory duty to review the Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA documents, case files notes and e-mails, she determines that DOJ attorneys intended to deceive Judge Garaufis, the Second Circuit and party plaintiff Robert, then she has a duty to inform AG Holder that these DOJ attorneys violated NYS Judiciary Law § 487 which provides: “1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or …” § F.
If, after U.S. Attorney Lynch fulfills her K & A supervisory duty to review the Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA documents, case files notes and e-mails, she determines that DOJ attorneys had a good faith intent to deceive Article III Judges in order to protect DIA-CIA-FBI sources and methods, then AG Holder has a Chambers v Nasco, 111 S. Ct. 2123 (1991), “fraud upon the court” duty to inform the deceived Article III Judges who may decide to conduct independent investigations. “Moreover, a court has the power to conduct an independent investigation whether it has been the victim of a fraud.” Id. at 2132. § G.
If, after U.S. Attorney Lynch fulfills her K & A supervisory duty to review the Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA documents, case files notes and e-mails, she determines that FRCP 11 signed pleadings contained misrepresentations of fact and law, then she has a duty to refer the signed pleadings to the Office of Professional Responsibility (OPR). Then Acting OPR Director Mary Patrice Brown can apply the July 6, 2005 OPR Analytical Framework and determine whether “professional misconduct” or “reckless disregard” of standards, or “poor judgment” occurred when the misrepresentations were not cured. § H.
4. The DOJ EDNY stovepipe that bypassed the EDNY U.S. Attorneys and the DOJ main Justice stovepipe that bypassed AG Holder’s 2010 chain of command attorneys, lead to a 2010 daisy-chain of shadow government patriots who make classified decisions
After U.S. Attorney Lynch fulfills her K & A supervisory duty, she will learn whether a EDNY stovepipe has existed that bypassed the 1982-2010 EDNY U.S. Attorneys: Raymond J Dearie (1982-1986), Reena Raggi (1986), Andrew J. Maloney (1986-1992), Mary Jo White (1992-1993), Zachary W. Carter (1993-1999), Loretta E. Lynch (1999-2001), Alan Vinegrad (2001-2002), Roslynn R. Mauskopf (2002-2007) and (Acting) Benton J. Campbell (2007-2010). She will learn whether this stovepipe resulted in these EDNY U.S. Attorneys not knowing their EDNY AUSAs had command and control officers who, pursuant to their extreme Unitary Executive theory, ordered them to implement the 1982 Jackson and 1986 Barrett nonacquiescence polices to protect DIA-CIA-FBI sources and methods. § I.
After U.S. Attorney Lynch fulfills her K & A supervisory duty, she will know whether a 2010 main Washington DOJ stovepipe exists which bypasses AG Holder and his chain of command attorneys who have not been presented with the appellant’s quiet settlement offer. She will know whether a 2009-2010 main Washington DOJ stovepipe exists because AUSA Mahoney’s 2009-2010 command and control officer does not want AG Holder’s chain of command attorneys to fulfill their 28 U.S.C. § 535(b) duty to report to AG Holder their knowledge that SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee testimony that the “nonacquiescence” policy had ended prior to his becoming the HHS General Counsel in 1989, remains in July, 2010 as uncured false sworn Senate testimony. § J.
6 The appellant has placed U.S. Attorney Lynch on Notice that the EDNY and main Justice stovepipes lead to a daisy-chain of shadow government patriots who implemented the Unitary Executive theory. They have had a license to lie-by-omission to their Presidents in order to provide their Presidents with a plausible deniability defense to the serial violations of federal laws that they knew were impeachable offenses. U.S. Attorney Lynch can read the 2010 Project National Security Reform’s February 10, 2010 Report and contact NCTC Director Michael Leiter to verify the existence of the daisy-chain of shadow government patriots. § K.
In September, 2010, pursuant to President Obama’s December 29, 2010 E.O. 13,256, the appellant will file a request for § 1.5 declassification decisions re documents withheld pursuant to “Glomar Response” defenses. The declassifying officers will learn that these documents prove true the appellant’s almost incredible allegations that the 1985 Past is Prologue to 2010. § L.
In September, 2010, pursuant to President Obama’s December 29, 2010 E.O. 13,256, the appellant will be filing a request for § 1.7 misclassification decisions as to the “FBI Abshire”, “OMB Jackson” and Robert withheld classified documents. These decisions will determine whether the documents were misclassified in order to cover up violations of federal laws, or prevent the embarrassment of Unitary Executive patriots, or delay the release of documents that would trigger a Ford class Bowen v City of New York clandestine policy remedy. § M.
The appellant has requested that AAG of the Office of Legal Policy (OLP) Christopher Schroeder identify the “appropriate authorities” who decide whether “Glomar Response” documents are not subject to President Obama’s E.O. 13,256 § 1.5 declassification and § 1.7 misclassification decisions. He warned that E.O. 13,256 is fatally flawed if unidentified “appropriate authorities” can decide that “Glomar Response” decisions are not subject to declassification and misclassification decisions because those documents reveal 1985-2010 decisions not to acquiesce to the 1985 Mitchell v Forsyth illegal wiretapping decision. § N.
The appellant has placed U.S. Attorney Lynch on Notice that that she has a K & A duty to read AAG of the OLC Jack Goldsmith’s May 21, 2004 memo to HHS General Counsel Azur that the “whistleblower” statute does not apply to HHS employees who seek to report a crime to Congressional Oversight Committees. She will have duty to advise HHS Secretary Sebelius, her client, whether that OLC memo applies to 2010 HHS employees who know that SSA Commissioner Astrue’s January 24, 2007 Senate testimony that the nonacquiescence policy ended prior to his becoming HHS General Counsel in 1989, was false. This is a fact that HHS Secretary Sebelius should know when she considers the appellant’s offer of a quiet settlement whereby SSA Commissioner Astrue makes true his January 24, 2007 Senate testimony. § O.
AAG of the OLC Goldmith’s May 21, 2004 “whistleblower” memo takes on greater importance if AAG of OLP Schroeder learns that the E.O.13,256 “appropriate authorities” are patriot-members of the 1982-2010 shadow government who have made Top Secret decisions without the knowledge of their Presidents in order to provide their Presidents with a plausible deniability to the violations of federal laws that the attorney patriots knew were impeachable offenses. Former-AAG of the OLC Jack Goldsmith explained in his Memoir The Terror Presidency, the “genius” of the patriots who have implemented the extreme “Unitary Executive” theory of Vice President Cheney’s 2001-2008 Counsel-Chief of Staff Addington:
7 They were geniuses at this,” Goldsmith said. “they could divide up all these problems in the bureaucracy, ask different people to decide things in their lanes, control the facts that they gave them, and then put the answers together to get the result they want.” Conflict Over Spying Led White House to Brink. Gellman, Washington Post, 9-14-08.” Emphasis Added. Internet p. 3 of 9 of excerpt from The Terror Presidency.
After reading the Robert FOIA classified documents withheld pursuant to the “Glomar Response” defense, AAG of the OLC Schroeder will know whether SSA Commissioner Astrue is a covered agent. He will be able to answer a “Glomar Explorer II test” question of who decided that SSA Commissioner Astrue should not inform President Obama that the 2010 SSA computer has been “rigged” to apply the “Jackson nonacquiescence policy” to generate 2010 off-OMB Budget funds to pay for the “do not exist” 2010 NSA TSP data banks.
5. The Supreme Court’s 1986 Bowen v City of New York, 1988 Schweiker v Chilicky, and 2000 Christensen v Harris holdings will result in AG Holder answering the “Jackson” question and solving the “Gordon riddle” whether the “nonacquiescence” policy ended
After U.S. Attorney Lynch reads the Robert VIII v DOJ, HHS, and SSA case file notes and e-mails, she will know whether SSA Commissioner Astrue has implemented a “clandestine” policy that triggers the Bowen v City of New York, 106 S. Ct. 2022 (1986) equitable tolling remedy that would cure violations of the 1994-2010 Ford v Shalala nationwide certified class members’ due process rights. “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. § P.
If U.S. Attorney Lynch determines that the Bowen v City of New York remedy applies, then she will recommend that AG Holder should agree to the quiet settlement offer because he possesses the Schweiker v. Chilicky, 108 S. Ct. 2460 (1988), “normal sensibilities” of human beings and the remedy to cure due process violations is to be measured in months. “The trauma to respondents, and thousands of others like them, must surely have gone beyond what anyone of normal sensibilities would wish to see imposed on innocent disabled citizens.” Id. 2470. § Q.
If U.S. Attorney Lynch determines that the Bowen v City of New York remedy applies to the Ford v Shalala remedy, then she should recommend to AAG of the Civil Division West that SSA Commissioner Astrue acquiesce to the Christensen v. Harris County, 120 S. Ct. 1655 (2000), administrative law holding by including citations to the SSI regulations, including the Jackson regulation, 20 C.F.R. 416.1130 (b), in the Ford remedy Notices sent to cure the due process violations, “To defer to the agency's position would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.” Id. 1663 (2000). § R.
U.S. Attorney Lynch will know that the Bowen v City of New York clandestine policy remedy applies when she reads the 1982-1990 Ruppert v Bowen, 871 F. 2d 1172 (2d Cir. 1989) case file notes. She will learn from reading the September 4, 1985 case file notes of a conference held in Judge Altimari’s Chambers, whether AAG of the Civil Division Richard Willard knew that the July 25, 1985 House Judiciary Subcommittee testimony of Acting SSA Commissioner Mc Steen and DAAG Kuhl that the nonacquiescence policy had ended, was false testimony. § S.
8 U.S. Attorney Lynch will know that the Bowen v City of New York clandestine policy remedy applies when she reads the 1986-1996 Gordon v. Shalala, 55 F.3d 101 (2d Cir. 1995), cert. den, 517 U.S. 1103 (1996), case file notes. She will solve the Gordon riddle whether Associate WH Counsel Astrue’s June 22, 1989 Senate Finance Committee testimony that the nonacquiescence policy had ended was false, or whether SG Days and AAG of the Civil Division Hunger made false representations of fact in their Gordon February, 1996 Brief in opposition to the Gordon petition for a writ of certiorari defending the Jackson and Ruppert nonacquiescence policies. If U.S. Attorney Lynch solves the Gordon riddle by determining that HHS General Counsel Nominee Astrue’s June 22, 1989 Senate testimony was false, then she will know that if AAG Holder accepts the quiet settlement offer, then this will make true SSA Commissioner Astrue’s June 22, 1989 and January 24, 2007 Senate testimony in 2010. § T.
AG Holder will know the answer to the how-could-it-have-ever-happened Jackson question presented in the Robert VIII DOJ, HHS, and SSA December 18, 2009 Motion for a pre- argument conference, after reading the July 27, 2010 FOIA requested HHS and SSA documents. Then AG Holder can request that OIPR Director Cass Sunstein prepare a cost benefit analysis for amending the Jackson regulation, 20 C.F.R. 416.1130 (b), to apply equally in all 50 states, and to apply that regulation retroactively to the 1994-2010 Ford v Shalala class members. § U.
6. AG Holder’s duty to cure 1982-2010 DOJ attorneys’ misrepresentations of law and fact
AG Holder has a K & A duty to read for accuracy the 1999-2000 FRCP 11 signed pleading filed by DOJ attorneys in Robert v National Archives, 1 Fed. Appx. 85 (2d Cir. 2001), including any 5 U.S.C. § 552(c)(3) ex parte Declarations, along with the case file notes and the de novo FOIA requested “Robert v National Archives ‘Bulky Evidence File’” documents. If AG Holder learns that U.S. Attorney Lynch implemented the “Barrett acquiescence policy” and withheld material facts from Judge Wexler and the Second Circuit, then AG Holder has a NYS ethics Rule 3.3 duty to cure the misrepresentations of fact and law made to the Judges. § V.
AG Holder has a K & A duty to read for accuracy the 1999-2000 FRCP 11 signed pleadings filed by DOJ attorneys in Robert v U.S. Department of Justice, 2001 WL 34077473 (EDNY), aff’d 26 Fed. Appx. 87 (2d Cir. 2002), along with the case file notes and e-mails. AG Holder can determine whether the FOIA due diligence searches were shams after DAG Holder had courageously decided in 2000 not to perfect U.S. Attorney Lynch’s Ford appeal. § W.
AG Holder has a K & A duty to read for accuracy the 2005-2007 FRCP 11 signed pleadings filed by U.S. Attorney Mauskopf in Robert II v HHS, 217 Fed. Appx. 50 (2d Cir. 2007), along with the de novo FOIA requested “CMS Jackson” documents. The Robert II v HHS case file notes and e-mails reveal whether 2006-2007 HHS General Counsel Meron knew that SSA Commissioner Astrue’s January 24, 2007 testimony was false. AG Holder can consult with Acting HHS General Counsel Childress and learn why and how 1982-2010 HHS General Counsels have implemented the HHS nonacquiescence policy. AG Holder will learn whether the 1988 Duggan v Bowen admonition by Judge Sporkin, the 1981-1985 CIA General Counsel, of HHS Secretary Bowen and AG Meese, could equally apply to HHS Secretary Sebelius and AG Holder. “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. § X.
9 AG Holder has a K & A duty to read for accuracy the 2002 FRCP 11 signed ex parte Declaration filed by a main Justice attorney in Robert III DOJ, cv 01-4198 (Geshon, J), that explained FBI Director Mueller’s use of the “Glomar Response” defense to withhold the “Recarey extradition” documents relied upon by FBI Director Judge Freeh when he decided not to extradite IMC President Recarey from Spain. That FBI ex parte Declaration reveals whether FBI Director Judge Webster knew in 1985 that a “black operation” had been conducted at IMC. AG Holder can consult with FBI General Counsel Caproni who can connect-the-dots of the FBI’s Robert III v DOJ ex parte Declaration with the de novo FOIA requested 1985 Robert II v CIA and DOJ “FBI Revell”, 1986 “FBI Abshire”, 1987 FBI “Perot” and 1987 FBI “IMC Investigation Final Report” at issue in the Robert VIII v DOJ, HHS, and SSA appeal. § Y.
7. AG Holder’s duty to inform OMB, CIA, DOD, DNI, HHS, and SSA General Counsels of their duty to inform their agencies’ Chief FOIA Officers to comply with their agencies’ Open Government Plans and President Obama’s E.O. 13,256 re classified documents
AG Holder has a duty to inform OMB General Counsel and Senior Policy Advisor Bansal that OMB Chief FOIA Officer Associate Deputy Director for Administration Shea must comply with former-OMB Director Orszag’s April 7, 2010 Open Government Plan and President Obama’s E.O. 13,256 standards and apply them to the 1982-2009 “OMB Jackson” documents that have been withheld pursuant to the use of the “Glomar Response” defense. The 1982-2009 “OMB Jackson” documents tabulate the annual amount of Congressionally appropriated SSI funds that were not paid to the SSI recipients because the HHS-SSA computer was programmed to apply the “Jackson nonacquiescence policy.” These documents will reveal whether “Jackson nonacquiescence policy” funds were used as off-OMB Budget funds that paid for the “do not exist” 1984-2010 NSA TSP and PSP data banks that were not paid for with classified OMB budget funds without the knowledge of the 1982-2009 Presidents and OMB Directors. § Z.
AG Holder has a duty to inform CIA General Counsel Preston that CIA Chief FOIA Officer Chief Information Officer Tarasiuk, has a duty to apply CIA Director Panetta’s Open Government Plan and President Obama’s E.O. 13256 standards to the 1985 Robert II v CIA and DOJ “North Notebook” withheld classified documents that are subject to the 25 year §1.5 automatic declassification standard. Those documents reveal whether FBI Director Judge Webster knew in 1985 that CIA Director Casey was implementing a black operation at IMC and using unaudited HHS funds to pay for medical supplies and treatment of the Contras in violation of the Boland Amendment. They also reveal whether FBI Director Judge Webster and AG Meese knew that a counterintelligence “plumber” unit knew HHS General Counsel del Real was a covered agent who diverted HHS “nonacquiescence” funds to IMC in violation the National Security Act §413 Presidential reporting duty, the PCA, and Social Security Act. § AA.
AG Holder has a duty to inform NARA General Counsel Stern that NARA Chief FOIA Officer General Counsel Stern has a duty to apply the NARA Open Government Plan and President Obama’s E.O. 13,256 standards to NARA “Peter Keisler Collection”, NARA “Perot” and NARA “Robert v National Archives ‘Bulky Evidence File’” documents. AG Holder will learn whether these three sets of de novo requested NARA connect-the-dots documents prove true the appellant’s almost incredible allegations. If an intelligence community agency objects to the declassification of the NARA documents, then the ISCAP Board will read and decide. § BB.
10 AG Holder has a duty to inform DOD General Counsel Johnson that DOD Chief FOIA Officer General Acting Director, Administration and Management Rhodes has a duty to apply the DOD Open Government Plan and President Obama’s E.O. 13,256 standards to the decision to release the FOIA requested DOD “NSA TSP and PSP data banks access guidelines” which the DOD Cyber Command is using when accessing information from the “do not exist” NSA data banks. This is a timely FOIA request because of the Washington Post’s investigative report re the “do not exist” NSA data banks. Top Secret America: A hidden world, growing beyond control. AG Holder will learn whether the 2010 NSA Guidelines would have prevented the 1980s FISA and PCA breaches that are revealed in the Robert v Holz and Robert VII v DOJ, HHS, and SSA case file notes, e-mails and connect-the-dots classified documents. § CC.
AG Holder has a duty to inform DNI General Counsel Litt that DNI Chief FOIA Officer DNI Acting Deputy Director for Administration Baer has a duty to apply the DNI Open Government Plan and President Obama’s E.O. 13,256 standards to the decision to release the FOIA requested DNI “NCTC TSP and PSP data banks access guidelines” which NCTC Director Leiter applies when the NCTC staff access information from the “do not exist” NSA data banks. This is an especially timely FOIA request if President Obama’s NDI Nominee Clapper is confirmed. He was President Clinton’s 1992-1995 Director of the Defense Intelligence Agency (DIA) and knew whether the use of the “do not exist” 1984-1995 NSA TSP was withheld from President Clinton to provide him with a “plausible deniability” defense to the violations of the FISA, PCA, National Security Act, and Social Security Act which were impeachable offenses. He is the 2007-2010 Under Secretary of Defense for Intelligence who in 2007, after DOD Secretary Rumsfeld retired and with DOD Secretary Gates’ approval, dismantled the NSA PSP because the TALON program violated the FISA and the PCA. § DD.
AG Holder has a duty to inform Acting HHS General Counsel Childress that HHS Chief FOIA Officer Acting Assistant Secretary for Public Affairs Hall has a duty to apply the HHS Open Government Plan and President Obama’s E.O. 13,256 standards to the de novo requested HHS documents. Those HHS documents reveal whether HHS General Counsel Nominee Astrue’s June 22, 1989 and SSA Commissioner Nominee Astrue’s January 24, 2007 Senate testimony that the nonacquiescence policy had ended, remain as uncured false testimony. The documents will also reveal whether HHS General Counsel del Real and HHS General Counsel Astrue were covered agents. AG Holder will learn why Acting HHS General Counsel Childress violated his 28 U.S.C. 535(b) duty to report to AG Holder his knowledge that the January 24, 2007 Senate testimony that the nonacquiescence policy had ended was false testimony. § EE.
AG Holder has a duty to inform SSA General Counsel Black that SSA Chief FOIA Officer SSA General Counsel Black has a duty to apply the SSA Open Government Plan and President Obama’s E.O. 13,256 standards to the de novo FOIA requested SSA documents. Those SSA documents reveal that SSA Commissioner Astrue knows that the due process violations of the millions of Ford v Shalala class members continue to be violated in 2010 because the Ford “remedy” Notices do not include citations to the regulations upon which the benefits are being reduced or terminated. They also reveal that SSA Commissioner Astrue knows his January 24, 2007 Senate testimony remains as uncured false testimony. AG Holder can use these documents to learn why Acting SSA General Counsel Black breached his 28 U.S.C. 535(b) duty to report to AG Holder that the January 24, 2007 testimony was false. § FF.
11 AG Holder has a duty to read the de novo FOIA requested Robert v Holz, Robert VII v DOJ, and Robert VIII v DOJ documents and case file notes and e-mails. These documents provide AG Holder with the answers to the Jackson question and the Gordon riddle because he will learn the names of the command and control officers of the EDNY AUSAs who were not the EDNY U.S. Attorneys. Then AG Holder can decide whether those answers provide a reason for agreeing to the offer of a quiet settlement so that the appeal is not reinstated. § GG.
AG Holder has a duty to read the de novo FOIA requested documents that were sought in the September 3, 2008 Robert VIII v DOJ, HHS, and SSA Motion for a preclearance order to file the putative FOIA complaint. After AG Holder reads the case file notes and e-mails re the 2005 Motion for the Robert injunction to prevent the filing of any new FOIA complaints, he will know whether AAG of the Civil Division Keisler implemented the “Barrett nonacquiescence policy” and withheld material facts from Judge Garaufis for the purpose of deceiving Judge Garaufis. These are important 2005 and 2008 DOJ mens rea facts for AG Holder to know when he determines whether DOJ attorneys violated Robert’s First Amendment right of access to the courts. This is a factor when he considers the appellant’s offer of a quiet settlement. § HH.
AG Holder has a duty to read the de novo request for the three documents that were subject to Judge Garaufis’ order that the DOJ conduct a more due diligence search. AG Holder will learn whether the FBI-DOJ-HHS joint task force “IMC Investigation Final Report” document exists or does not exist. As it once existed, AG Holder will learn whether the DOJ- FBI document was purged and who ordered the purging of this document. AG Holder will learn whether “Barrett nonacquiescence policy” and “Christensen nonacquiescence policy” documents exist or do not exist. If he determines that the documents do not exist, then he will have a due diligence duty to learn who made the ad hoc decisions to implement these policies. § II.
AG Holder has a duty to contact the former EDNY U.S. Attorneys and learn whether they knew that they were implementing the 1982-2010 “Jackson nonacquiescence policy” that Acting SSA Commissioner Mc Steen, SSA Chief Counsel Gonya, and DAAG Kuhl informed the July 25, 1985 House Judiciary Subcommittee had ended on June 3, 1985. If he learns that they did not know that they were implementing the “Jackson nonacquiescence policy” then AG Holder has a due diligence duty to learn the names of the command and control officers of the EDNY AUSAs who ordered the implementation of the “Jackson nonacquiescence policy” that the Congressional Oversight Committees was informed had ended so that there was no need for legislation to end the HHS nonacquiescence policy of HHS General Counsel del Real. § JJ.
8. U.S. Attorney Lynch has a duty to inform AG Holder that the appellant will argue in the reinstated appeal that AG Holder has a duty to follow Second Circuit decisions.
The White Paper §§ KK-XX discuss specific cases and facts for AUSA Mahoney to review in order that she provides an accurate heads up memo for U.S. Attorney Lynch in order that U.S. Attorney Lynch provides an accurate settlement memo for AG Holder to consider when he recommends to HHS Secretary Sebelius and SSA Commissioner Astrue whether they should accept the quiet settlement offer. These are Second Circuit cases to which the appellant would cite in his Robert VIII v DOJ, HHS, and SSA Second Circuit Brief that are the standards that the USG should have applied in Robert VIII v DOJ, HHS, and SSA.
12 The Second Circuit’s 2002 U.S. v Reyes, 2005 National Council, 2006 Doe I and Doe II, 2008 U.S. v Aref, 2008 Doe v Mukasey, 2009 Doe v CIA, 2009 NY Times Company to Unseal Wiretaps & Search Warrant Materials, 2009 Arar v Ashcroft, 2009 Wilson v CIA, 2009 Wilner v NSA, 2010 Alexander v Cahill, 2010 Bloomburg, and 2010 Dinler v City of New York all have clear holdings. Therefore, if the Robert VIII v DOJ, HHS, and SSA appeal is reinstated, then AG Holder will have his own K & A duty as the AG to make sure that U.S. Attorney Lynch follows these decisions in the USG’s Second Circuit Brief filed on behalf of appellees AG Holder, HHS Secretary Sebelius, and SSA Commissioner Astrue. §§ KK-XX.
AG Holder’s 2010 speeches have been extolling the implementation of his March 19, 2010 FOIA Guidelines. §§ YY, ZZ. Therefore, AG Holder should know whether his own DOJ attorneys are breaching President Obama’s January 24, 2009 FOIA standard:
The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. Emphasis Added. http://www.whitehouse.gov/the_press_office/FreedomofInformationAct/
AUSA Mahoney should inform U.S. Attorney Lynch whether they each have conflicts of interest because the FOIA classified documents contain evidence that would carry Robert’s Ashcroft v Iqbal “plausibility” burden to prove that they intentionally implemented the “Barrett nonacquiescence policy” in 1999-2000. If those documents reveal that in Robert v National Archives, and Robert v DOJ they each had breached their NYS Judiciary Law § 487 duty not to deceive Article III Judges and party plaintiff Robert, then the documents contain evidence for the appellant’s putative Bivens complaint based on a Christopher v. Harbury breach of his First Amendment right of access to the Courts. AG Holder should consider this conflict of interest issue as a factor when he considers the appellant’s offer of a 2010 quiet settlement § AAA.
There should be no 2010 question of fact of DOJ attorney-patriot disciples of former-VP Counsel-Chief of Staff Addington being fifth column attorney-patriots who are lying-by- omission to President Obama regarding 2010 violations of the Social Security Act, § 413 (a) of the National Security Act, the exclusivity provision of the FISA, and the limitation on military domestic law enforcement provisions of the PCA. This is especially the case if 2010 stovepipes within DOJ, FBI, OMB, CIA, DOD, DNI, HHS, and SSA lead to a 2010 daisy-chain of shadow government patriots whose Commander-in-Chief is not President Obama. If so, then Robert VIII v DOJ, HHS, and SSA documents would be evidence to identify the Commander-in- Chief of the “Top Secret America” as identified by the Washington Post investigative reporters.
In summary, based on AG Holder’s April 7, 2010 Open Government Plan, AUSA Mahoney should provide an accurate heads up memo to U.S. Attorney Lynch. Then U.S. Attorney Lynch can provide a settlement memo to AG Holder advising whether he should accept the appellant’s quiet settlement offer prior to the September 3, 2010 reinstatement date. Then AG Holder can fulfill President Obama’s January 19, 2009 FOIA mission in 2010.
13 A. AG Holder’s April 17, 2010 Open Government Plan that establishes the transparency standard that AG Holder should apply when he considers the quiet settlement offer
AUSA Mahoney is placed on Notice of AG Holder’s April 7, 2010 Open Government Plan that establishes the standard that AG Holder should apply when he considers the quiet settlement offer. The Open Government Plan highlights AG Holder’s mission of openness and transparency in order that the public knows how the government works. The purpose of the Robert FOIAs has been to secure the release of documents that reveal how the DOJ “Jackson nonacquiescence” policy has “worked” from 1982-2010. Therefore, the mission of the Open Government Plan should be a factor in AG Holder’s decision whether to accept the offer of a quiet settlement whereby SSA Commissioner Astrue makes true his January 24, 2007 Senate Finance Committee so as to eliminate the need for a September 3, 2010 appeal reinstatement.
AG Holder’s April 7, 2010 Open Government Plan to implement his March 19, 2009 FOIA Guidelines, explained in the Executive Summary that DOJ can fulfill both its transparency and accountability mission and its legal counseling and national security responsibilities:
Under President Obama’s leadership and the Open Government Directive initiated by the Office of Management and Budget (OMB) on December 8, 2009, the Department’s responsibility for opening up the processes of government runs deeper. While the Department’s law enforcement and legal counseling responsibilities cannot be met with full transparency, the core values that underlie the Open Government initiative- transparency, participation and collaboration—can, used properly, enhance the Department’s agility to fulfill its missions and serve the public. Id. i. Emphasis Added. http://www.justice.gov/open/doj-open-government- plan.pdf.
AG Holder informed the public that he would be publishing on the DOJ website more DOJ Briefs and filings in important cases that explain DOJ policies to the public:
And the Department will be releasing more information about its representation in US courts; where the public has traditionally relied on third parties to provide brief, incomplete descriptions of what it has done in court, the Department will now be proactively posting more of its significant courts filings in a single location. Id. i. Emphasis Added.
AG Holder explained the Open Government Plan was based on his FOIA Guidelines:
This Plan continues the work of the Attorney General’s March 19, 2009 Memorandum for Heads of Government Departments and Agencies regarding the FOIA, sometimes referred to as “the Attorney General’s Guidelines.” That memorandum highlighted, among other things, two mandates: First, the memorandum emphasized that FOIA is everyone’s responsibility. If we are to open up the government, officials and employees at every level must dedicate themselves to taking a second look
14 at old practices and considering, for example, whether information that has long been withheld could be released to the public without harm. Second, the memorandum exhorted work activity to identify ways in which their agency can provide accurate information without being asked. As discussed below, the early results of the Attorney General’s memorandum have shown significant improvement in the performance of many agencies’ efforts to implement the FOIA. In that sense, the Department began its own Open Government initiative more than a year ago. Id. 1. Emphasis Added.
AG Holder established a standard that DOJ policies should be made more transparent:
The Department’s national security and legal counsel often require it to maintain confidentiality over critical information. However, in many of the Department’s work, it can and must be more transparent.
Where the Open Government Principles of transparency, participation and collaboration can enable the Department to better fulfill its missions, the Department must seize those opportunities. Where the Department can better inform the public without compromising its missions, it should. Id. 1. Emphasis Added.
AG Holder explained the goal of improving the accuracy of DOJ information:
As the Department strives to make additional information available in a more timely manner, there is an increased need to ensure the accuracy of that data. The Department recognizes that providing accurate information is an important government responsibility. To help ensure the quality information provided to the public, the Department has guidelines for components to use as a foundation for developing detailed procedures related to data quality. The Department’s information-quality guidelines can be found at http://www.justice.gov/iqpr/dojinformationqualityguidelines.htm. These guidelines represent the commitment of the Department’s senior leadership to ensuring that information provided to outside parties has been subjected to quality control procedures and meets the Department’s information quality standards. Id. 2-3. Emphasis Added.
AG Holder explained that DOJ Chief FOIA Officer Thomas Perrelli will chair quarterly Chief FOIA Officer Meetings. Because he is also the Associate AG, he is one of AG Holder’s chain of command supervising attorneys of 2010 U.S. Attorney Lynch:
Given the Department’s leadership role in the FOIA, the Associate Attorney General, who is the highest-ranking Chief FOIA Officer in government, will convene quarterly meeting of Chief FOIA Officers from the largest agencies to exchange ideas, promote the goals of the
15 President’s and the Attorney General’s directives and sustain the commitment to openness and transparency. These meetings will begin concurrently with the issuance of this Plan. Id. 6. Emphasis Added.
Given the gravity of appellant’s allegations and his de novo July 27, 2010 FOIA requests for DOJ, FBI, OMB, NARA, CIA, DOD, DNI, HHS, and SSA documents, DOD Chief FOIA Officer Perrelli can communicate directly with those agencies’ Chief FOIA Officers: OMB Associate Deputy Director for Administration Robert Shea, NARA General Counsel Gary Stern, CIA Chief Information Officer Adolfo Tarasiuk, DOD Acting Director, Administration and Management Michael Rhodes, DNI Acting Deputy Director for Administration Lawrence Baer, HHS Acting Assistant Secretary for Public Affairs Bill Hall, and SSA General Counsel David Black. This should eliminate the stovepipes that prevent accurate information from being provided President Obama. AG Holder will learn the names of the 1982-2010 daisy-chain of shadow government patriots who pursuant to their extreme Unitary Executive theory, have been making Top Secret decisions on behalf of their Presidents which violate federal laws that are impeachable offenses, but which were made without the knowledge of their Presidents.
DOJ Chief FOIA Officer Perrelli should know these “how the government works” facts because the “Jackson nonacquiescence policy” policy affects millions of 2010 Ford nationwide class members residing in all 50 States. AG Holder has a duty to cure the 1994-2010 Ford due process violations because the Jackson regulation, 20 C.F.R. § 416.1130 (b), is not cited in the 2010 SSI Notices upon which Ford class members’ federal SSI benefits have been reduced by one-third. AG Holder should know the 1982-2009 “OMB Jackson” facts because he has a due diligence duty to inform President Obama where the 1982-2010 “Jackson nonacquiescence policy” SSI funds were distributed that Congress had appropriated for the aged, blind, and disabled SSI recipients, but were not paid to millions of Ford class members. §§ C, K, Z.
As to the “Jackson nonacquiesence policy” and the other 2010 DOJ nonacquiescence cases, AG Holder’s April 7, 2010 Open Government Plan is consistent with the 2002 enactment of 28 U.S.C. § 530D that requires that the AG inform the Congress of nonacquiescence policy cases. However, because of OMB’s use of the “Glomar Response” defense in withholding the 1982-2008 “OMB Jackson” documents, AG Holder has his own due diligence duty to read the OLC classified nonacquiescence policy cases that have not been reported to the Congress because of prior AG’s application the national security “exception” standard established by President Bush in his November 2, 2002 Presidential Signing Statement. If AG Holder learns the “Jackson nonacquiescence policy” document is classified, then President Obama should make the decision whether to declassify this “nonacquiescence” policy document by balancing 2010 national security needs with Congress learning where OMB Director Orszag distributed “Jackson nonacquiescence policy” funds not paid to Ford nationwide class members. §§ D, J.
Hence, the importance of AUSA Mahoney providing a “heads up” memo for U.S. Attorney Lynch that is consistent with Open Government Plan and answers the how-could-it- have-happened Jackson question. Pursuant to the AG Holder’s transparency and accountability Open Government Plan, he should post the “Jackson nonacquiescence policy” document on the DOJ website. However, if AG Holder learns Jackson is a classified “nonacquiescence” case, then he should apply his own Open Government Plan standards to that DOJ decision. §§ S, T, U.
16 B. Notice to EDNY U.S. Attorney Lynch of her K & A supervising attorney duty to remedy the uncured due process rights violations of 1994-2010 Ford v Shalala class members
The appellant placed EDNY Attorney Lynch on Notice of her K & A Radiologic Technology Services, Inc. v. Commissioner of the Department of Health and of the State of New York, 189 F. 3d 273 (2d Cir. 1999), supervising attorney duty to remedy violations of the due process rights of 1994-2010 Ford v Shalala class members. 2010 U.S. Attorney Lynch has a K & A duty to read the 1999-2001 Ford case file notes and e-mails of AUSA Mahoney to learn whether AUSA Mahoney had provided false information to 1999-2001 EDNY U.S. Attorney Lynch, her supervising attorney, upon which U.S. Attorney Lynch based the 2000 decision to file the Ford Notice of Appeal. In October, 2000, then-DAG Holder made his honorable and courageous decision not to perfect EDNY U.S. Attorney Lynch’s Ford appeal. On August 19, 1999, in its K & A decision, the Second Circuit explained the “personal involvement” requirement of NYS Department of Health (DOH) supervisory employees of the violations of the statutory rights of HHS dually eligible Medicaid and Medicare beneficiaries: Personal involvement of the defendant in the alleged deprivation is a prerequisite to recovery of damages under § 1983. See, e.g., Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). The requisite personal involvement exists if, for example, the defendant (1) created or permitted the continuance of a policy that caused the alleged deprivation, (2) failed to remedy the alleged deprivation after learning of it, or (3) was grossly negligent in managing subordinates who caused the alleged deprivation. See, e.g., Spencer v. Doe, 139 F.2e 107, 112 (2d. Cir. 1998). Id. 12. Emphasis Added.
The Second Circuit established a 1999 “willful blindness” evidentiary standard:
In response, plaintiffs have not attempted to rebut this evidence; nor have they argued that defendant should be deemed to have had constructive knowledge of the policy, even before the Stipulation was entered into, by virtue of the filing of the complaint. Instead, plaintiffs maintain that defendant should not be permitted to avoid personal liability “by burying his head in the sand” and remaining ignorant of his department’s policies. However, plaintiffs have presented no evidence of such willful blindness in this case, and, in light of the vast and complex nature of the Medicaid regime, we see no reason to assume that defendant’s pre-Stipulation ignorance of the particular policy at issue resulted from willful blindness. Id. 13. Emphasis added.
The purpose of this White Paper is to explain to AUSA Mahoney, the 1998-2010 DOJ lead counsel in Ford, how the appellant’s de novo 2010 FOIA requests seek a mosaic of documents that reveal how the 1994-2010 DOJ, HHS, SSA, and OMB agencies have “worked” in concert to deny SSI funds appropriated for the 1994-2010 Ford class members whose due process rights violations continue to be violated in 2010. The appellant is seeking documents to prove that AUSA Mahoney’s command and control ” officers have intentionally had their “heads in the sand” in order not to cure the Ford due process violations because they knew this would end the diversion of unaudited SS1 funds used for national security purposes. §§ H, R.
17 This is a timely 2010 White Paper because the appellant is seeking the release of DOJ, FBI, OMB, HHS and SSA documents to prove to AG Holder the existence of DOJ, FBI, OMB, HHS and SSA stovepipes that honeycomb these agencies. These stovepipes led to the daisy-chain of shadow government attorney-patriots who implemented the extreme Unitary Executive theory. They lied-by-omission to Presidents Reagan, Bush, Clinton, Bush, and Obama to provide them with a plausibility defense to the violation of the Social Security Act by the implementation of the 1982 “Jackson nonacquiescence policy” of HHS General Counsel del Real, a covered agent. They believed this was necessary to generate the off-OMB Budget unaudited HHS-SSA funds to pay for the “black operations” that could not be funded with 1982-2010 classified OMB Budget funds because of the violations of federal laws. §§ K, Y, Z.
The July 27, 2010 FOIA requested NARA, CIA, DOD and DNI documents are connect-the-dots documents to the DOJ, FBI, OMB, HHS and SSA documents. AG Holder will learn from this “mosaic of documents” whether Robert’s almost incredible allegation is true that 1982-2010 “Jackson nonacquiescence policy” funds have been illegally diverted to pay for DIA- CIA-FBI “black operations” that included the “black operation” at IMC and the construction and maintenance of the “do not exist” 1984-2010 NSA TSP and PSP data banks not funded with classified OMB Budget funds. AG Holder will learn whether AUSA Mahoney and her 1994- 2010 Ford v Shalala supervising attorneys have implemented a “conscious avoidance” of facts strategy based on their nondisclosure agreements not to reveal that HHS General Counsel del Real was a covered agent when he rendered his “Jackson nonacquiescence policy” decisions to pay for off-OMB Budget “black operations” necessary to protect the national security. § KK.
U.S. Attorney Lynch will be able to determine within one hour whether Robert’s almost incredible allegations are true, by applying the K & A supervisory attorney standard to the FOIA requested DOJ “28 U.S.C. §530 D nonacquiescence policy” documents that establish the DOJ 1982 Jackson, 1986 Barrett, 1990 Ruppert, 2001 Christensen, and 2007 Ford nonacquiescence policies. If Acting AAG of the OLC Barron informs U.S. Attorney Lynch that there are no “28 U.S.C. §530 D nonacquiescence policy” documents because these are not DOJ policies, then U.S. Attorney Lynch will have a K & A duty to end the de facto DOJ-SSA nonacquiescence policies applied in the 2010 calculation of the benefits of Ford class members during her 2010 Constitutional watch. “(2) failed to remedy the alleged deprivation after learning of it.” Id. 13.
However, if Acting AAG of the OLC Barron informs U.S. Attorney Lynch that any of these FOIA requested nonacquiescence policy documents are subject to President Bush’s November 2, 2002 Presidential Signing Statement “exception” standard to protect the sources and methods of the intelligence community, then this is evidence that DOJ attorneys implemented the “Barrett nonacquiescence policy” and intentionally withheld material facts from the Article III Judges in the Robert FOIAs and in Ford in order to deceive the Judges. If so, then U.S. Attorney Lynch will have a K & A duty to cure the Judicial deception. §§ D, E, F, G.
Hence the importance of U.S. Attorney Lynch fulfilling her 2010 K & A supervisory duty and reading the Robert FOIA and Ford case file notes and e-mails to determine who made the “Barrett nonacquiescence policy” decisions. Whereas there may not have been evidence of “willful blindness” by 1999-2001 U.S. Attorney Lynch, there will be 2010 “willful blindness” evidence if U.S. Attorney Lynch reads those case file notes and e-mails and takes no action.
18 C. Notice to U.S. Attorney Lynch that AUSA Mahoney knows that the Ford v Shalala due process violations have never been cured and that millions of Ford class members’ due process rights are being violated during the 2010 Constitutional watch of AG Holder
The appellant has placed EDNY U.S. Attorney Lynch on Notice that AUSA Mahoney, the 1998-2010 lead counsel in Ford v. Shalala, 87 F. Supp 2d 163 (E.D.N.Y. 1999), knows that the due process rights of the millions of April 9, 1994 Ford nationwide certified class members continue to be violated in 2010 because the Ford “remedy” Notices do not include citations to the regulations upon which benefits are terminated or reduced. He also placed her on Notice that AUSA Mahoney knows that SSA Commissioner Nominee Astrue’s sworn January 24, 2007 Senate Finance Committee testimony that the nonacquiescence policy had ended prior to his being HHS General Counsel in 1989, remains in July, 2010 as uncured false Senate testimony.
On September 29, 1999, Judge Sifton decided Ford v. Shalala, 87 F. Supp 2d 163 (E.D.N.Y. 1999), and certified an April 9, 1994 nationwide class. Judge Sifton described the plight of SSI recipients who did not know the Kafkaesque reasons why their benefits were denied by citing to Gray Panthers v. Schweiker, 652 F. 2d 146, 168-169 (D.C. Cir. 1980):
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
Judge Sifton’s Order for Secretary Shalala to cure the due process violations of the millions of Ford class members, was clear as to requiring SSI Notices that cite to regulations:
all SSI applicants and recipients in the United States who have not received or will not receive written notices from SSA which include a) an explanation of how the SSI application date and period of retroactive eligibility were determined; and/or b) identification of the specific types and values of resources which render them ineligible for SSI payments; and/or c) a description of the SSI benefit rate, including an explanation of the living arrangement classification; and/or d) SSI budget computations, showing the SSI payment rate, the amounts and types of gross income and/or resources, the deductions and disregards from gross income and/or resources, and the income and benefit months; and/or e) citation to specific laws and/or regulations upon which the SSI determination is based; and/or regulations upon which the SSI determinations is based; and/or f) the right to review and obtain free copies of SSA records on the SSI claimant, as well as specific policy materials, including legal authorities, used to support the SSI determination. Id. Emphasis Added.
EDNY U.S. Attorney Lynch filed the Ford Notice of Appeal. In 2000, AUSA Mahoney filed a series of applications for Second Circuit extensions of time to perfect the Ford appeal.
19 The appellant has placed 2010 EDNY U.S. Attorney Lynch on Notice of her due diligence duty to read the 2000 Ford v Shalala case file notes and e-mails that reveal the debate among AG Reno’s chain of command attorneys whether to perfect the Ford appeal. These 2000 Ford case file notes and e-mails reveal why then-DAG Holder made his honorable decision not to perfect the Ford appeal given the April 9, 1994 Ford nationwide class certification date. Because the 2000 Ford case file notes and e-mails were generated when 2010 U.S. Attorney Lynch was 2000 U.S. Attorney Lynch, this raises the issue of whether U.S. Attorney Lynch has a conflict of interest that should be reviewed by Acting AAG of the OPR Brown because the 2010 Ford “remedy” Notices have the same information as the 2000 SSI Notices. §§ E, G, H, R.
2010 U.S. Attorney Lynch will learn whether 1999-2001 AAG of the Civil Division David Ogden, who was the successor of 1993-1999 AAG of the Civil Division Frank Hunger, knew the fiscal consequences of DAG Holder’s 2000 decision if all April 9, 1994 nationwide Ford class members successfully appealed the reduction of benefits caused by application of the Jackson regulation, 20 C.F.R. 416.1130 (b). Upon information and belief, AAG of the Civil Division Ogden, who had been the 1994-1995 DOD Deputy General Counsel, knew the off- OMB Budget funding source for the construction and maintenance of the 1984-2000 “do not exist” NSA TSP data banks were “Jackson nonacquiescence policy” funds. Upon information and belief, U.S. Attorney Lynch will learn that during the Ford v Shalala litigation 1995-1997 DOJ Associate Deputy AG Ogden, 1997-1998 AG Reno Counselor Ogden, and 1998-1999 AG Reno Chief of Staff Ogden did not inform AG Reno of the existence of the “do not exist” 1984- 2000 NSA TSP data banks that were funded with off-OMB Budget HHS-SSA “Jackson nonacquiescence policy” funds. This was to provide AG Reno with a plausible deniability defense to the ongoing violations of the Social Security Act, the FISA, the PCA and the President’s National Security Act U.S.C. § 413 (a), which were all impeachable offenses. § K.
2010 U.S. Attorney Lynch will also learn the 2000 Ford litigation position of 1999-2001 DAAG Thomas Perrelli who was the supervising attorney for the Federal Programs Branch of the Civil Division. Upon information and belief, U.S. Attorney Lynch will learn whether AG Reno’s 1997-1999 Counsel Perrelli knew that the “do not exist” 1984-2000 NSA TSP data banks were funded with off-OMB Budget unaudited HHS-SSA “Jackson nonacquiescence policy” funds during the 1994-2000 Ford litigation, and did not inform AG Reno in order to provide AG Reno with a “plausible deniability” defense to the serial violations of the Social Security Act, the FISA, the PCA and National Security Act. This is a key 1997-2001 mens rea issue because 2010 Associate AG Perrelli has his own K & A supervising attorney duty. § B.
2010 U.S. Attorney Lynch will also learn whether 1994-1997 DAG Jamie Gorelick, DAG Holder’s predecessor, knew of the “do not exist” NSA TSP data banks. She had been the 1993-1994 DOD General Counsel who succeeded 1992-1993 DOD General Counsel David Addington. This is a critical time line fact because of DAG Gorelick’s June, 1995 decision to establish the “wall” that insulated the FBI and DOJ law enforcement officers from violations of the PCA limitations prohibiting military officers’ participation in domestic law enforcement proceedings by the illegal use of information secured from the “do not exist” NSA TSP data banks. That 1995 “wall” was consistent with AAG of the OLC Dellinger’s April 5, 1994 OLC Use of Military Personnel for Monitoring Electronic Surveillance and February 14, 1995 Standards for Searches Under Foreign Intelligence Surveillance Act opinions. §§ M, CC, DD.
20 The appellant has placed U.S. Attorney Lynch on Notice of SSA Commissioner Apfel’s May 22, 2001 Ford memo AM 01080 which explains how the SSA Commissioner was to begin the process of remedying the Ford v Shalala nationwide class due process violations:
How We Will Implement the Court’s Decision
SSA will follow its existing notice clearance process to ensure that the revised notices are readable and useful to the intended audience and comply with Agency policy and statutory and Executive order requirements for clear and readable notices written in plain language. This process will be carried out in phases to allow SSA to conduct focus group testing with SSI recipients to assess the overall understanding of the proposed changes. Although it is expected that the implementation of the court’s order will take several years, changes to automated notices will be made at the completion of each phase.
SSA has already redesigned its website and added notice language to the automated referral paragraph informing claimants how to access SSI information such as legal citations. As additional phases are completed, we will let you know. Id. 1-2. Emphasis Added. http://www.snowflake5391.net/ford.pdf.
The appellant has placed U.S. Attorney Lynch on Notice that the 2007 mens rea of AAG of the Civil Division Keisler, as revealed in the Ford case file notes and e-mails, is a 2010 “smoking gun” fact that AG Holder should know when he considers the Robert VIII v DOJ, HHS, and SSA offer of a quiet settlement. AAG of the Civil Division Keisler’s Ford case file notes and e-mails reveal whether he knew that on January 24, 2007 SSA Commissioner Nominee Astrue had lied to the Senate Finance Committee that the nonacquiescence policy had ended prior to his becoming the HHS General Counsel in 1989. He knew this was a lie because he knew SSA Commissioner Astrue “rigged” the 2007 SSA computer to continue to apply the 1982 “Jackson nonacquiescence policy” of HHS General Counsel del Real to reduce by one-third the federal benefit amount paid to 2007 Ford class members not residing in the Seventh Circuit. § B.
The appellant placed U.S. Attorney Lynch on Notice that the Ford case file notes and e- mails reveal details of the 2001-2007 process that led AAG of the Civil Division Keisler to approve SSA Commissioner Astrue’s 2007 Ford remedy plan. This is an important fact because the NARA “Peter Keisler Collection” documents reveal whether 1986 Associate WH Counsel Keisler knew that IMC Chief of Staff Juan del Real was diverting unaudited “Jackson nonacquiescence policy” funds to pay for medical supplies and treatment of the Contras in violation of the Boland Amendment, National Security Act, and Social Security Act. §§ Y, AA.
AAG of the Civil Division Keisler’s 2007 Ford case file notes and e-mails are also important because in 1988 he was President Reagan’s WH Counsel Culvahouse’s Associate WH Counsel along with Associate WH Counsel Astrue. They both knew the July 25, 1985 House Judiciary Subcommittee testimony of DAAG Kuhl had been false because the “Jackson nonacquiescence policy” continued in 1988 and remained false uncured testimony in 2007. § F.
21 Hence, the importance of U.S. Attorney Lynch reading the “FBI Abshire” and 1982- 2010 “OMB Jackson” documents along with AAG of the Civil Division Keisler’s 2007 Ford case file notes and e-mails. These connect-the-dots documents prove whether Assistant WH Counsel Keisler knew in December, 1986 that FBI Director Judge Webster’s December 1986 “task force of departmental general counselors” had lied-by-omission to President Reagan regarding the off-OMB Budget source of the Contras’ medical treatment and supplies at IMC that was administered by IMC President Recarey’s Chief of Staff del Real. AG Holder should know whether 2007 AAG of the Civil Division Keisler knew HHS General Counsel del Real was a covered agent when he made the 1982 “Jackson nonacquiescence policy” decision. §§ Y, AA.
When AG Holder considers the appellant’s Robert VIII v DOJ, HHS, and SSA offer of a quiet settlement, he should also know whether in 1986 Assistant WH Counsel Keisler, as an attorney-patriot, lied-by-omission to President Reagan in order that President Reagan had a plausible deniability defense to the 1986 serial violations of the Boland Amendment, the National Security Act, the FISA, the PCA and the Social Security Act which he knew were all impeachable offenses. AG Holder can learn the 1986 mens rea of 2007 AAG of the Civil Division Keisler by asking former-Acting AG Keisler to answer the Jackson question and to solve the Gordon riddle whether Associate WH Counsel Astrue lied to the June 22, 1989 Senate Finance Committee testimony that the nonacquiescence policy ended, or SG Days and AAG of the Civil Division Hunger provided false information to the Supreme Court in Gordon defending the 1984-1996 HHS-SSA nonacquiescence policy. Former-Acting AG Keisler’s answers will assist AG Holder in deciding whether he should accept the appellant’s Robert VIII, HHS, and SSA offer of a quiet settlement as applied to 1994-2008 Ford class members. §§ T, U.
The appellant has placed 2010 U.S. Attorney Lynch on Notice of SSA Commissioner Astrue’s April 7, 2010 FOIA SSA Open Government Plan in which SSA Commissioner Astrue explains the procedures he is taking to ensure transparency and accountability at SSA:
We are excited about the opportunity to improve service to the American people by sharing data and information and having the public --- either individually, or as part of academic, non-profit, or other government entities-help shape our policies and define our priorities. In addition, we look forward to using innovative data-sharing, coloration, and participation technologies to support our mission. Id. 2. Emphasis Added. http://www.socialsecurity.gov/open/10-380%20OGP-2%20copy.pdf.
Therefore, U.S. Attorney Lynch has a K & A duty to contact SSA Commissioner Astrue, her client, and inform him that he is violating his own SSA Open Government Plan transparency duty by not citing SSI regulations in his Ford “remedy” notices. U.S. Attorney Lynch also has a K & A duty to secure the SSA data-share information as to the annual amount of “Jackson nonacquiecence policy” funds not paid to the 1994-2010 Ford class members. Then U.S. Attorney Lynch can provide an accurate settlement memo to AG Holder when he considers the Robert VIII v DOJ, HHS, and SSA offer of a quiet settlement whereby SSA Commissioner Astrue, his client, makes true his January 24, 2007 Senate Finance Committee testimony and remedies 1994-2010 Ford v Shalala due process violations that continue to be visited upon millions of Ford class members during AG Holder’s 2010 Constitutional watch. §§ E, F, Z.
22 D. Notice to AUSA Mahoney that the 2010 Open Government FOIA requests were made to prove to AG Holder that AUSA Mahoney is implementing a “Barrett nonacquiescence policy” by withholding material facts from Judge Garaufis with the result that AG Holder has breached his 28 U.S.C. § 530D duty to report this nonacquiescence case to Congress
The appellant has placed AUSA Mahoney on Notice that the 2010 Open Government FOIA requests are made to prove to AG Holder that EDNY AUSA Mahoney has implemented a Barrett v. United States, 798 F. 2d 565, 573 (2d Cir. 1986), and withheld material facts from Judge Garaufis. These documents will prove whether AG Holder had, without his knowledge, breached his 2009 28 U.S.C. § 530D duty to report this nonacquiescence case to Congress.
On July 31, 1986, Barrettin its decision the Second Circuit rejected AG Meese’s argument that government attorneys could withhold material facts from Judges if the USG determined that this litigation decision was necessary to protect national security secrets:
“Finally, acceptance of the view urged by the federal appellants would result in a blanket grant of absolute immunity to government lawyers acting to prevent exposure of the government in liability.” Barrett v. United States. Id. 573 Emphasis Added.
The Second Circuit rejected the use of a qualified immunity defense of withholding material facts from Judges re an experimental secret drug program. The Court used a reasonable attorney test as to whether the governments’ attorneys use of their good faith reason was based on clearly established statutory and constitutional norm:
“The federal-attorney appellants’ entitlement to qualified immunity by reason of their status as government officials depends on whether reasonable persons would have recognized at the time that their conduct violated any clearly established statutory or constitutional norms…” Id. 573-574.
The Second Circuit explained why the federal attorneys liability was based on their actions to thwart the development of evidence for a cause of action:
Unconstitutional deprivation of a cause of action occurs when government officials thwart vindication of a claim by violating their basic principles that enable civil claimants to asset their rights effectively.” Id. 575.
The Second Circuit established a 1986 standard that government attorneys could not suborn perjury or thwart the plaintiff’s discovery to protect the national security. This remains the 2010 standard that applies to AUSA Mahoney and her “command and control” attorney:
Thus, the officials owed a duty to the estate under currently prevailing law not to suborn perjury by any witness in the ongoing litigation and not to induce Marcus to evade disclosure in the estate, in the course of discovery in the Court of Claims case, of the Army Chemical Corps’ complicating in Blauer’s death.” Id. 575. Emphasis Added.
23 In deciding that the federal attorneys did not have a qualified defense, the Court cited to the plaintiff’s argument that the federal attorneys had intimidated the NYS AAG:
The estate further contends that the federal-attorney defendants’ unlawful interference with their rights in the pending New York Court of Claims action is confirmed by Marcus’ deposition testimony in the present case to the effect that they forced him to engage in the foregoing tactics under threat that he might be prosecuted personally for violation of the federal Espionage Act.” Id. 577.
The Court explained that the federal attorneys engaged in active participation in preventing the plaintiff from securing evidence to use against the USG officials and attorneys who participated in violating the estate’s constitutional right to sue federal officials:
Their alleged conduct would amount not only to active participation in a conspiracy to deceive the estate by concealing material evidence in the pending action in the New York Court of Claims for which they could be held liable under currently effective law, but in violation of the estate’s constitutional rights in a potential action against both the Army Chemical Corps and the federal officials participating in the unconsented lethal injection of Blauer, which was currently recognized as a property right entitled to protection. Id. 577. Emphasis Added.
The appellant filed the de novo July 27, 2010 request for the OLC “Barrett nonacquiescence policy” document that reveals the reason why AAG of the OLC Charles Cooper determined that the Second Circuit had “incorrectly” decided Barrett, and why Article II attorneys were not to acquiesce to this Second Circuit decision. Upon information and belief, the OLC “Barrett nonacquiescence policy” document will reveal AAG of the OLC Cooper’s interpretation of the Unitary Executive theory whereby AG Meese had “co-ordinate branch of government” authority equal to the Second Circuit to determine whether USG officials could withhold material facts from Article III Judges to protect the national security. If so, then AG Holder will determine whether to implement this coordinate branch of government theory. If the DOJ 2010 FOIA Officer uses the “Glomar Response” and neither admits nor denies the existence of an OLC “Barrett nonacquiecence policy” document, then this would mean that it is a classified decision. If so, then AG Holder will have determined that 28 U.S.C. § 530 D duty did not apply based on President Bush’s November 2, 2002 Presidential Signing Statement “exception” that is applied to classified nonacquiescence policy cases. 28 U.S.C. § 530D, Report on Enforcement of Laws: Policies Regarding the Constitutionality of Provisions and Non-acquiescence, provides:
(1) In general.— The Attorney General shall submit to the Congress a report of any instance in which the Attorney General or any officer of the Department of Justice— (A) establishes or implements a formal or informal policy to refrain—
24 (ii) within any judicial jurisdiction of or within the United States, from adhering to, enforcing, applying, or complying with, any standing rule of decision (binding upon courts of, or inferior to those of, that jurisdiction) established by a final decision of any court of, or superior to those of, that jurisdiction, respecting the interpretation, construction, or application of the Constitution, any statute, rule, regulation, program, policy, or other law whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer; Emphasis Added
President Bush’s Presidential Signing statement establishes the “exception” if there is a national security risk if the nonacquiescence case is reported to Congress:
Furthermore, section 202(a) requires that the President report to the Congress the issuance of any "unclassified Executive Order or similar memorandum or order" that establishes or implements a policy of intra- circuit non-acquiescence or of refraining from enforcing, applying, or administering a Federal statute, rule, regulation, program, or policy on the ground that it is unconstitutional. Based upon the text and structure of this section, the executive branch shall construe this reporting obligation to cover only unclassified orders in writing that are officially promulgated and are not included in the reports of the Attorney General or other Federal officers to whom this section applies. Emphasis Added. http://www.presidency.ucsb.edu/ws/index.php?pid=73177
Pursuant to the July 27, 2010 FOIA request, Acting AAG of the OLC David Barron will determine whether a “Barrett nonacquiescence policy” document exists and if the document is an unclassified or a classified document. If he determines that Barrett is an unclassified nonacquiescence case, then AGs Ashcroft, Gonzales, Acting Keisler, AG Judge Mukasey, and AG Holder all had a duty to report to Congress that Barrett was a nonacquiescence case. If he determines that Barrett is a classified nonacquiescence case, then he will inform AG Holder. Then AG Holder has a duty to ask Acting AAG of the OLC Barron and AAG of the OLP Schroeder whether pursuant to E.O. 13,256, the classified “Barrett nonacquiescence policy” document should be subject to a § 1.5 declassification decision. §§ H, L, M, N, AAA. However, if Acting AAG of the OLC Barron informs AG Holder that there is no OLC “Barrett nonacquiescence policy” unclassified or classified, then AG Holder will have a due diligence duty to determine who has made the de facto “Barrett nonacquiescence policy” that the Second Circuit “incorrectly” decided Barrett, and that USG attorneys had a duty not to acquiesce to its holding. Then AG Holder will have a duty to comply with 28 U.S.C. § 530D and report this ad hoc “Barrett nonacquiescence policy” to the Congress and to the Judges. § E. Hence, the importance of AUSA Mahoney informing U.S. Attorney Lynch if her Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA command and control officers had ordered her to implement an ad hoc “Barrett nonacquiescence policy” and withhold material facts from Judge Garaufis and Second Circuit. If so, then AG Holder will learn the names of the DOJ attorneys who ordered the implementation of the “Barrett nonacquiescence policy” and decide whether to end the ad hoc DOJ “Barrett nonacquiescence policy” in 2010. §§ E, G, H, AAA.
25 E. Notice to AUSA Mahoney of her April 1, 2009 NYS Professional Model Rules Rule 3.3 duty to cure misrepresentations of fact and law made to tribunals
As of April 1, 2009, EDNY AUSA Mahoney has had a New York State Professional Rules Rule 3.3 duty to cure misrepresentations of fact and law made to tribunals including the Second Circuit. She should be informing 2010 U.S. Attorney Lynch of her knowledge of the misrepresentations of fact and law that have been made by USG attorneys to Judge Garaufis and Judge Sifton in Robert VII v DOJ, Robert VIII v DOJ, HHS, and SSA, and Ford v Shalala.
Rule 3.3 Conduct Before a Tribunal provides:
A lawyer shall not
a) knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement or material fact of law previously made to the tribunal by the lawyer;
b) failure to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
c) offer or use evidence to be false. 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. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. Emphasis added.
Prior to April 1, 2009, there may have been some degree of an ethical ambiguity as to whether a government attorney had an affirmative duty to inform a tribunal that his/her client or another government attorney had made a false representation to the Court because this would affect the attorney-client relationship. However, after April 1, 2009, the ethical duty of AUSA Mahoney to cure prior misrepresentations of fact and law made by her clients or government attorneys is now clear. Therefore, Rule 3.3 is a factor in accepting the quiet settlement offer.
If AUSA Mahoney believes that her duty to protect national security secrets, including past and present domestic DIA-CIA-FBI sources and methods, trumps her Rule 3.3 duty to cure misrepresentations of fact and laws, then she should so inform U.S. Attorney Lynch. Because U.S. Attorney Lynch’s supervising attorney is EOUSA Director H. Marshall Jarrett, the 1998- 2009 Office of Professional Responsibility (OPR) Director, U.S. Attorney Lynch can inquire of EOUSA Director Jarrett and 2010 Acting OPR Director Mary Patrice Brown whether AUSA Mahoney’s good faith protection of the past and present domestic DIA-CIA sources and methods, trumps the NYS Rule 3.3 duty to cure misrepresentations of facts and the law. EOUSA Director Jarrett and Acting OPR Director Brown can seek guidance from AAG of the OLP Schroeder in order that AG Holder knows the ethical duties of AUSA Mahoney and EDNY U.S. Attorney Lynch when AG Holder considers the appellant’s 2010 offer of a quiet settlement. § N.
26 U.S. Attorney Lynch was a 2009 Member of the New York State Commission on Public Integrity. Therefore, she knows the April 1, 2009 Rule 3.3 burden placed upon AUSA Mahoney to cure prior misrepresentations of fact and law made to Article III Judges by AUSAs who blindly relied upon the information that they had received from their “command and control” officers that with 20/20 hindsight were misrepresentations of fact and law. §§ L, M, P, S, T, U.
The appellant has placed AUSA Mahoney on Notice of the Pavelic & Le Fore v Marvel Entertainment Group, 110 S. Ct. 456 (1991), FRCP 11 decision as to the significance of her signing pleadings in Robert FOIA actions. Justice Scalia explained that a plain reading of FRCP 11 means that signing a pleading is not a “team effort” but based on individual accountability:
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 case.” Id. 459.
The appellant has placed AUSA Mahoney on Notice that he has requested that U.S. Attorney Lynch read AUSA Mahoney’s FRCP 11 signed pleadings and her case file notes and e-mails in Robert v National Archives, 1 Fed. Appx. 85 (2d Cir. 2001), Robert v U.S. Department of Justice, 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), to determine whether AUSA Mahoney had made misrepresentations fact and law to Judge Wexler, Judge Mishler, Judge Garaufis and the Second Circuit that have never been cured. These are “smoking gun” documents because they reveal not only whether AUSA Mahoney breached her FRCP 11 duty in filing signed pleadings that were not accurate, but also whether AUSA Mahoney has violated NYS Rule 3.3 because she has taken no action to cure the misrepresentations of fact and law made in her FRCP 11 pleadings in the Robert FOIAs. § G.
The appellant has also requested that U.S. Attorney Lynch read AUSA Mahoney’s signed pleadings in Ford v Shalala along with her Ford case file notes and e-mails along with the Ruppert v Bowen, 871 F. 2d 1172 (2d Cir. 1989) and Gordon v. Shalala, 55 F.3d 101 (2d Cir. 1995), cert. den, 517 U.S. 1103 (1996), case file notes and e-mails. Then U.S. Attorney Lynch can determine whether AUSA Mahoney made uncured misrepresentations of fact and law to Judge Sifton in Ford given that SSA Commissioner Astrue, her client, informed the Senate Finance Committee on June 22, 1989 and January 24, 2007 that the nonacquiescence policy had ended prior to his becoming the HHS General Counsel in 1989. This is a 2010 Rule 3.3 issue that impacts on millions of 2010 Ford class members whose benefits are reduced because AUSA Mahoney ratified SSA Commissioner Astrue’s “rigging” of the 2010 SSA computer to apply the 1982 Jackson and the 1990 Ruppert nonacquiescence policies. §§ B, F, P, S, T.
27 AUSA Mahoney’s Ford v Shalala FRCP 11 signed pleadings, case file notes and e-mails have Rule 3.3 significance for 2010 U.S. Attorney Lynch because in 2000 then-DAG Holder made his honorable decision not to perfect 1999-2001 U.S. Attorney Lynch’s 2000 Ford Notice of Appeal. AUSA Mahoney knows that U.S. Attorney Lynch knew in 2000 that the Ford class members due process rights were violated when DAG Holder did not perfect the 2000 appeal. As a result, U.S. Attorney Lynch knows that she has the Rule 3.3 duty to read AUSA Mahoney’s 2001-2007 FRCP 11 signed pleadings, case file notes and e-mail and learn what actions AUSA Mahoney, the 1998-2010 Ford lead counsel, has taken from 2001-2010 to cure the due process violations that continue to be visited upon 2010 Ford class members. §§ B, C.
After reading the DOJ and SSA 2001-2010 Ford case file notes and e-mail, U.S. Attorney Lynch will have her own 2010 Rule 3.3 duty to cure 2001-2007 misrepresentations of fact and law made to Judge Sifton because of SSA Commissioner Astrue’s 2007-2010 failure to cure the due process violations. AUSA Mahoney has a duty to explain to U.S. Attorney Lynch the reason why SSA Commissioner Astrue’s 2010 Ford “remedy” Notices have no changes from the 1999 Notices Judge Sifton described as being Kafkaesque in his September 29, 1999 decision that cited to Gray Panthers v. Schweiker, 652 F. 2d 146, 168-169 (D.C. Cir. 1980):
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
U.S. Attorney Lynch will read the 2007 Ford case file notes and e-mails of AAG of the Civil Division Keisler and know these documents contain evidence that he knew that SSA Commissioner Astrue’s testimony was false. 2010 U.S. Attorney Lynch will appreciate Justice Scalia’s 1991 Pavlick this-is-not-a-team-effort holding when she prepares her Robert VIII v DOJ, HHS, and SSA settlement memo for AG Holder. Hence the importance of AUSA Mahoney providing a heads up memo for U.S. Attorney Lynch that answers the Jackson question that the appellant presented to the Second Circuit in his December 18, 2009 Motion for a Second Circuit CAMP conference to seek a settlement of the Robert VIII v DOJ, HHS, and SSA appeal. If AG Holder rejects the appellant’s offer of a quiet settlement and the appellant files a September 3, 2010 appeal reinstatement, then U.S. Attorney Lynch knows that NYS Rule 3.3 will apply to AUSA Mahoney’s 2011 Robert VIII v DOJ, HHS, and SSA FRCP 11 signed Brief given Justice Scalia’s 1991 Pavlic this-is-not-a-team-effort FRCP 11 holding. §§ F, G.
Therefore, AUSA Mahoney should most carefully re-read her FRCP 11 signed Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA pleadings with the knowledge that U.S. Attorney Lynch will fulfill her 2010 K & A duty and read the Robert VII v DOJ, Robert VIII v DOJ, HHS, and SSA, and Ford v Shalala case files notes and e-mail to determine whether Mahoney filed accurate FRCP 11 signed pleadings. U.S. Attorney Lynch will know whether AUSA Mahoney has a 2010 NYS Rule 3.3 duty to cure her own misrepresentations of fact and law that she made to Judge Sifton in Ford, to Judge Garaufis and the Second Circuit in Robert VII v DOJ, and to Judge Garaufis in Robert VIII v DOJ, HHS, and SSA. §§ H, AAA.
28 F. Notice to AUSA Mahoney that she has a 2010 NYS Judiciary Law § 487 duty not to deceive Judges and parties, including appellant Robert and Ford v Shalala class plaintiffs
The appellant has placed AUSA Mahoney on Notice of her 2010 duty to comply with NYS Judiciary Law § 487 and not deceive Judges or parties. The appellant has placed AUSA Mahoney on Notice that there had been deception of Article III Judges in the 1985-2010 Robert FOIA actions and of Judge Sifton in Ford v Shalala. The appellant placed AUSA Mahoney on Notice that USG attorneys breached NYS Judiciary Law § 487 because they intended to deceive Robert and the Ford class plaintiffs based on their good faith belief this was necessary to protect DIA-CIA-FBI “black operation” funding sources needed to protect the national security.
NYS Judiciary Law § 487 establishes a Misconduct by attorneys penal standard:
An attorney or counselor who:
1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or …
Is guilty of a misdemeanor, and in addition to the punishment prescribed therefore by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action. Emphasis Added.
In defense of AUSA Mahoney, it is the appellant’s belief that AUSA Mahoney has been intimidated by her command and control officers who have ordered her to protect domestic DIA-CIA-FBI sources and methods notwithstanding the NYS Judiciary Law § 487 penal deception of Judges and parties standard. The appellant has placed U.S. Attorney Lynch on Notice that she has a duty to comply with NYS Judiciary Law § 487 and should seek guidance from EOUSA Director Jarrett and Acting OPR Director Brown whether her duty to protect DIA- CIA-FBI sources and methods trumps the NYS Judiciary Law § 487 penal deception standard.
In the appellant’s July 27, 2010 letter to AAG of the Office of Legal Policy Schroeder, he presented the national security issue of whether U. S. Attorney Lynch’s 2010 duty to protect national security secrets, trumps her NYS Judiciary Law § 487 duty not to collude with other USG attorneys to deceive Judges and parties. AAG of the OLP Schroeder was a 1993 Counselor to AG Reno, 1994 Acting AAG of the OLC, and 1995-1997 Deputy Associate AG. He has the DOJ institutional memory to read and apprehend the mens rea significance of the 1994-2007 Ford case file notes when compared to the 1982-1990 Ruppert case file notes, and the 1986-1996 Gordon case file notes and e-mails including the Gordon case file notes of AAG of the Civil Division Hunger, SG Days, and Associate AG Schmidt. §§ N, O, P, S, T, U, V, W, Y, Z, AAA.
Hence, the importance the AUSA Mahoney informing U.S. Attorney Lynch whether her “command and control” officers ordered her to deceive Judge Garaufis and Robert to protect domestic DIA-CIA-FBI sources and methods. If so, then U.S. Attorney Lynch should inform AG Holder of these NYS Judiciary Law § 487 deception facts when AG Holder considers the quiet settlement offer that will affect millions of 2010 Ford v Shalala nationwide class members.
29 Based on U.S. Attorney Lynch’s accurate settlement memo for AG Holder, he can sort out the competing interests of the implementation of the “Barrett nonacquiescence policy” by withholding material facts from Article III Judges to protect national security secrets, and the NYS Judiciary Law § 487 prohibition of attorneys deceiving Judges and parties. This is not a difficult task because the USG attorney-patriots who believe in the Unitary Executive theory proudly documented the Robert FOIA DOJ case file notes and e-mails with evidence of their recorded mens rea. They intended to deceive the Article III Judges, plaintiff Robert, and the Ford class members because they were patriots who believed this deception was necessary to protect the off-Budget unaudited HHS-SSA “Jackson nonacquiescence policy” funding source for the DIA-CIA-FBI “black operations” that were needed to protect the nation from terrorists.
For example, when U.S. Attorney Lynch reads the DOJ Robert v Holz case file notes, she will learn whether EDNY AUSAs knew that HHS General Counsel del Real was a DIA- CIA covered agent in 1984 when he initiated the “Fraud Against the Government” investigation of Robert. She will learn whether in 1985 HHS Chief Regional Counsel Blum and DOJ Chief Begleiter knew that HHS General Counsel del Real was a covered agent when they supervised the “Fraud Against the Government” investigation of Robert for HHS General Counsel del Real and AAG of the Civil Division Willard. She will learn why in 1986 the honorable AUSA Robin Greenwald no longer represented the USG in Robert v. Holz. She will learn why in 1987 the honorable AAG of the Criminal Division William Weld ended the criminal investigation of Robert. She will learn who in January, 1988 ordered AUSA M. Lawrence Noyer (deceased) to implement the “Barrett nonacquiescence policy” and withhold from Judge Wexler at the FOIA trial, the smoking gun fact that HHS General Counsel del Real was a covered agent when he initiated the “Fraud Against the Government” investigation of Robert to eliminate the attorney who opposed his implementation of the “Jackson nonacquiescence policy” that funded “black operations” being conducted without the knowledge of President Reagan. §§ K, Y, Z, AA, AAA.
If 2010 U.S. Attorney Lynch learns from reading the DOJ Robert v Holz FOIA requested documents that USG attorneys intended to deceive Judger Wexler, then she should inform AG Holder of this fact. This is a critical 1986 base line of violations of NYS Judiciary Law § 487 by HHS Chief Regional Counsel Blum and Chief Begleiter, because they also were the supervising attorneys of the 1982-1987 Ruppert litigation that included the key September 4, 1985 Ruppert conference held in Judge Altimari’s Chambers. As revealed in the 1985 Ruppert case file notes, they knew whether USG attorneys intentionally did not inform Judge Altimari that Acting SSA Commissioner Mc Steen, SSA Chief Counsel Gonya, and DAAG Kuhl had testified at the July 25, 1985 House Judiciary Subcommittee that the HHS nonacquiescence policy had ended. § S.
AG Holder’s 2010 determination whether DOJ attorneys breached their NYS Judiciary Law § 487 duty not to deceive Judge Altimari in Ruppert on September 4, 1985, has legal significance for 2010 Ford class members. That finding would trigger the 1986 Bowen v City of NY clandestine policy remedy. AG Holder can also determine whether AUSA Mahoney knew in 2007 that SSA Commissioner Astrue had lied to the January 24, 2007 Senate Finance Committee testimony that the “nonacquiescence” policy had ended prior to his becoming HHS General Counsel in 1989. Then AG Holder can decide whether AUSA Mahoney breached NYS Judiciary Law § 487 by her intended deception of 2007 Ford class plaintiffs, and recommend that HHS Secretary Sebelius and SSA Commissioner Astrue accept the quiet settlement offer. § P.
30 G. Notice to AUSA Mahoney that the 1991 Chambers v Nasco “fraud upon the court” standard applies to USG attorneys who filed false pleadings relied upon by Judges
The appellant has placed AUSA Mahoney on Notice that if NYS Judiciary Law § 487 was violated because USG attorneys intended to deceive Judge Garaufis, then the Chambers v Nasco, 111 S. Ct. 2123 (1991), “fraud upon the court” standard applies whereby the Court can vacate Judgments. If the Robert VIII v DOJ, HHS, and SSA appeal is reinstated, then the appellant will argue that the mosaic of requested documents reveal that USG attorneys committed a fraud upon the court when they implemented the “Barrett nonacquiescence policy” and intentionally withheld material facts from Judge Garaufis. The appellant will cite to the Robert VIII v DOJ, HHS, and SSA case file notes and e-mails as evidence that AG Holder knows whether in AG Gonzales’ 2005 injunction Motion, AG Gonzales intended to deceive Judge Garaufis to protect the funding source of the “do not exist” NSA TSP data banks that DOD Secretary Rumsfeld determined were necessary to protect the national security. §§ K, CC.
In Chambers, a false pleading was filed with the trial judge and relied upon by the trial judge when rendering the Judge’s decision and Judgment. The Supreme Court reviewed the false pleading and explained the inherent authority of a court to protect its own integrity by vacating judgments based on the false representations that were made to the court:
This “historic power of equity to set aside fraudulently begotten judgments,” cite omitted, is necessary to the integrity of the courts for “tampering with the administration of justice in (this)manner …involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public. cites omitted. Moreover, a court has the power to conduct an independent investigation whether it has been the victim of a fraud. Cite omitted. Id. at p. 2132. Emphasis Added.
If AUSA Mahoney informs the appellant that her clients, including AG Holder, have rejected the appellant’s Robert VIII v DOJ, HHS, and SSA offer of a quiet settlement, then on September 3, 2010 the appeal will be reinstated. In his Second Circuit Brief, the appellant will make the Chambers fraud upon the court argument to which AG Holder will respond in his DOJ FRCP 11 signed Brief filed on behalf of appellee SSA Commissioner Astrue, his client.
The appellant will seek a remand in order that Judge Garaufis can “conduct an independent investigation” to determine whether he had been the victim of a fraud upon the court when he granted AG Gonzales’ 2005 Motion for the Robert injunction. Robert will argue that a “judicially independent investigation” is needed because of AUSA Mahoney’s conflict of interest in Robert VIII v DOJ, HHS, and SSA because she was the lead counsel in Ford whose 2003-2007 command and control officer was AAG of the Civil Division Keisler, who knew that the January 24, 2007 Senate Finance Committee of SSA Commissioner Astrue, his 1988 co- Associate WH Counsel, was false testimony. Based on the Second Circuit’s 2010 Dinler v City of New York holding, Judge Garaufis would read in camera the Robert FOIA withheld classified documents to determine whether USG attorneys had the mens rea to deceive Judge Garaufis and the Second Circuit in Robert VII v DOJ and Robert v DOJ, HHS, and SSA. § XX, AAA.
31 After U.S. Attorney Lynch performs her K & A duty and reads the 2005 Robert VIII v DOJ, HHS, and SSA case file notes and e-mails, she will know whether AAG of the Civil Division Keisler implemented the “Barrett nonacquiescence policy” and withheld material facts in AG Gonzales’ 2005 injunction Motion with the intent to deceive Judge Garaufis to protect the sources and methods of the DIA-CIA-FBI and the funding source for the “do not exist” NSA TSP and PSP data banks. Then when U.S. Attorney Lynch reads the 2006 Robert VII v DOJ and SSA case file notes and e-mails, she will know whether AAG of the Civil Division Keisler implemented the “Barrett nonacquiescence policy” and withheld material facts from the Second Circuit in AUSA Mahoney April 3, 2006 Letter Brief. She will know whether this was with the intent to deceive the Second Circuit so that the Court not learn the “FISC Robert” documents revealed that AG Meese’s Robert FISC petition contained the false information that FBI Director Judge Webster had evidence that Robert was a terrorist or an agent of a foreign power. § M.
U.S. Attorney Lynch can consult with Associate Attorney General Baker to learn whether AAG of the Civil Division Keisler had committed a Chambers fraud upon the court in Robert VII v DOJ when he withheld the “Robert FISC” documents that proved that Robert was a FISA 50 U.S.C. §1806 (f) aggrieved person. He can consult with SG Kagan who can read SG Clement’s Robert VII v DOJ case file notes and e-mails to know whether SG Clement did not file a Brief in opposition to the petition for a writ of certiorari because he knew AG Meese’s petition for Robert FISC warrants contained false facts, and he knew AG Meese did not inform the FISC that the DIA-CIA-FBI counterintelligence “plumber” unit had provided HHS General Counsel del Real with facts from the “do not exist” NSA TSP data banks. §§ G, M, N, AAA.
U.S. Attorney Lynch can consult with Deputy Assistant AAG of the Civil Division Hertz who knows that the Robert VIII v DOJ, HHS, and SSA FOIA requested “IMC Investigation Final Report” was a classified document that had been in the custody of his qui tam Civil Division unit. He knows whether the DOJ FOIA Officer committed a Chambers “fraud upon the court” intent to deceive Judge Garaufis when filing the due diligence Declaration that limited the DOJ search for the IMC document to a South Florida U.S. Attorney’s unclassified index. § II.
U.S. Attorney Lynch can consult with Acting AAG of the OLC Barron to determine whether the DOJ FOIA Officer’s due diligence search for the Robert VIII v DOJ, HHS, and SSA FOIA requested “Barrett nonacquiescence policy” and “Christensen nonacquiescence policy” documents included the OLC classified index of “nonacquiescence” decisions compiled pursuant to the 28 U.S.C. 530D national security “exception” established in President Bush’s November 2, 2002 Presidential Signing Statement. He knows whether the DOJ FOIA Officer committed a Chambers fraud upon the court intent to deceive Judge Garaufis when filing the due diligence Declaration explaining the due diligence search for these OLC documents. § D.
On August 18, 2010, 2010, the appellant will place AG Holder’s chain of command attorneys on Notice of these Chambers fraud upon the court allegations and the conflict of interest of AUSA Mahoney. These attorneys know that AG Holder would not commit a fraud upon the court. Each one of these attorneys will fulfill his/her 28 U.S.C. 535(b) duty and report to AG Holder that SSA Commissioner Astrue, their client, lied to the Senate Finance Committee because the “Jackson nonacquiescence policy” continues in August, 2010. Therefore, in August, 2010 AG Holder will know the fraud upon the court issues are quiet settlement factors. § J.
32 H. Application of the July 6, 2005 OPR Analytical Framework to AUSA Mahoney’s implementation of the “Barrett nonacquiescence policy” by withholding material facts from Judge Sifton in Ford v Shalala and from the Second Circuit in the Robert FOIAs
If AUSA Mahoney does not fulfill her Rule 3.3 duty and correct misrepresentations of fact and law made to Judge Garaufis and the Second Circuit, then Robert will file a professional misconduct complaint against AUSA Mahoney with Acting OPR Director Brown based on the July 6, 2005 OPR Analytical Framework standards. The appellant has requested that U.S. Attorney Lynch apply this OPR Analytical Framework when she performs her K & A review and reads for accuracy AUSA Mahoney’s FRCP 11 signed pleadings. U.S. Attorney Lynch will learn whether AUSA Mahoney implemented the “Barrett nonacquiescence policy” and withheld material facts from Judge Sifton in Ford v Shalala and from Judge Garaufis and the Second Circuit in Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA, by comparing AUSA Mahoney’s FRCP 11 signed pleadings with her own case file notes and e-mails. § E.
OPR’s July 6, 2005 Analytical Framework establishes the standards that is to be applied when there is an allegation that a DOJ attorney has committed professional misconduct:
A Department attorney engages in professional misconduct when he or she intentionally violates or acts in reckless disregard of an obligation or standard imposed by law, applicable rule of professional conduct, or Department regulation or policy. The elements essential to a conclusion that an attorney committed misconduct, then, are the attorney (1) violated or disregarded an applicable obligation or standard (2) with the requisite scienter. A violation or disregard of an obligation or standard does not necessarily constitute professional misconduct if, under the circumstances, it is de minis. Id. 1-2. Emphasis Added. http://www.usdoj.gov/opr/framework.pdf.
Associate DAG David Margolis used this July 6, 2005 OPR Analytical Framework when he reversed 2008 OMB Director Jarrett’s recommendation that OLC attorneys had conducted “professional misconduct” when they issued the enhanced interrogation memos and provided inadequate legal advice to President Bush. “But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources.” Isikoff and Klaidman, Justice Official Clears Bush Lawyers in Torture Memo Probe, Newseek. 1-29-10.
In his January 5, 2010 Memorandum for the Attorney General, Associate DAG Margolis explained his 17 year experience with applying the OPR’s standard to OPR complaints that DOJ attorneys committed professional misconduct by providing inadequate legal advice:
In a departure from standard practice and without explanation, OPR in its initial two drafts analyzed the conduct of the attorneys without application of OPR’s own standard analytical framework. See http://www.usdoj.gov/opr/framework.pdf. This departure was not insignificant. I have held my current position within the Department for nearly 17 years. During that time, I have reviewed almost every OPR
33 report of investigation. OPR developed its framework over a decade ago and to the best of my recollection has applied it virtually without excepting since then. Id. 6. Emphasis Added. http://judiciary.house.gov/hearings/pdf/DAGMargolisMemo100105.pdf
The July 6, 2005 OPR Analytical Framework establishes the standards that Acting OPR Director Brown and Associate DAG Margolis would apply to Robert’s putative OPR complaint that AUSA Mahoney committed “professional misconduct” in her Briefs filed with Article III Judges in the Robert FOIAs, and in her attorney-to-client memos sent to the Ford Secretaries and SSA Commissioners from 1998-2010. The 2001-2010 internal attorney-to-client legal advice of AUSA Mahoney reveal whether AUSA Mahoney breached her NYS Judiciary Law § 487 duty not to deceive Judge Sifton or the Ford plaintiffs as to the Ford “remedy” Notices. § B.
Robert will specifically allege that AUSA Mahoney committed “professional misconduct” when in 2010 she did not advise HHS Secretary Sebelius and SSA Commissioner Astrue, her clients, that they have a duty to acquiesce to the 1982 Jackson, 1986 Barrett, 1990 Ruppert, 1999 Ford, and 2001 Christensen holdings based on SSA Commissioner Nominee Astrue’s sworn January 24, 2007 Senate Finance Committee testimony that the nonacquiescence policy had ended prior to his becoming the HHS General Counsel in 1989. “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.” Emphasis Added. http://finance.senate.gov/hearings/testimony/2007test/012407matest.pdf. §§ C, D.
Appellant Robert will request that Acting OPR Director Brown apply the OPR Analytical Framework “ascertain the obligation or standards” guideline to AUSA Mahoney:
In a given situation, then, a Department’s attorney’s conduct may be government by a number of obligations and standards from a variety of sources. It is the attorney’s professional duty to attempt in good faith to ascertain the obligations and standards imposed on him or her and to comply with them. An attorney who fails to so and who violates or disregards an obligation or standard, with scienter, commits professional misconduct. Id. 2. Emphasis Added.
Appellant Robert will request that Acting OPR Director Brown apply the OPR Analytical Framework “intent” standard to AUSA Mahoney’s case files notes and e-mails:
An attorney intentionally violates an obligation or standard when he or she (1) engages in conduct with the purpose of obtaining a result that the obligation or standard unambiguously prohibits, or (2) engages in conduct knowing its natural or probable consequence and that consequence is a result that the obligation or standard unambiguously prohibits. Intentional professional misconduct, then, includes both conduct that is purposeful conduct that is knowing. The attorney’s conduct includes the actions the attorney takes and fails to take. Id. 2. Emphasis added.
34 Appellant Robert will request that Acting OPR Director Brown apply the OPR Analytical Framework “reckless disregard” standard by reading AUSA Mahoney’s case files notes and e-mails that followed Robert’s legion of Notices to her that she was implementing the “Barrett nonacquiescence policy” by withholding material facts from Judge Garaufis:
An attorney acts in reckless disregard of an obligation or standard when (1) the attorney knows, or should know based on his or her experience and the unambiguous nature of the obligation or standard, of an obligation or standard, (2) the attorneys knows, or should now based on his or her experience and the unambiguous applicability of the obligation or standard, that the attorney’s conduct involves a substantial likelihood that the he or she will violate or cause a violation of the obligation or standard, and (3) the attorney nonetheless engages in the conduct, which is objectively unreasonable under all the circumstances. Thus, and attorney’s disregard of an obligation or standard is reckless when, considering the nature and purpose of the attorney’s conduct and the and the facts known to the attorney, it represents a gross deviation from the standard of conduct that an objectively reasonable attorney would observe in the same situation. Id. 3. Emphasis Added.
Appellant Robert will request that Acting OPR Director Brown apply the OPR Analytical Framework “poor judgment” standard if the OPR conclusion is that AUSA Mahoney did not breach of the “professional misconduct” and “reckless disregard” standards:
The Department has a justifiable expectation that its attorneys will use good judgment in carrying out their professional duties and in exercising the broad discretion the Department has provided them to do so. An attorney exercises poor judgment when, faced with alternative course of action, he or she chooses a course of action that is marked contrast to the action that the Department may reasonably expect an attorney exercising good judgment to take. Poor judgment differs from professional misconduct in that an attorney may act inappropriately and thus exhibit poor judgment even though he or she may not have violated or acted in a reckless disregard of a clear obligation or standard at issue is not sufficiently clear and unambiguous to support a professional misconduct finding. For example, an attorney exercises poor judgment when, confronted with an obviously problematic set of circumstances, the attorney fails to seek advice or guidance from his or her supervisors even though an attorney exercising good judgment would do so. Id. 3-4. Emphasis Added.
The appellant will assert that AUSA Mahoney breached the “poor judgment” standard because she knows the Ford remedy “Notices” do not cite to the regulations upon which Ford class members 2010 federal benefits are reduced by one-third by application of the Jackson regulation, 20 C.F.R. §416.1130 (b). Acting OPR Director Brown can read the Jackson regulation and know the “problematic set of circumstances” that cried out for advice or guidance.
35 Acting OPR Director Brown and U.S. Attorney Lynch can also both determine whether AUSA Mahoney engaged in “professional misconduct” if she did not present the Robert VIII v DOJ, HHS, and SSA offer of a quiet settlement to all three of her clients: AG Holder, HHS Secretary Sebelius, and SSA Commissioner Astrue. Her case file notes and e-mails reveal whether she presented the appellant’s offer of a quiet settlement after the Second Circuit CAMP conference and the agreement that the appeal would be reinstated if there was no settlement.
AUSA Mahoney knows that an attorney has a duty to present an offer of a settlement to her/his clients with a balanced memo assessing the consequences of a rejection of the settlement offer. Hence, the link between her representation of SSA Commissioner Astrue in Ford and in Robert VIII v DOJ, HHS, and SSA. AUSA Mahoney knew after the January, 2010 Robert VIII v DOJ, HHS, and SSA Second Circuit CAMP conference of the 2010 “collateral damage” that continued to be visited upon millions of 1994-2010 Ford class members because SSA Commissioner Astrue programmed the 2010 SSA computer to apply the Jackson regulation, contrary to his own January 24, 2007 Senate Finance Committee testimony that the “nonacquiescence” policy had ended. She also knew that OMB FOIA Officer had withheld the 1982-2008 “OMB Jackson” documents based on the “Glomar Response” defense. She knew that those documents revealed where the 1994-2010 “Jackson nonacquiesence policy” funds had been diverted that were not paid to the 1994-2010 Ford v Shalala class members. She had a professional duty to present these facts to her clients when they considered the offer of a quiet settlement that would end the Ford due process violations and the Robert FOIA litigation. § B.
Robert will argue that AUSA Mahoney’s decision to withhold material facts from her clients, AG Holder, HHS Secretary Sebelius, and SSA Commissioner Astrue, when presenting the appellant’s offer of a quiet settlement, was at a minimum “poor judgment” based on the standard that Associate DAG Margolis applied to the OLC attorneys who did not advise President Bush how the Geneva convention and the torture statute applied to the enhanced interrogation methods. When U.S. Attorney Lynch performs her K & A duty and learns the content of the 1982-2008 and 2009 “OMB Jackson” documents, she can determine for herself whether AUSA Mahoney has committed “professional misconduct” or “poor judgment” in not informing AG Holder, her client, that the “OMB Jackson” documents reveal where the 1982- 2010 “Jackson nonacquiescence policy” funds not paid to SSI recipients have been diverted. U.S. Attorney Lynch will also know that she would be committing “professional misconduct” if she did not provide AG Holder with an answer to the Jackson question that Robert posited in his December 18, 2009 Motion seeking the Second Circuit CAMP pre-argument conference. § Z.
Therefore, out of courtesy and respect for herself, AUSA Mahoney should re-read her command and control officers’ litigation orders that AUSA Mahoney implement the “Barrett nonacquiescence policy” and withhold material facts from Judge Sifton in Ford v Shalala and from Judge Garaufis and the Second Circuit in Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA. Then her command and control officers can consult with Associate DAG Margolis and determine whether the “professional misconduct” or the “poor judgment” standard applies when the DOJ case file notes and e-mails reveal that AUSA Mahoney’s “command and control” officers implemented the Unitary Executive theory by ordering AUSA Mahoney to withhold material facts from Judge Sifton, Judge Garaufis, and the Second Circuit to protect the “continued classification” of sources and methods to protect the national security. §§ K, TT.
36 I. Notice to U.S. Attorney Lynch that a 1982-2010 EDNY “stovepipe” exists whereby classified information has bypassed the EDNY U.S. Attorneys to provide them with a “plausible deniability” defense to the 1982-2010 serial violation of federal laws
The appellant has served this White Paper on President Obama’s 2010 EDNY U.S. Attorney Lynch to prove to her the existence of 1982-2010 EDNY “stovepipe” whereby the command and control officers of the EDNY AUSAs assigned to the 1985-2010 Robert FOIA actions, 1982-1990 Ruppert v Bowen, 1986-1996 Gordon v Shalala, and 1994-2010 Ford v. Shalala, have not been the 1982-2010 EDNY U.S. Attorneys. When U.S. Attorney Lynch reads the case file notes and e-mails in those cases, she will learn whether a 1982-2010 EDNY stovepipe had bypassed the EDNY U.S. Attorneys, including 1991-2001 U.S. Attorney Lynch, to provide the U.S. Attorneys with a “plausible deniability” defense to the fact that the command and control attorneys of EDNY AUSAs knew that there were serial violations of federal laws that included the Social Security Act, the National Security Act, the Posse Comitatus Act of 1878 (PCA) and the Foreign Intelligence Surveillance Act (FISA).
U.S. Attorney Lynch will learn whether in 1984 AAG of the Civil Division Willard established “stovepipes” in the 94 Offices of the U.S. Attorneys to limit the risk of exposure of classified information by compartmentalizing access to the classified documents. Since few of the U.S. Attorneys had clearance to know Top Secret information, the DOJ stovepipes were designed to bypass the 94 U.S. Attorneys. These stovepipes enabled a 1982-2010 daisy-chain of shadow government attorney-patriots to implement their Unitary Executive theory and determine that the President did not have to comply with unconstitutional laws that encroached upon the President’s unlimited Article II authority to protect the nation from terrorists. §§ M, L.
U.S. Attorney Lynch’s review of the 1985-2010 Robert FOIA case file notes and e-mails will reveal whether the command and control officers of the EDNY AUSAs assigned to those FOIA cases were not EDNY U.S. Attorneys Raymond Dearie (1982-1986), Reena Raggi (1986), Andrew Maloney (1986-1992), Mary Jo White (1992-1993), Zachary Carter (1993-1999), Loretta Lynch (1999-2001), Alan Vinegrad (2001-2002), Roslynn Mauskopf (2002-2007), and (Acting) Campbell (2007-2010). Then when U.S. Attorney Lynch reads the 1982-1990 Ruppert v Bowen, 1986-1996 Gordon v Shalala, and 1994-2010 Ford v. Shalala, case file notes and e- mails, she will know whether Robert’s almost incredible allegation is true: a 1982-2010 daisy- chain of shadow government attorney-patriots have made 1982-2010 classified nonacquiescence decisions to “rig” the 1982-2010 HHS-SSA computer to apply the 1982 “Jackson nonacquiecence policy” of HHS General Counsel del Real, a DIA-CIA-FBI covered agent, to deny benefits for millions of SSI recipients, which were diverted to pay for off-OMB Budget “black operations” without the knowledge of the Presidents Reagan, Bush, Clinton, Bush, and Obama, the AG’s 94 U.S. Attorneys, and 535 Members of Congress. §§ C, J, K.
U.S. Attorney Lynch will know whether a 1999-2001 EDNY stovepipe existed because as AUSA Mahoney’s 1999-2001 supervising attorney in Ford, Robert v National Archives, and Robert v U.S. Department of Justice, she can read the EDNY case file notes and e-mails. She can learn the names of AG Reno’s chain of command attorneys who made the 1999-2001 litigation decisions. These are important facts because the Robert FOIAs sought connect-the-dots documents that track back to the 1985-1988 Robert v Holz documents. § GG.
37 U.S. Attorney Lynch will learn from reading the Robert v Holz, cv-85-4205 (Wexler, J), case file notes whether a 1986 EDNY stovepipe bypassed EDNY U.S. Attorney Dearie. She will learn the names of the command and control officers of Chief Begleiter, AUSA Robin Greenwald, and AUSA M. Lawrence Noyer. She will learn that EDNY U.S. Attorney Dearie did not make the decision to implement the “Barrett nonacquiescence policy” whereby Chief Begleiter, AUSA Greenwald, and AUSA Noyer withheld material facts from Judge Wexler. She will learn that Chief Begleiter’s command and control officer during 1985-1987 “Fraud Against the Government” investigation of Robert was AAG of the Civil Division Willard who sought the incarceration and disbarment of Robert to eliminate his opposition to the 1982 “Jackson nonacquiescence policy” during the 1982-1988 Ruppert litigation, §§ M, S, Y, AAA.
U.S. Attorney Lynch will learn from former-Acting EDNY U.S. Attorney Campbell whether he had received appellant’s Robert VIII v DOJ, HHS, and SSA offer of a quiet settlement that plaintiff Robert had served upon Acting U.S. Attorney Campbell. She will learn whether he received Robert’s Notice to Acting U.S. Attorney Campbell that SSA Commissioner Astrue had lied to the Senate Finance Committee on January 24, 2007 that the nonacquiecence policy had ended prior to his becoming HHS General Counsel in 1989. Then after EDNY U.S. Attorney Lynch performs her K & A duty, she will know the 1982-2010 EDNY stovepipe begins in the EDNY mail room where the command and control officer of the mail room staff orders that mail sent to EDNY U.S. Attorneys re the Robert FOIAs, Ruppert, Gordon, and Ford, bypass the EDNY U.S. Attorneys in order that the EDNY U.S. Attorneys did not learn that the “Barrett nonacquiescence policy” was implemented without their knowledge. §§ B, KK.
If asked, former-Acting EDNY U.S. Attorney Campbell will inform U.S. Attorney Lynch that because of the EDNY stovepipe he did not make any “Barrett nonacquiescence policy” litigation decisions to withhold material facts from Judge Garaufis in Robert VIII v DOJ, HHS, from Judge Seybert in Robert II v CIA and DOJ, or from Judge Sifton in Ford v Shalala. U.S. Attorney Lynch can confirm the fact that Acting EDNY U.S. Attorney Campbell did not make the litigation decisions by reading the 2007-2010 EDNY case file notes and e-mails.
As reported by Sulzberger in For Federal Prosecutor, Low-Key Style in High-Profile Job, NY Times, 3-29-10, Acting EDNY Campbell’s career choice was based on his respect for SDNY U.S. Attorney Giuliani. In 1985 U.S. Attorney Giuliani refused to defend the “nonacquiescence” policy that would be defended by EDNY U.S. Attorneys Dearie (1982-1986), Raggi (1986), Maloney (1986-1992), White (1992-1993), Carter (1993-1999), Lynch (1999- 2001), Vinegrad (2001-2002), Mauskopf (2002-2007), and (Acting) Campbell (2007-2010):
Raised in Iowa, Mr. Campbell said he decided to become a federal prosecutor while watching Rudolph W. Giuliani, then a United States attorney, stand up in a courtroom and declare that he was representing the United States. Id. Emphasis Added.
Because of the EDNY stovepipe of 1982-1986, EDNY Chief Judge Raymond Dearie, did not know that as EDNY U.S. Attorney he defended the 1982 “Jackson nonacquiescence policy” that U.S. Attorney Giuliani had refused to defend. He explained why he respected Acting EDNY U.S. Attorney Campbell, who had had a 1994-2007 EDNY AUSA career:
38 “He earned the respect of the court. It doesn’t come with the title, but he’s earned it,” said Chief Judge Raymond J. Dearie, himself a former United States attorney. “He projects himself as a solid lawyer and a decent person. What more do you want from a U.S. attorney?” Id. Emphasis Added.
Needless to say, U.S. Attorney Dearie and all of the EDNY U.S. Attorneys were “solid lawyers and decent persons” no different from SDNY U.S. Attorney Giuliani. None of the 1982- 2010 EDNY U.S. Attorneys would intentionally commit a fraud upon the court by withholding facts from Article III Judges that they knew were critical facts for the Article III Judges to know when rendering decisions. Hence, the importance of 1999-2001 EDNY U.S. Attorney Lynch learning how the 1984-2010 EDNY stovepipe was implemented to defend the 1982 “Jackson nonacquiescence policy” as applied to the millions of aged, blind, and disabled Ford class members who had their federal benefits reduced by one third because their U.S. Attorney was not SDNY U.S. Attorney Giuliani. Upon information and belief, she will learn that AG Meese took no action against U.S. Attorney Giuliani because he had been the 1981-1983 Associate AG and knew HHS General Counsel del Real had illegally diverted nonacquiescence funds. § M.
Associate AG Giuliani from 1981-1983 was the third ranking DOJ attorney and the chain of command supervising attorney of AAG of the Civil Division Willard. In 1983 Associate AG Giuliani honorably resigned to become the SDNY U.S. Attorney. His “chain of command” supervising attorney was AAG of the Civil Division Willard. Upon information and belief, SDNY U.S. Attorney Giuliani defied AAG of the Civil Division Willard because he knew that AAG of the Civil Division Willard knew that HHS General Counsel del Real was a DIA-CIA-FBI covered agent who was diverting off-OMB Budget “Jackson nonacquiescence policy”funds to pay for domestic “black operations” that were not funded with classified OMB Budget funds. This included funding CIA Director Casey’s off-the-shelf medical delivery system established at IMC to provide medical treatment for “black operation” wounded soldiers. U.S. Attorney Giuliani defied AG Meese without consequences because he knew that IMC was illegally funded with unaudited HHS funds in violation of the Boland Amendment. However, he could not reveal this fact to Congress because of his nondisclosure agreement. §§ L, M, N.
U.S. Attorney Lynch will learn from reading the Robert v Holz case file notes whether AAG of the Civil Division Willard had placed U.S. Attorney Dearie, Chief Begleiter, AUSA Greenwald, and AUSA Noyer on Notice that in the Robert v Holz FOIA, the The Protection of identities of certain United States undercover intelligence officers, agents, informants, and sources, 50 U.S.C. § 421, applied to HHS General Counsel del Real, as a covered agent:
(b) Disclosure of information by persons who learn identity of covert agents as result of having access to classified information Whoever, as a result of having authorized access to classified information, learns the identify of a covert agent and intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than five years, or both. Emphasis Added.
39 Upon information and belief, U.S. Attorney Lynch will learn that AAG of the Civil Division Willard placed EDNY U.S. Attorney Dearie and the AUSAs on Notice that the USG was taking affirmative measures to conceal the fact that HHS General Counsel del Real was a covered agent. Upon information and belief, U.S. Attorney Lynch will learn that AAG of the Civil Division Willard knew that HHS General Counsel del Real’s command and control officer made the decision to initiate the “Fraud Against the Government” investigation of Robert to secure Robert’s incarceration and disbarment. The purpose was to end his legal challenge to HHS General Counsel del Real’s “Jackson nonacquiescence policy” which, if successful, would eliminate an off-OMB Budget funding stream to pay for “black operations” that could not be funded with classified OBM Budget funds. AAG of the Civil Division Willard knew that the domestic “black operations” violated the Boland Amendment, the National Security Act, the FISA, the PCA and the Social Security Act, and were impeachable offenses. §§ K, M, CC.
U.S. Attorney Lynch will learn whether AAG of the Civil Division Willard was the command and control officer of Chief Begleiter, AUSA Greenwald, and AUSA Noyer. Upon information and belief, she will learn that AUSA Greenwald honorably refused to violate NYS Judiciary Law § 487 by deceiving Judge Wexler and Robert, a/k/a Snowflake 5391 to the DOJ. Upon information and belief, she will learn AAG of the Civil Division Willard, not U.S. Attorney Dearie, made the decision to remove her as the lead attorney in Robert v Holz. § F.
U.S. Attorney Lynch will learn that AAG of the Civil Division Willard had first been an intelligence policy counsel for AG Smith tasked to stop national security leaks. “But he started as intelligence policy counsel to Attorney General William French Smith, who named him to head the inter-agency team that drafted the anti-leak order.” Aide Says Fears Led to Contra Affair, NY Times 2-15-88. http://www.snowflake5391.net/aagwillard.pdf. Emphasis Added.
AAG Richard Willard believed that the Iran-Contra leaks occurred because National Security Decision Directive 84 did not succeed in plugging all the “leaks” re the Iran-contra Affair that included the “black operations” that were needed to protect the national security:
A senior Justice Department official says the Reagan Administration might have avoided its mistakes in the Iran-contra affair if it had the political nerve to stand by its plan to curb leaks with widespread polygraph tests and expanded censorship.
The Administration paid a real price” for backing off from a 1984 Presidential order that was aimed at preventing unauthorized disclosures, said Assistant Attorney General Richard K. Willard, the architect of the plan, which was known as the National Security Decision Directive 84.
That price showed up most clearly in Iran-contra,” Mr. Willard said in an interview as he prepared to leave Government this week for private practice. “People were so afraid of the leaks from official channels that they bypassed those safeguards. They adopted all these other approaches that resulted in inadequate consideration and scrutiny. Emphasis Added. Aide Says Fears Led to Contra Affair. Id. NY Times, 2-15-88.
40 Pursuant to the March 11, 1983 National Security Decision Directive 84, Safeguarding National Security Information, all persons who handle classified information were required to sign nondisclosure agreements. The FBI was tasked with investigating nondisclosure violations:
3. Unauthorized disclosures of classified information shall be reported to the Department of Justice and the Information Security Oversight Office, as required by statute and Executive orders. The Department of Justice shall continue to review reported unauthorized disclosures of classified information to determine whether FBI investigation is warranted. Interested departments and agencies shall be consulted in developing criteria for evaluating such matters and in determining which cases should receive an investigative priority. The FBI is authorized to investigate such matters as constitute potential violations of federal criminal law, even though administrative sanctions may be sought instead of criminal prosecution. Id. 2. http://www.fas.org/irp/offdocs/nsdd/nsdd-084.htm
The FBI’s involvement in the “Fraud Against the Government” investigation of Robert is revealed in the Robert VII v DOJ “FISC Robert” documents. AG Holder’s review of AG Meese’s petition for the FISC Robert surveillance warrants reveal the false fact that the FBI had evidence that Robert was a terrorist or an agent of a foreign power. This remains a smoking gun 2010 fact because the appellant’s July 27, 2010 FOIA request seeks the release of the National Security Directive 84 FBI counterintelligence “plumber” unit 1980s records of Robert. The 1985 records will be subject to the 25 year automatic declassification rule. §§ L, M, AAA.
U.S. Attorney Lynch will learn that in 1985 AAG of the Civil Division Willard designated EDNY Chief Begleiter as the compartmentalized EDNY attorney to know the classified information that EDNY U.S. Attorney Dearie was not to know. U.S. Attorney Lynch will learn that the 1985 EDNY stovepipe bypassed U.S. Attorney Dearie so that U.S. Attorney Dearie would not know that the Robert “Fraud Against the Government” investigation was being conducted at the same time as Robert was litigating Ruppert in which EDNY Begleiter was the supervising attorney of AUSA Zwany, the EDNY lead counsel in Ruppert. § S.
Because of the 1985 EDNY stovepipe that bypassed EDNY U.S. Attorney Dearie, he did not know whether AAG of the Civil Division Willard was the “main Washington” attorney who appeared at the critical September 4, 1985 Ruppert conference held in Judge Altimari’s Chambers after the July 25, 1985 House testimony of Acting SSA Commissioner Mc Steen, SSA Chief Counsel Gonya, and DAAG Kuhl that the nonacquiescence policy had ended. As a result, U.S. Attorney Dearie did not know the content of the “main Washington” attorney’s ex parte communication with Judge Altimari. U.S. Attorney Lynch will learn from reading the 1985 Ruppert case file notes whether AAG of the Civil Division Willard was the “main Washington” attorney and the content of his ex parte communication with Judge Altimari. § S.
EDNY Chief Begleiter knew on September 4, 1985 that the July 25, 1985 House testimony was false. He knew his command and control officer was AAG of the Civil Division Willard, and not U.S. Attorney Dearie. This resulted in U.S. Attorney Dearie not knowing that he was defending the “Jackson nonacquiescence policy” after July 25, 1985. §§ E, F, S, Z.
41 U.S. Attorney Lynch can read the 1982-1990 Ruppert and the 1986-1994 Gordon case file notes and e-mails to learn that EDNY Chief Begleiter knew that Associate WH Counsel Astrue’s June 22, 1989 Senate Finance Committee testimony that the nonacquiescence policy had ended prior to 1989, was uncured false testimony. This is an important mens rea fact because Chief Begleiter was also the supervising attorney of 1985-1989 EDNY AUSA Valerie Caproni who had knowledge of the 1984-1988 civil and criminal “Fraud Against the Government” investigation of Robert and the withholding of facts from Judge Wexler. §§ D, T, CC, AAA.
These are 2010 connect-the-dots fact because 2003-2010 FBI General Counsel Caproni in 2004 read the Robert VII v DOJ “FISC Robert” documents and knew that FBI Director Judge Webster’s continued certifications of the need for ongoing Robert FISC warrants, contained the false fact that there was evidence that Robert was a terrorist or an agent of a foreign power. She has taken no action to cure this false fact. FBI General Counsel Caproni also knows whether the “FISC Robert” documents reveal that AG Meese and FBI Director Judge Webster did not inform the FISC of the “do not exist” NSA TSP from which the FBI counterintelligence “plumber” unit had access when they provided Robert information to HHS General Counsel del Real for use in the “Fraud Against the Government” investigation of Robert. §§ E, F, G, M, N, Y, AAA.
When EDNY U.S. Attorney Dearie became an EDNY Judge, he was succeeded by U.S. Attorney Raggi. She had been a 1976-1977 Law clerk to a Seventh Circuit Judge, before becoming a 1979-1986 EDNY AUSA. She became the EDNY Chief of the Special Prosecutions Division. On May 7, 1987, she would became the EDNY Judge who replaced Judge Altimari when he became a Second Circuit Judge. In 2002, she would become a Second Circuit Judge. The EDNY stovepipe that bypassed U.S. Attorney Dearie also bypassed U.S. Attorney Raggi. As a result, like U.S Attorney Dearie, she did not know that in 1986 she defended the Seventh Circuit “Jackson nonacquiescence policy” of Chief Begleiter that was contrary to the sworn July 25, 1985 House testimony of Acting SSA Commissioner Mc Steen, SSA Chief Counsel Gonya, and DAAG Kuhl that the nonacquiescence policy had ended on June 3, 1985. §§ G, P, Q, S.
U.S. Attorney Lynch will learn that the use of the 2010 EDNY stovepipe is one of the reasons why in July, 2010 millions of 1994-2010 Ford v Shalala class members due process rights continue to be violated during U.S. Attorney Lynch’s 2010 Constitutional watch. U.S. Attorney Lynch will learn that AUSA Mahoney’s Ford “command and control” officer is not U.S. Attorney Lynch, but a “main Washington” attorney who knows that Ford “remedy” Notices that cited to the Jackson regulation, 20 C.F.R.416.1130(b), would lead to the end of the off- OMB Budget funding stream that SSA Commissioner Astrue is diverting to pay for the 2010 maintenance of the “do not exist” NSA TSP banks in the DOD Cyber Command’s custody. § K.
Former -EDNY U.S. Attorneys Maloney (1986-1992), White (1992-1993), Carter (1993- 1999), Vinegrad (2001-2002), and Mauskopf (2002-2007), who were K & A supervising attorneys during Ford, Robert, Ruppert, and Gordon litigation, can confirm the existence of the EDNY “stovepipe” during their Constitutional watches. If asked, they will inform U.S. Attorney Lynch that they too did not make any litigation decisions with an intent to withhold material facts from Judges to protect DIA-CIA-FBI sources and methods. Hence, the importance of U.S. Attorney Lynch informing AG Holder that the EDNY stovepipe bypassed these EDNY U.S. Attorneys when AG Holder considers the appellant’s offer of a quiet settlement. §§ B, C.
42 J. The July, 2010 test to prove to AG Holder that a 2010 DOJ “stovepipe” exists that bypasses AG Holder’s 2010 “chain of command” attorneys because each 2010 attorney will have a 28 U.S.C. 535 (b) duty to report to AG Holder that SSA Commissioner Astrue’s June 22, 1989 and January 24, 2007 Senate Finance Committee testimony was false
U.S. Attorney Lynch has been informed of appellant’s July, 27, 2010 FOIA requests to prove to AG Holder that a 2010 DOJ stovepipe exists that bypasses AG Holder’s 2010 chain of command attorneys. On August 18, 2010, the appellant will place the 2010 chain of command attorneys on Notice of their 28 U.S.C. § 535 (b) duty to report to AG Holder that SSA Commissioner Astrue’s June 22, 1989 and January 24, 2007 Senate Finance Committee that the nonacquiescence policy had ended, remained in July, 2010 as uncured false testimony. If by August 30, 2010 the appellant does not receive an e-mail acknowledgment from each one of chain of command” attorneys, then this will be evidence of the existence of the 2010 stovepipe that begins in the mail rooms of the AG Holder’s chain of command attorneys.
AUSA Mahoney has not informed the appellant whether she has taken any action to determine whether her clients will consider the appellant’s offer of a quiet settlement in order that the Robert VIII v DOJ, HHS, and SSA appeal is not reinstated on September 3, 2010. Upon information and belief, her “command and control” officer is not U.S. Attorney Lynch because the EDNY stovepipe continues in 2010. The appellant will prove that fact if U.S. Attorney Lynch does not provide Robert with a August 16, 2010 e-mail acknowledgment of the receipt of the July 27, 2010 White Paper and letter request for an informal settlement conference. No acknowledgment will be August, 2010 proof of the mail room stovepipe bypass. § I.
On August 18, 2010, the appellant will serve this White Paper on AG Holder’s chain of command attorneys listed below. Given the allegation that a July, 2010 EDNY stovepipe bypasses EDNY U.S. Attorney Lynch, he will request an e-mail acknowledgement by August 30, 2010. If there are no acknowledgments by that date, then the appellant will know that an August, 2010 main Justice stovepipe exists that bypasses AG Holder’s chain of command attorneys and leads to a 2010 daisy-chain of shadow government attorney-patriots. § N.
The appellant will also provide copies of his July 27, 2010 de novo FOIA requests and place each chain of command attorney on Notice of the duty to read the Jackson regulation, 20 C.F.R § 416.1130 (b), and SSA Commissioner Astrue’s June 22, 1989 and January 24, 2007 Senate Finance Committee testimony that the nonacquiescence policy had ended prior to 1989. He will place each August, 2010 “chain of command” attorney on Notice of 28 U.S.C. § 535 (b), Investigation of crimes involving Government officers and employees, and his/her duty to report to AG Holder that SSA Commissioner Astrue’s June 22, 1989 and January 24, 2007 Senate testimony remains in August, 2010 as uncured false sworn testimony:
(b) Any information, allegation, matter, or complaint witnessed, discovered, or received in a department or agency of the executive branch of the Government relating to violations of Federal criminal law involving Government officers and employees shall be expeditiously reported to the Attorney General by the head of the department or agency, or the witness, discoverer, or recipient, as appropriate, … Emphasis Added.
43 The following is a list of AG Holder’s “chain of command” attorneys who will be served with this White Paper and placed on Notice of their 28 U.S.C. § 535 (b) duty. Some of AG Holder’s 2010 “chain of command” attorneys were 1993-2001 AG Reno’s “chain of command” main Justice attorneys who did not know that Associate WH Counsel Astrue had lied to the Senate Finance Committee at his June 22, 1989 confirmation hearing to be the HHS General Counsel, that the HHS “nonacquiescence policy had ended prior to 1989. §§ D, E, F, G, H.
1. SG Kagen was served on July 27, 2010 because she could end the DOJ nonacquiescence policy in her final weeks as the SG. She was the 1995-1996 Associate Counsel for WH Counsel Abner Mikva and 1997-99 Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council. She can read SG Days’ February, 1996 Gordon case file notes and e-mails and solve the Gordon riddle whether SG Days had provided inaccurate information to the Supreme Court in his Brief in opposition to the petition for a writ of certiorari in which he defended the 1984-1996 HHS nonacquiescence policy, or whether Associate WH Counsel Astrue had lied to the Senate Finance Committee on June 22, 1989 that the “nonacquiescence” policy had ended. She can read SG Clement’s December 2006 Robert VII v DOJ SG case file notes and e-mails to determine whether SG Clement made an affirmative litigation decision not to file a Robert VII v DOJ Brief in opposition to the petition for a writ of certiorari, because he knew that AAG of the Civil Division Keisler had implemented the “Barrett nonacquiescence” policy and withheld facts from the Second Circuit in DOJ’s April 3, 1986 letter-Brief re the 50 U.S.C. § 1806 (f) Robert standing issue. §§ D-H, T, CC, DD, GG.
2. Acting DAG Grindler was AG Reno’s Principal Associate Deputy Attorney General and Counselor to the Attorney General, Deputy Assistant Attorney General in the Civil Division, and a former-SDNY AUSA. He can read DAG Holder’s 2000 Ford case file notes and e-mails to determine why DAG Holder did not perfect U.S. Attorney Lynch’s 2000 Notice of Appeal, and whether SSA Commissioner Astrue lied to the Senate Finance Committee on January 24, 2007.
3. Associate AG Perrelli was 1997-99 Counsel to AG Reno and 1999-2001 Deputy Assistant Attorney General supervising the Federal Programs Branch of the Civil Division. He has a duty to read AAG of the Civil Division Keisler’s 2007 Ford case file notes and e-mails to learn why AAG of the Civil Division Keisler decided that the Ford “remedy” Notices would not include Notices sent to the Ford class members that include citations to SSI regulations, including the Jackson regulation, 20 C.F.R. 416.1130 (b). He will learn why the Ford due process violations continue in 2010 and whether SSA Commissioner Astrue had lied to the Senate Finance Committee on January 24, 2007 that the nonacquiescence policy had ended. § C, E.
4. IG Fine was hired in 1995 by IG Bromwich and succeeded him in 2000. He will know from reading the Robert VII v DOJ documents, case file notes, and e-mail whether he has jurisdiction to review 2009-2010 FBI communications with the DOD Cyber command to determine whether 2010 FBI agents know of the 1984-2005 violations of the “exclusivity provision” of the FISA. From reading the documents withheld pursuant to the “Glomar Response” defense, he will know whether HHS General Counsel Astrue had been a DIA-CIA-FBI covered agent. He will learn whether SSA Commissioner Astrue lied to the Senate Finance Committee on June 22, 1989 and January 24, 2007 in order to protect the off-OMB budget source for funding the “do not exist” 1984-2010 NSA TSP and PSP data banks in the custody of the DOD Cyber Command. §§ K, Y.
44 5. AAG of the OLP Schroeder was the 1992-1993 Chief Counsel to the Judiciary Committee, 1993-1994 Counselor to and Acting AAG of the OLC, 1995-1997 Deputy AAG, 1998-1999 and Chairman Biden’s Impeachment Trial Counsel. He will know from reading the classified OLC nonacquiescence policy documents along with 2009-2010 DOD Cyber Command communications, whether there are 2010 violations of the “exclusivity provision” of the FISA and the military domestic law enforcement limitations of the PCA. If so, then he knows these are impeachable offenses with the knowledge of FBI General Counsel Caproni, but without the knowledge of President Obama, FBI Director Mueller, CIA Director Panetta, DOD Secretary Gates, AG Holder, Acting DAG Grindler, Associate AG Perrelli, and WH Counsel Bauer. § K.
6. AAG of the National Security Division Kris was 2000-2003 Associate DAG. He will know from reading Robert VII v DOJ classified documents, case file notes and e-mails whether AAG of the Civil Division Keisler implemented the “Barrett nonacquiescence policy” and withheld material facts from Judge Garaufis and the Second Circuit. He will learn whether the “Robert FISC” documents corroborate his allegation that FBI General Counsel Caproni knows AG Meese’s Robert FISC petition contained the uncured false information that FBI Director Judge Webster had evidence that Robert was a terrorist or an agent of a foreign power. §§ L, M, N, O.
7. Acting AAG of the OLC Barron was the 1996 OLC Principal Deputy Assistant Attorney General for Acting AAG of the OLC Dawn Johnson. As a Constitutional and Administrative Law Harvard Law Professor, he was the co-author with SG Kagan of the important Law Review article: "Chevron's Nondelegation Doctrine," 2001 Supreme Court Review 201 (2001), and the author of "Constitutionalism in the Shadow of Doctrine: The President's Non-enforcement Power," 63 Journal of Law and Contemporary Problems 16 (2000). He will learn from reading the OLC unclassified and classified nonacquiescence policy documents whether AGs Ashcroft, Gonzales, (Acting) Keisler, Judge Mukasey, and Holder have complied with their 2002-2010 28 U.S.C. 530D duty to report to Congress the 1982 Jackson, 1986 Barrett, 1990 Ruppert, 2001 Christensen, and 2007 Ford nonacquiescence cases, or whether President Bush’s November 2, 2002 national security “exception” standard applied. He may determine that these are not OLC nonacquiecence cases because SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee testimony was accurate that the nonacquiescence policy had ended prior to his becoming the HHS General Counsel in 1989. §§ A, C, D, E, F, G, H.
8. AAG of the Criminal Division Breuer was 1997 to 1999 Special Counsel to President Clinton. He can read the Jackson regulation, 20 C.F.R. 416.1130 (b), the 2007 Ford case file notes and e- mails and the June 22, 1989 Senate Finance Committee testimony of Associate WH Counsel Astrue, and determine whether HHS General Counsel Nominee Astrue had lied that the nonacquiescence policy had ended prior to his becoming the HHS General Counsel in 1989. He can also read AAG of the Criminal Division Weld’s 1987 case file notes and e-mails re the joint FBI-DOJ-HHS “Fraud Against the Government” investigation of IMC and determine why he terminated that investigation, but sought the extradition of the fugitive IMC President Recarey. He can also read AAG of the Criminal Division Weld’s 1987 case file notes regarding the “Fraud Against the Government” investigation of Robert and learn why he terminated the DOJ criminal investigation of Robert given the content of the sealed Robert v Holz documents that reveal why HHS General Counsel del Real had initiated the “Fraud Against the Government” investigation of Robert prior to his becoming the IMC Chief of Staff. §§ F, Y.
45 9. AAG of the Civil Division West was a 1993-1994 Special Assistant to DAGs Heymann and Gorelick. He can read the 1986-1996 Gordon case file notes and e-mails of 1993-1998 AAG of the Civil Division Hunger and the 2007 Ford case file notes and e-mails of AAG of the Civil Division Keisler, to determine whether SSA Commissioner Astrue lied on January 24, 2007 to the Senate Finance Committee that the nonacquiescence policy had ended prior to 1989. He can also read the Robert v National Archives case file notes and e-mails of 1999-2001 AAG of the Civil Division Ogden. He will learn whether he implemented the “Barrett nonacquiescence policy” of AAG of the OLC Cooper and withheld material facts from Judge Wexler and the Second Circuit to protect DIA-CIA-FBI domestic sources and methods to “rig” the HHS SSA computer to apply the “Jackson nonacquiescence policy” to generate the unaudited HHS funds that were used to pay for the construction and maintenance of the “do not exist” NSA TSP data banks that were accessed by a 1993-2001 DIA-CIA-FBI counterintelligence “plumber” unit without the knowledge of President Clinton, AG Reno, and DAG Holder. §§ M, N, CC.
10. EOUSA Director Jarrett was the 1998-2008 OPR Director. He will know from reading the EOUSA’s Ford v Shalala case file notes and e-mails whether the Ford remedy has cured the due process and equal protection violations visited upon the 1994-2010 Ford class members residing in the 94 Offices of the U.S. Attorneys. He will know whether SSA Commissioner Astrue lied to the January 24, 2007 Senate Finance Committee that the nonacquiescence policy had ended prior to his becoming the HHS General Counsel in 1989. Because he was the 1998-2008 OPR Director, he can advise whether 1999-2001 U.S. Attorney Lynch has a 2010 Rule 3.3 duty to report to the Second Circuit whether that the “Barrett nonacquiescence policy” material facts had been withheld from Judge Wexler, Judge Mishler, and Second Circuit in Robert v National Archives and Robert v DOJ, and whether with 20/20 hindsight there had been misrepresentations of fact and law made to the Article III Judges in 1999 and 2000. §§ E, G, H.
11. Acting OPR Director Brown was from 1989-2008 in the D.C. Office of the U.S. Attorney. She was the 1997-2002 Deputy Chief of the Appellate Division, 2002-2004 Deputy Chief of the Fraud and Public Corruption Section, and 2004-2007 Executive Assistant U.S. Attorney Operations where she managed and directed the oversight of significant civil and criminal cases and special operations. She can read the Ford case file notes and e-mails and advise AG Holder whether the Jackson and Ruppert nonacquiescence policy decisions were made pursuant to the “Thornburgh-Giuliani” acquiescence policy as explained in OPR Director Shaheen’s January 9, 1989 letter to Robert. http://www.snowflake5391.net/1-9-89Shaheen.pdf. She will know whether SSA Commissioner Astrue lied to the January 24, 2007 Senate Finance Committee that the “nonacquiescence” policy ended prior to his becoming the HHS General Counsel in 1989. § H.
12. Associate Deputy Attorney General Margolis has been a 1993-2010 Associate Deputy Attorney General. Because he has a legendary status as an attorney of impeccable integrity, AG Holder tasked him with the review OPR Director Jarrett’s recommendation of professional misconduct by the OLC attorneys who wrote the enhanced interrogation memos. He can read the Robert VII v DOJ case file notes and e-mails and determine whether AAG of the Civil Division Keisler and AUSA Mahoney in 2006 withheld material facts from the Second Circuit with an intent to deceive the Second Circuit. He can read the Jackson regulation, 20 C.F.R. § 416.1130(b) and determine whether SSA Commissioner Astrue lied to the January 24, 2007 Senate Finance Committee that the nonacquiescence policy had ended prior to 1989. §§ E, H.
46 13. Associate Deputy Attorney General James Baker was a 1996-1989 staff attorney for the Office of Intelligence Policy and Review (OIPR), 1998-2001 OIPR Deputy Counsel, May 2001 Acting OIPR Acting Counsel, and 2002-2007 Counsel for the National Security Division of Intelligence Policy. He knows the national security secret he was protecting on March 1, 2004 when he used FOIA Exemption 1 and the “Glomar Response” defense to withhold the FOIA requested “Robert FISC” documents that reveal whether AG Meese informed the FISC of the existence of the “do not exist” 1980s NSA TSP data banks that the DIA-CIA-FBI counterintelligence “plumber” unit accessed to secure the “Robert” information provided HHS General Counsel del Real for use in his “Fraud Against the Government” investigation of Robert. He knows why his command and control officer ordered him to withdraw his “uncorrected” Declaration and replace it with his “corrected” October 1, 2004 Robert VII v DOJ Declaration. http://www.snowflake5391.net/baker.pdf. He knows that AG Meese’s FISA Robert application included the false fact that the FBI had evidence that Robert was a terrorist or an agent of a foreign power. He knows that AAG of the Civil Division Keisler and AUSA Mahoney had implemented the “Barrett nonacquiescence policy” and intentionally withheld material facts from the Second Circuit in DOJ’s April 3, 2006 letter Brief as to whether Robert was an “aggrieved person” pursuant to 50 U.S.C. 1806(f), after President Bush had informed the public of the existence of the 2002-2005 post-9/11 NSA PSP, but not of the existence of the “do not exist” pre-9/11 NSA TSP. http://www.snowflake5391.net/RobertvDOJbrief.pdf. §§ E, F, G, H, M.
14. Deputy Assistant Attorney General of the Civil Division Hertz was the Acting AAG of the Civil Division in 2009 prior to the confirmation of AAG of the Civil Division West. He is the DOJ resident qui tam expert. He knows that that realtor Leon Weinstein’s IMC qui tam case file contains classified information re the joint FBI-DOJ-HHS task force that investigated the “Fraud Against the Government” investigation of IMC that AAG of the Criminal Division Weld terminated in 1987. He knows why in Robert VIII v DOJ, HHS, and SSA, the DOJ FOIA Officer who performed the due diligence search for the “IMC Investigation Final Report” document, limited her search to the South Florida Office of the U.S. Attorney and did not include a search in DAAG of the Civil Division Hertz’ “main Washington” office. He knows why AG Judge Mukasey did not use the “state secrets” defense or FOIA Exemption 1, 3 or the “Glomar Response” defenses to withhold the “IMC Investigation Final Report” that FBI Director Judge Freeh had read when he made his Robert III v DOJ decision to use the “Glomar Response” defense to withhold the FOIA requested “Recarey extradition” documents. §§ E, Y.
15. AAG of the Office of Legislative Affairs Weich was a Senate Judiciary Committee staff attorney who worked in the Offices of Senator Kennedy, Specter, and Majority Leader Reid. He knows the legislative history of the National Security Act 50 U.S.C. 413 (b), Reports concerning illegal intelligence activities, and the duty of President Obama to promptly report illegal intelligence activity to the congressional oversight committees and report “corrective action that has been taken or is planned in connection with such illegal activity.” He can read the Robert VIII v DOJ, HHS, and SSA “c (3) exclusion” Declarations and decide whether they comply with the FOIA amendments of 1986. He can read the 1982-2009 “OMB Jackson” documents withheld by the OMB FOIA Officer’s decision to use the “Glomar Response” defense. He can determine whether these off-OMB Budget “follow the money” documents reveal whether illegal intelligence activities were conducted by 1984-2010 NSA Directors who accessed the “do not exist” 1984-2010 NSA TSP and PSP data banks without the knowledge of Congress. §§ K, CC.
47 President Obama’s E.O. 13,256 provides an internal review process which can determine whether AG Holder’s March 29, 2009 FOIA Guidelines trump FBI General Counsel Caproni implementing the March 11, 1983 National Security Directive 84 that was drafted by AAG of the Civil Division Willard. Each of AG Holder’s chain of command attorneys who has signed a nondisclosure agreement not to reveal the identity of HHS General Counsel del Real and his successor HHS General Counsels as covered agents, will seek guidance from AAG of the OLP Schroeder. He will advise whether they have a 28 U.S.C. § 535(b) duty to report to AG Holder the fact that SSA Commissioner Astrue had lied to the Senate Finance Committee on January 24, 2007 that the nonacquiescence policy had ended because he has “rigged” the 2007-2010 SSA computer to apply the Jackson and Ruppert nonacquiescence policy standards. §§ J, S.
If none of AG Holder’s 2010 chain of command attorneys provide e-mail acknowledgments of the August 18, 2010 service by August 30, 2010 of this White Paper, then this is August, 2010 evidence of the existence of the DOJ EDNY “stovepipes” that bypass AG Holder’s 2010 chain of command attorneys. The appellant anticipates that by August 30, 2010, he will receive no e-mail acknowledgment of the service letters. If so, then this will confirm his almost incredible allegation that a 2010 DOJ stovepipe exists that bypasses AG Holder’s chain of command attorneys in order that they too have a plausible deniability defense to the 2010 serial violation of federal laws that are 2010 impeachable offenses because they violate the National Security Act, the FISA, the PCA and the Social Security Act. § N.
Then if AG Holder does not agree by August 30, 2010 to the appellant’s offer of a quiet settlement, the appellant will file the Robert VIII v DOJ, HHS, and SSA appeal reinstatement. Then if there are no final FOIA decisions for his July 27, 2010 de novo FOIA requests, he will will file his 2010 Motion with Judge Garaufis seeking a pre-clearance Order to file his putative FOIA complaint to seek the documents which the appellant asserts will prove that DOJ attorneys implemented the “Barrett nonacquiescence policy” and withheld material facts for the purpose of deceiving Article III Judges including Judge Garaufis, the Second Circuit, and the Supreme Court in Robert VII v DOJ, and deceiving millions of Ford v Shalala class members. § F.
However, if the appellant is proven wrong and AG Holder’s chain of command attorneys provide e-mail acknowledgments by August 30, 2010, then this would mean that a 2010 DOJ stovepipe does not exist that bypasses AG Holder and his “chain of command” attorneys. Then each of AG Holder’s chain of command attorneys will fulfill their due diligence duty and determine whether SSA Commissioner Astrue’s June 22, 1989 Senate Finance Committee testimony as Associate WH Counsel Astrue, and his January 24, 2007 Senate Finance Committee testimony as SSA Commissioner Nominee, remain as uncured false testimony. Then they will fulfill their 28 U.S.C. § 535(b) duty to report to AG Holder their knowledge of this uncured false June 22, 1989 and January 24, 2007 Senate testimony. § YY.
Hence, the importance of the August, 2010 test to determine whether an August, 2010 main Justice stovepipe exists that bypasses AG Holder’s chain of command attorneys and AG Holder. If so, then this would mean that AG Holder will not have considered the appellant’s Robert VIII v DOJ, HHS, and SSA offer of a quiet settlement. If not, then this will result in the appellant filing the September 3, 2010 reinstatement. Then the issues which should have been quietly settled, will become public FOIA issues as the Second Circuit appeal proceeds. § A.
48 K. AG Holder’s K & A duty to read the 2010 Project National Security Reform study and to ask DNI NCTC Director Leiter whether he has access to the “do not exist” 1984- 2010 NSA TSP data banks and whether he knows the funding source for those data banks
AG Holder has his own K and A supervising attorney duty to read the Project National Security Reform (PNSR) February 10, 2010 Report: Toward Integrating Complex National Missions: Lessons From the National Counterterrorism Center’s Directorate of Strategic Operational Planning and to ask DNI NCTC Director Leiter whether the NCTC has access to the “do not exist” 1984-2010 NSA TSP and NSA PSP data banks and whether he knows the funding source for those data banks. Given the content of the 1982-2009 “OMB Jackson” documents withheld pursuant the “Glomar Response” defense, AG Holder should know whether the funding source of the NSA TSP and PSP data banks has been the off-OMB Budget “Jackson nonacquiescence policy” funds pursuant to the Top Secret decisions of the 1984-2010 daisy- chain of “shadow government” patriots without the knowledge of their Presidents. § A, YY, ZZ.
The PNSR 2010 Report’s Forward explained that its Board reviewed the National Counterterrorism Center’s post-9/11 mission to integrate a seamless whole-of-government plan: In 2009, in partial fulfillment of its congressional mandate, the Project on National Security Reform conducted a comprehensive study of the National Counterterrorism Center’s (NCTC) mission to integrate whole- of-government counterterrorism capabilities into strategic plans. A team of distinguished professionals from across the counterterrorism community informed and guided the study. The report calls for strengthening the interagency processes that serve as the connective tissue among government agencies charged with countering the terrorist threat. It focuses on the Directorate of Strategic Operational Planning (DSOP) within NCTC, but identifies many systemic impediments with implications for broader national security system. The review, based on the results of extensive research and engagement with governmental stakeholders, includes steps that the President, National Security Staff, NCTC , and Congress should take immediately to further national security reform. Id. v. Emphasis Added. http://graphics8.nytimes.com/packages/pdf/world/201002pnsrReport.pdf. The PNSR Board has a 1981-2010 collective institutional memory. Its Board Members know of off-Budget funding sources for “do not exist” intelligence community “black operations” that could not be funded with classified OMB Budget funds because their Presidents had not reported to Congress these “black operations” as required by the National Security Act, 50 U.S.C. § 413 (a). This included the “do not exist” pre-9/11 NSA TSP data banks. The PNSR Board includes Brent Scowcroft, the 1974-1977 National Security Advisor, 1986-1987 Tower Commission Member, 2001-2005 Chairman of President’s Foreign Intelligence Advisory Board; James Nussle, the 2007-2009 OMB Director; Mike Mc Connell, the 1992-1996 NSA Director and 2007-2009 Director of National Intelligence; John Mc Laughlin, the 2000-2004 Deputy Director of the CIA; and Kenneth Weinstein, the 2001-2002 EOUSA Director, the 2002 FBI General Counsel, the 2003 FBI Chief of Staff, the 2006-2008 AAG of the National Security Division, and the 2008 Homeland Security Advisor to President Bush. §§ L, M, N, O, Y, Z.
49 The PNSR Report analyzed the role of the NCTCs Directorate of Strategic Operational Planning (DSOP) as the USG’s post-9/11 key strategic counterterrorism planning unit: Established in 2004 within the National Counterterrorism Center (NCTC), the Directorate of Strategic Operational Planning (DSOP) is the nation’s first dedicated whole-of-government planning cell for counterrorism. Recommended by the 9/11 Commission and enacted by the Intelligence Reform and Terrorism Prevention Act (IRTPA). DSOP was chartered to provide the “connective tissue” between national counterterrorism policy and strategy established by the President, normally via the National Security Council system, and counterterrorism operations conducted by the departments and agencies. Id. Preface xi. Emphasis Added. The PNSR Report concluded in its Executive Summary that there remained in 2010 systemic gaps between the intelligence community agencies that should be closed: Notwithstanding this progress, numerous obstacles persist and prevent DSOP from becoming a more efficient and effective interagency entity. Many of these impediments are systemic, ranging from issues of authorities and resources to government-wide human capital constraints. Others are more specific to the inner workings of the Directorate itself, such as challenges related to its processes, products, and personnel systems. The study examined the range of challenges associated with conflicting mandates and cultures between agencies. It reviewed DSOPs key relationships with the National Security Staff, OMB, departments and agencies, and Congress. It looked deep inside the Directorate, but focused on understanding the systemic impediments to achieving a whole-of- government approach to counterterrorism. Id. xiv-xv. Emphasis added. The PNSR Report devoted its Chapter 7: Resource Oversight to explaining that the NCTC does not have access to all funding sources for the counterintelligence agencies because because the NCTC has no formal resource oversight authorities and “serves primarily in voluntary support and advisory role to OMB and the NSC” in 2010. Hence, the need for AG Holder to take the lead in determining the funding sources for the “do not exist” 1984-2010 NSA TSP and PSP data banks that the 2010 DOD Cyber Command military officers access:
The 9/11 Commission report proposed that the head of the NCTC work with the Office of Management and Budget to develop the president’s counterterrorism budget. Ultimately, the IRTPA did not provide NCTC any specific resource authorities other than the ability to advise the DNI on the “extent to which counterterrorism recommendations and budget proposals of department, agencies and elements of the United States government conform to the priorities established by the president.” However, because the director of NCTC reports to DNI on intelligence related matters only, the advice is strictly with respect to intelligence budgets, not the broader counterterrorism program. Unlike the DNI and “drug czar,” the director of NCTC has no formal resource oversight authorities of his own and serves primarily in voluntary support and advisory role to OMB and the NSC. Id. 81. Emphasis Added.
50 The PNSR Report explained that in preparing the OMB FY 2011 Budget, the OMB is now using the NCTC DSOP as a partner in a maturing budget process. The Report discussed the “data credibility” problem of the information received from the intelligence community agencies which remained in 2010 as a systemic concern for OMB and the DSOP:
Discussion: OMB examiners have begun to turn to DSOP as their analytic arm in the development of budget guidance. In July 2009 the deputy director of OMB and the assistant to the president for homeland security and counterterrorism signed FY 2011 budget guidance to departments and agencies that outlined counterterrorism priorities and asked that agencies budget appropriately to fill critical gaps. DSOP in partnership with the departments and OMB, played a central role in identifying counterterrorism capability gaps that needed to be addressed in the FY 2011 budget. OMB conducted a crosscutting review of those agencies’ submission to ensure compliance with the guidance. OMB staff indicated that, on the whole, departments and agencies were able to accommodate the guidance by shifting funding within their counterterrorism programs. Data credibility—ensuring departmental budget submissions accurately reflect their true counterterrorism programs levels—is still challenging due to the diversity and complexity of the mission. The accuracy of the budget has been a systemic concern across multiple mission areas and should improve over time as the OMB budget review process matures. Id. 82. Emphasis Added.
The PNSR Report explained the time delay of a new Administration making Intelligence Community changes to the OMB Budget for the first two years of governance. The Report explained that President Obama’s first real time intelligence community budget changes will not be until FY 2012, the last year of President Obama’s 2009-2013 Administration:
The current multiyear federal budget cycle constrains the USG’s ability to adjust medium-term programs with agility. This situation is especially limiting during transition years for the administration when a new president and his leadership team are significantly constrained from producing a budget that reflects the new administration’s priorities and areas of emphasis for the first two years of governance. A new administration traditionally makes minor adjustments to the budget of its predecessor and, in fact, has the ability to request reprogramming of funds from Congress. However, the first opportunity for this president to submit a budget based on this administration’s revised National Security Strategy will be FY 2012, the last year of the current term. Id. 86. Emphasis Added.
The PNSR Report made Recommendations regarding Counterterrorism OMB budgeting:
Recommendation 7.3: Through Executive Order, vest the director of NCTC with the responsibility to oversee all USG counterterrorism funding as an analytic arm of OMB and recommend such realignment to OMB and the NSC. Any such realignment recommendations should be made in coordination with department heads of affected agencies.
51 Recommendation 7.6: In coordination with the interagency community and OMB, DSOP should develop and submit to Congress a consolidated interagency CT budget display which will serve as a crosscutting analysis of all federal government agencies counterterrorism budgets. The integrated budget justification material should reflect. Id. 158. Emphasis added.
AG Holder will be assisting NCTC Director Leiter implement the 7.3 recommendation of the PNSR by informing him of off-OMB Budget sources of counterintelligence funding that NCTC Director Leiter should oversee in 2010 and budget for FY 2012. If AG Holder asks NCTC Director Leiter the question as to the source of the funding for the construction and maintenance of the 2010 DOD Cyber “do not exist” NSA TSP and PSP data banks, then NCTC Leiter will seek the answer to the question as he implements PNSR Recommendation 7.6.
President Obama’s new DNI Director Nominee Clapper knows the funding source for the DOD Cyber Command’s “do not exist” 1984-2010 NSA TSP and PSP data banks that included the construction of the “do not exist” buildings that were publicly mapped out on July 19, 2010 by the Washington Post in Top Secret America: A hidden world, growing beyond control. He also knows the systemic failures of the NCTC that were identified in the Senate Intelligence Committee’s May 18, 2010 Unclassified Executive Summary of the Committee Report on the Attempted Terrorist Attack on Northwest Airlines Flight 253, “Specifically, the NCTC was not organized adequately to full its mission.” http://intelligence.senate.gov/100518/1225report.pdf.
In the May 18, 2010 Senate Intelligence Committee Report’s Appendix, Senators Chambliss and Burr had additional views that highlighted the fact that there had not been compliance with the Intelligence Reform and Terrorism Prevention Act (IRTPA) because NCTC did not have access to all intelligence databases and all law enforcement information:
NCTC was created to be the central knowledge bank for all terrorism related information. As such, it is the only Intelligence Community agency with access to all intelligence databases as well as law enforcement information. Its unique role and access to information make it best suited to be responsible for integrating all intelligence—and connecting the dots—on any one particulars threat, as well as, to provide comprehensive strategic terrorism assessments. However, NCTC failed to organize itself in a manner consistent with Congress’ intent or in a manner would clearly identify its roles and responsibilities necessary to complete its mission. Id. Appendix 2-3. Emphasis added except for italics.
The Senators highlighted the NCTC responsibility when there are overlapping lines of authority was to be the primary IC agency which has access to all intelligence databases:
Overlapping efforts can help reduce the risk of one agency overlooking a threat, but these additional efforts cannot replace the need for one primary agency to have ultimate responsibility for this mission. As such, NCTC’s
52 failure to understand its fundamental and primary missions is a significant failure and remains so today. Id. Appendix 3. Emphasis Added.
The Senators highlighted the need for NCTC to access to all of the IC data banks:
The large number of intelligence databases compounded this problem by forcing some analysts and collectors to search multiple data bases. NCTC officials told Committee staff that NCTC does not have the technical ability to follow or process all leads. Rather, NCTC is dependent on its personnel to conduct complex searches in multiple intelligence databases and to rely on the memory and knowledge of those analysts to link to intelligence. CIA has similar problems with its main all-source counterterrorism database. This remains a problem today. Id. Appendix 3-4. Emphasis Added
If DNI Blair did not know of the existence of the “do not exist” 1984-2010 NSA TSP and PSP data banks under the jurisdiction of the DOD Cyber Command, then this would mean that the NCTC did not have 2009 access to the NSA TSP and PSP data banks which NSA Director Lt. General Alexander had access. If so, then this is a bizarre DNI-DOD recreation of the 1995 “wall” established by DAG Gorelick that was criticized as impeding information sharing between the IC and law enforcement agencies and led to the 9/11 IC failure. § DD.
Upon information and belief, the PNSR Board’s recommendation 7.6 was based in part on PNSR Board Member Scowcroft’s knowledge gained subsequent to the Tower Commission Report. He learned that CIA Director Casey had a 1982-1987 off-OMB Budget funding source to pay for the off-the-shelf “black operation” at IMC that paid for medical supplies and treatment of the Contras in violation of the Boland Amendment. Upon information and belief, recommendation 7.6 was based in part on PNSR Board Member Wainstein knowledge gained subsequent to being FBI Director Mueller’s 2002-2003 General Counsel and Chief of Staff and the 2006-2008 AAG of the National Security Division, that FBI Director Mueller did not have access to the “do not exist” 1984-2010 NSA TSP and PSP data banks. This was to provide FBI Director Mueller with a plausible deniability defense to the violation of the “exclusivity provision” of the FISA when he filed post-9/11 FISC petitions to secure FISC surveillance warrants and continued certifications of the need for the FISC surveillance warrants. Hence, the importance of AG Holder reading the Robert VII v DOJ case file notes and e-mails. § M, Y, Z.
After AG Holder learns who instructed the OMB FOIA Officer to use the “Glomar Response” to withhold the FOIA requested 1982-2009 “OMB Jackson” documents, AG Holder will learn whether there is an OMB “stovepipe” that leads to the daisy-chain of shadow government decision makers who make OMB decisions regarding the funding of the “do not exist” 1984-2010 NSA TSP and PSP data banks which had provided a 2009-2010 plausible deniability defense for OMB Director Orszag. AG Holder should know whether a DOD 2009- 2010 stovepipe exists that provides a plausibility defense ” for 2006-2010 DOD Secretary Gates, who as the 1982-1986 CIA Deputy Director for Intelligence, 1986-1989 CIA Deputy Director, and 1991-1993 CIA Director, did not know of the source of the funding of the “black operation” at IMC where medical supplies and treatment were provided to the Contras.§§ Y, AA.
53 August, 2010 is the appropriate time for AG Holder to ask DOD Secretary Gates the funding source for the construction and maintenance of the DOD Cyber Command “do not exist” NSA TSP and PSP data banks, because DOD Secretary Gates is reviewing the OMB Budget expenditures for 2010-2015. On May 7, 2010, DOD Secretary Gates advised the public that he is working more closely with OMB to better manage the DOD- OMB budget expenditures:
SEC. GATES: Well, we have -- we worked with OMB last year, and over the original -- we got, in our negotiation with OMB we got more money out through 2015. So what I'm trying to do here is make changes that at least through 2015, within the top-line number we've been given, where we can sustain the current force structure and size of our forces in terms of personnel. http://www.defense.gov/transcripts/transcript.aspx?transcriptid=4621
DOD Secretary Gates can ask NSA Director Lt. General Alexander the funding source for the construction and maintenance of the 1984-2010 “do not exist” NSA TSP and PSP data banks if the funding source was not from the 1984-2010 DOD classified OMB Budget. NSA Director Lt. General Alexander’s answer will solve the funding riddle of the 2002-2005 post- 9/11 “immaculate construction” NSA PSP data banks that were constructed and maintained during a period when President Bush did not fulfill his 50 U.S.C. § 413 (a) reporting duty. § CC.
Upon information and belief, NSA Director Lt. General Alexander’s answer to the 2002-2005 “immaculate construction” riddle, will be that the pre-9/11 “do not exist” NSA TSP data banks seamlessly became the post-9/11 NSA PSP data banks. The off-Budget “Jackson nonacquiescence policy” funds that had funded the construction and maintenance of the “do not exist” 1984-2001 pre-9/11 NSA TSP data banks, continued to be the funding stream for the “do not exist” 2002-2005 post-9/11 NSA PSP data banks. If asked, Lt. General Alexander will advise whether after President Bush fulfilled his National Security Act § 413 duty to report the 2002- 2005 NSA PSP to the Congress in December, 2005, the funding stream for the 2006-2010 NSA PSP continued to be off-OMB Budget unaudited “Jackson nonacquiescence policy” funds. § Z.
Thus, the 2010 PNSR Report provides AG Holder with a 2010 opportunity to assist NCTC Director Leiter comply with PRNR Recommendations 7.6 by providing Congress with a “a crosscutting analysis of all federal government agencies counterterrorism budgets” that accurately states the funding source for the construction and maintenance of the 2011 DOD Cyber Command “do not exist” NSA TSP and PSP data banks. This would fulfill the NCTC mission “to integrate whole-of-government counterterrorism capabilities into strategic plans.” If President Obama has complied with 50 U.S.C. §413 (b) and filed a “corrective action” plan with Congress, then his would mean that the NCTC now has access to “do not exist” 1984-2010 NSA TSP and PSP data banks funded in FY 2009 with off-OMB Budget funds. §§ N, CC, DD.
Hence, the importance of AG Holder learning where the 1982-2010 publicly unaccounted for “OMB Jackson” funds were diverted. He will learn whether the billions of 1982-2010 HHS- SSA “Jackson nonacquiescence policy” funds not paid to millions of SSI recipients not residing in the Seventh Circuit States, had paid for the “do not exist” 1984-2010 NSA TSP and PSP data banks. AG Holder’s July, 2010 knowledge of where the “lost” OMB funds were diverted will assist President Obama’s new DNI Director carry out the PRNR Recommendation 7.6. §§ DD.
54 L. The appellant has placed U.S. Attorney Lynch on Notice of the September, 2010 request for the DOJ declassification of OLC documents and Robert FOIA documents by the 2010 reconstituted NARA ISSO pursuant to § 1.5 of President Obama’s December 29, 2009 E.O. 13,526, Classified National Security Information, declassification procedures
The appellant has placed U.S. Attorney Lynch on Notice that in September, 2010 he will file requests for the DOJ declassification of classified OLC documents and Robert FOIA documents pursuant to President Obama’s December 29, 2009 E.O. 13,256, Classified National Security Information. On March 31, 2010, NARA Information Security Oversight Office (ISSO) Director William J. Bosanko delivered the ISSO’s “2009 Report to the President” that reported status of the new Executive Branch agencies classification and declassification programs. The appellant will request that AG Holder’s automatic, systemic, and mandatory declassification standards be applied to these documents. Some of the Robert FOIA documents will be subject to the rolling 25 year automatic declassification standards (2010-25=1985). §§ M, Y, AA, HH.
Pursuant to § 3.7 of E.O. 13,256, President Obama established the National Declassification Center at NARA to streamline the declassification process:
a) There is established within the National Archives a National Declassification Center to streamline declassification processes, facilitate quality-assurance measures, and implement standardized training regarding the declassification of records determined to have permanent historical value. There shall be a Director of the Center who shall be appointed or removed by the Archivist in consultation with the Secretaries of State, Defense, Energy, and Homeland Security, the Attorney General, and the Director of National Intelligence. Emphasis Added.
As his compliance with E.O. 13,256, AG Holder set up a DOJ Declassification website, http://www.justice.gov/open/declassification.html, with a DOJ mission statement:
Our democratic principles require that the American people be informed of the activities of their Government. Also, our Nation's progress depends on the free flow of information both within the Government and to the American people. Nevertheless, throughout our history, the national defense has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations. Protecting information critical to our Nation's security and demonstrating our commitment to open Government through accurate and accountable application of classification standards and routine, secure, and effective declassification are equally important priorities. Emphasis Added.
AG Holder’s declassification website explained the three DOJ declassification programs that appellant Robert will be requesting that AG Holder apply to the classified OLC “nonacquiescence” documents and the classified FOIA withheld connect-the-dots Robert v Holz, Robert III v DOJ, Robert VII v DOJ, and Robert VIII v DOJ, HHS, and SSA documents:
55 1. Automatic Declassification Program
The Automatic Declassification Program pertains to agencies with original classification authority (past and current). Information appraised as having permanent historical value is automatically declassified once it reaches 25 years of age unless an agency head has determined that it falls within a narrow exemption that permits continued classification and it has been appropriately approved.
Records that contain other agencies' classified information is referred to those agencies for action. Though the Department of Justice may declassify its interest in a document, it will not be fully declassified until other agency equities are cleared. Emphasis Added.
2. Systematic Declassification Program
The Systematic Declassification Program is a complementary program to automatic declassification. It requires all agencies that create classified information to establish and conduct a systematic declassification review program for classified permanently valuable records for the purpose of declassification after the records reach a specific age. Records exempted from automatic declassification are subject to the systematic review program. Emphasis Added.
3. Mandatory Declassification Review Program
The Mandatory Declassification Review Program permits individuals or agencies to require an agency to review specific classified national security information for purposes of seeking its declassification. This program allows historians, researchers, and other members of the public to identify documents and or information pertinent to their research. Emphasis Added.
The DOJ declassification website explains President Obama’s NARA Interagency Security Clearance Classification Appeals Panel (ISCAP), to which individuals or DOJ client agencies, CIA, DIA, DNI, or any intelligence community agency, can appeal the DOJ Mandatory Declassification Review (MDR) decisions to deny or affirm the release of the classified documents. The ISCAP will make the final § 1.5 and § 1.7 decisions:
Interagency Security Classification Appeals Panel (ISCAP)
Individuals or agencies may appeal mandatory declassification review decisions that have been denied at the agency level by appealing to the Interagency Security Classification Appeals Panel (ISCAP). This panel provides the necessary checks and balances for the mandatory declassification review program and a venue for presenting appeals to a neutral body. Emphasis Added.
56 In his March 31, 2010 cover letter sent to President Obama, NARA ISSO Director Bosanko explained the NARA ISSO’s compliance with the § E.O. 13,256 Report requirement:
We believe the direction you have provided will garner the commitment that is necessary to support the integrity of the classification system and we will focus our oversight efforts in the remainder of the FY 2010 on enduring that agencies take the actions necessary to bolster the foundation of the classification system. Agencies must strike a balance between preserving, protecting, and advancing National Security and supporting the goal of conducting business in an open manner to the greatest extent possible. Only then will the American people be fully confident that the classified national security information program serves them well. Emphasis Added. http://www.archives.gov/isoo/reports/2009-annual-report.pdf
The Report explained the importance of the review of Original Classifications Authority (OCA) classifications because subsequent derivative classifications were based on the original classification. The declassification decision will be a derivative classification decision:
The process of original classification must always include a determination by an OCA of the concise reason for the classification that falls within one or more of authorized categories of classification, the placement of markings to identify the information as classified, and the date or event when the information becomes declassified. By definition, original classification precedes all other aspects of the security classification system, including derivative classification, safeguarding, and declassification. Id. 2. Emphasis Added.
The Report explained the importance of the Mandatory Declassification Review (MDR):
MDR remains popular with some researchers as a less litigious alternative to requests under the Freedom of Information Act, as amended (FOIA). It is also used to seek the declassification of Presidential Papers or records not subject to FOIA. Id. 14. Emphasis Added.
The Report advised each agency of its responsibility to provide MDR resources:
Agencies are expected to provide sufficient resources to process MDR requests, conduct a review of the information for its possible declassification, and adjudicate and process appeals in a timely manner. Agencies must evaluate their own MDR programs and take action to eliminate their MDR backlogs. Id. 17. Emphasis Added.
The Report highlighted that errors in the process of making declassification decisions are the result of the incorrect original and derivative classifications. There is a need to make the 2010 derivative classifiers accountable for their actions in order to reduce over-classifications:
57 Agencies throughout the Executive Branch must address the improper marking of their classified documents to ensure classified national security information is properly protected. Markings are applied to leave no doubt about the classified status of the information, the level of protection required, and the duration of the classification. Agencies should provide more detailed and focused training to classifiers and perform regular reviews of representative samples of their original and derivative classification actions. Agencies could supplement their on-site reviews of classified information, similar to the ISOO document review, which can extend the reach of their security offices and help identify activities that need further oversight and assistance with the marking and classification. Electronic marking tools that compel classifiers to apply the required markings can significantly reduce the number of marking errors; document templates can also help in this area, as does the application of quality control procedures. Given the persistence and pervasiveness of marking and classification discrepancies in the Executive Branch, all agencies must make a determined and sustained effort to correct them. With the issuance of E.O. 13526, we now have additional training requirements for all original and derivative classifiers, and the ability to hold derivative classifiers accountable for their actions. This should lead to greater accuracy and reduce over-classifications. Id. 18-19. Emphasis Added.
The appellant’s July 27, 2010 FOIA requests includes Notice there will be a MDR request for the declassification of the 1982 “Jackson nonacquiescence policy” opinion of AAG of the OLC Ted Olson and 1986 “Barrett nonacquiescence policy” opinion of AAG of the OLC Charles Cooper. These OLC opinions were not reported to Congress pursuant to 28 U.S.C. § 530D. Therefore, they may have been designated pursuant to President Bush’s November 2, 2002 Presidential Signing Statement as “exception” opinions for “national security” reasons:
Based upon the text and structure of this section, the executive branch shall construe this reporting obligation to cover only unclassified orders in writing that are officially promulgated and are not included in the reports of the Attorney General or other Federal officers to whom this section applies. Emphasis Added. http://www.whitehouse.gov/news/releases/2002/11/20021104-3.html.
The appellant’s July 27, 2010 requests includes Notice there will be a MDR request for the declassification of Robert FOIAs withheld classified documents. These include DOJ Robert v Holz “Fraud Against the Government” investigation of Robert documents, Robert III v DOJ FBI “Recarey extradition” documents withheld by FBI Director Judge Freeh pursuant to his use of the “Glomar Response” defense, 1980s Robert VII v DOJ “FISC Robert” documents that contain AG Meese’s petition for the FISC warrantsand FBI Director’s continued need for surveillance certifications, 2004 OIPR Baker’s case file notes and e-mails, and the Robert VIII v DOJ, HHS, and SSA ex parte Declarations, case file notes, and e-mails. AG Holder should read these documents when he considers the appellant’s quiet settlement offer. §§ GG, AAA.
58 The appellant will place AG Holder’s MDR decision-making attorneys on Notice of Robert’s December 18, 2009 Second Circuit Robert VIII v DOJ, HHS, and SSA Motion for a CAMP Conference how-could-this-have-happened Jackson question, and the quiet settlement offer. He will inform them that it is the appellant’s belief that AG Holder and President Obama do not know that there have been a “continued classification” determinations as to the classified Jackson and Barrett “nonacquiescence” policy opinions. He will request that they consult with AAG of the National Security Division David Kris, the 2000-2003 Associate Deputy Attorney General, to confirm Robert’s allegation that the 1982-2010 HHS-SSA computer was “rigged” to apply the “Jackson nonacquiescence policy” to generate off-OMB Budget unaudited HHS- SSA funds to pay for the “do not exist” NSA TSP and PSP data banks from which 2010 DOD Cyber Command NSA Director Lt. General Alexander can secure domestic law enforcement information re U.S. citizens in violation of the National Security Act, FISA and PCA. § CC.
As published by the Second Circuit in Wilson v CIA, 586 F. 3d 171, (2d Cir. 2010), CIA Deputy Director Stephen Kappes explained that “continued classification” is necessary to protect the intelligence communities’ “sources and methods” for current and future use:
In addition, CIA intelligence-gathering methods are useful only so long as they remain unknown and unsuspected. Once a method is discovered, “its continued successful use will be in serious jeopardy.” Id ¶ 48. Therefore, “(a)cknowledging cover mechanisms used by the CIA would expose and officially confirm those mechanisms, hindering the effectiveness of the cover for current and future covert employees, as well as current and future intelligence operations.” Id. ¶ 58.” Id. 199 n.5 . Emphasis Added.
Hence, the importance of 2010 U.S. Attorney Lynch providing accurate information to the DOJ MDR attorneys in order that they understand the “collateral damage” caused by the “continued classification” of the “Jackson nonacquiescence policy” documents which provides a license to SSA Commissioner Astrue to continues to “rig” the 2010 SSA computer to apply the 1982 classified “Jackson nonacquiescence policy” of HHS General Counsel del Real to deny 2010 Ford class members benefits. If the DOJ MDR attorneys determine there is no classified or unclassified “Jackson nonacquiescence policy” OLC opinion, then U.S. Attorney Lynch will have a NYS Rules of Professional Conduct Rule 3.3(c) duty to cure misrepresentations of fact and law made to Article III Judges including the Second Circuit and Supreme Court. §§ E, T.
If the DOJ MDR attorneys determine that there is no classified or unclassified OLC “Barrett nonacquiescence policy” opinion, then they have a duty to inform AG Holder. Then AG Holder can instruct AG Fine to determine who have been making the 1986-2010 de facto DOJ “Barrett nonacquiescence policy” litigation decisions. Then AG Holder and President Obama can learn the names of the 2009-2010 fifth column daisy chain of shadow government DOJ litigation decision makers who have made the decisions to withhold material facts from Article III Judges to protect illegal sources and methods of the intelligence community. §§ C, AAA.
If the MDR decision makers do not declassify all of the Robert classified documents, then the appellant will cite those classified documents to AG Holder. He should read the documents and know who has rejected the appellant’s ongoing offer of a quiet settlement.
59 As per the July 27, 2010 letter to OIP Director Pustay requesting her assistance in securing a de novo FBI FOIA decision by FBI Chief FOIA Officer Hardy for the release of the “FBI Abshire” documents, if the FBI FOIA Officer denies the request because these are classified documents, then the appellant will file a request for MDR. Needless to say, historians and investigative reporters will consider the “FBI Abshire” documents an historical treasure trove because they reveal whether FBI Director Judge Webster’s December 1986 “task force of departmental general counselors” and 1986 Assistant WH Counsel Keisler had lied-by-omission to President Reagan re the violation of federal laws which were impeachable offenses: the Boland Amendment, National Security Act, PCA, FISA, and Social Security Act. §§ Y, AA.
As per the July 27, 2010 letter to OMB Chief FOIA Officer Hall requesting his decision to secure docket numbers for the FOIA requested 1982-2008 “OMB Jackson” and the 2009 “OMB Jackson” documents and FOIA decisions, if the FBI FOIA Officer denies the request because these are classified documents, then the appellant will file a MDR request. Needless to say, historians and investigative reporters will also consider the “OMB Jackson” documents as a historical treasure trove because of the February 10, 2010 unclassified PNSR Report and the IMC knowledge of NPSR Board Members Brett Scowcroft, a former-Tower Commission Member, James Nussle, a former-OMB Director, and Kenneth Wainstein, a former-FBI General Counsel. They will seek the documents to learn the answer to the unanswered historical riddle as to the source of funding for the “do not exist” 2002-2005 post-9/11 “immaculate construction” NSA PSP data banks that were not funded with classified OMB Budget documents. §§ K, Z, CC.
As per the July 27, 2010 de novo CIA FOIA request for the four Robert II v DOJ and CIA “North Notebook” documents, if a CIA FOIA Officer denies the request because these are “continued classification” documents, then the documents will be subject to a MDR decision. Historians and investigative reporters will know the significance of these documents because CIA Director Panetta’s FOIA Officer will be making a derivative 2010 “continued classification” decision as to the September, 1985 “North Notebook” documents. § AA.
As per the July 27, 2010 de novo NARA FOIA request for NARA “Peter Keisler Collection”, NARA “Perot”, and NARA “Robert v National Archives ‘Bulky Evidence File’ documents, if a NARA FOIA Officer denies the request because these are “continued classification” documents, then the documents are subject to a MDR decision. Historians and investigative reporters will also consider these classified NARA documents as a treasure trove of facts to learn the names of the daisy-chain of “shadow government” decision-makers § BB.
As per the July 27, 2009 DOD FOIA request for the DOD “NSA TSP and PSP data banks access guidelines” and the DNI “NCTC TSP and PSP data banks access guidelines,” if the DOD and DNI FOIA Officer denies the requests because they are classified documents, then the appellant will file MDR requests. Historians and investigative reporters will understand the historical importance of these connect-the-dots documents because of the “1984” Big Brother dangers of PCA violations by military officers’ access to the 1984-2010 data banks without the knowledge of DOD Secretary Gates, AG Holder, and President Obama. §§ CC, DD.
Therefore, U.S. Attorney Lynch should advise AG Holder the litigation consequences if the automatic and MDR FOIA requests are granted. Then AG Holder can consider those consequences which will increase in probability if the appeal is reinstated on September 3, 2010.
60 M. The appellant placed U.S. Attorney Lynch on Notice of his 2010 request for E.O. 13,526 § 1.7 misclassification decisions to determine whether pursuant to the 50 U.S.C. § 421 duty to protect covered agents identity, nondisclosure agreements were used by DOJ attorneys to cover up 1980s violations of the FISA as revealed in the Robert VII v DOJ litigation
The appellant placed U.S. Attorney Lynch on Notice of his September, 2010 request for E.O. 13,526 § 1.7 misclassification decisions to determine whether pursuant to the 50 U.S.C. § 421 duty to protect covered agents identity, nondisclosure agreements were used to cover up violations of federal laws. U.S. Attorney Lynch will learn how USG attorneys used the misclassification of documents and nondisclosure agreements during the Robert VII v DOJ, 2005 U.S. Dist. LEXIS 39616, 193 Fed. Appx. 8 (2d Cir. 2006), cert. den. 127 S.Ct. 1133 (2007), to cover up violations of the FISA. The Robert VII v DOJ withheld classified documents, case file notes, and e-mails reveal whether 1980s and 2004-2006 DOJ chain of command attorneys knew that a DIA-CIA-FBI counterterrorism “plumber” unit had misused Robert information from the “do not exist” NSP TSP data banks. The 1980s “plumber” unit knew the NSA TSP was being conducted in violation of the “exclusivity provision” of the FISA without the FISC’s knowledge, and knew the Robert FISC petition contained false information that the FBI had evidence that Robert was a terrorist or an agent of a foreign power. § AAA.
President Obama’s December 29, 2009 E.O. 13,526 § 1.7 Classification Prohibitions and Limitations, is built upon President Bush’s March 25, 2003 E.O. 13,292 § 1.7 and specifically includes derivative classifications. It prohibits the derivative classification of documents to cover up violations of federal laws by the Original Classifying Authority (OCA) classified documents that are subject to the § 1.7 declassification rules:
(a) In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to:
(1) conceal violations of law, inefficiency, or administrative error; (2) prevent embarrassment to a person, organization, or agency; (3) restrain competition; or (4) prevent or delay the release of information that does not require protection in the interest of the national security. Emphasis Added. President Obama’s December 29, 2009 E.O. 13,526 § 1.8 Use of Derivative Classification establishes accountability standards that are applied when derivative classifications are made. The derivative classifiers are to be identified as to name and position:
(b) Persons who apply derivative classification markings shall:
(1) be identified by name and position, or by personal identifier, in a manner that is immediately apparent for each derivative classification action;
(2) observe and respect original classification decisions; and
61 (3) carry forward to any newly created documents the pertinent classification markings. For information derivatively classified based on multiple sources, the derivative classifier shall carry forward:
(A) the date or event for declassification that corresponds to the longest period of classification among the sources, or the marking established pursuant to Section 1.6(a)(4)(D) of this order; and
(B) a listing of source materials
(c) Derivative classifiers shall, whenever practicable, use a classified addendum whenever classified information constitutes a small portion of an otherwise unclassified document or prepare a product to allow for dissemination at the lowest level of classification possible or in unclassified form. Emphasis added.
President Obama’s Section 1.6, Identification and Markings, provides an (a)(4)(D) standard for declassification instructions to protect the identification of covered agents:
(4) declassification instructions, which shall indicate one of the following: (A) the date or event for declassification, as prescribed by section 1.5 (a); (B) the date that is 10 years from the date of original classification, as prescribed by section 1.5 (b); (C) the date that is up to 25 years from the date of original classification, as prescribed in section 1.5(b); or (D) in the case of information that should clearly and demonstrably be expected to reveal the identity of a confidential human source or a human intelligence person or key design concepts of weapons of mass destruction, the markings prescribed in implementing directives issued pursuant to his order; Emphasis Added.
The appellant will inform the § 1.7 misclassification decision-makers of the 1982- 2010 “collateral damage” caused by the 1982 “Jackson nonacquiecence policy” decision of HHS General Counsel del Real. If HHS General Counsel del Real was a DIA-CIA-FBI domestic covered agent, then the ISCAP should know there has been a 1982-2010 “Ponzi” scheme of DIA-CIA-FBI derivative misclassifications to protect the sources and methods of the DIA-CIA-FBI “rigging” the 1982-2010 HHS-SSA computer to deny SSI benefits that triggers the Bowen v City of New York clandestine policy equitable tolling remedy. § P.
If there is not a quiet settlement, then in Robert VIII v DOJ, HHS, and SSA, the appellant will be making the E.O. 13,526 § 1.7 (a)(2) “prevent embarrassment” argument. AG Holder will be defending the classifications not to protect the national security, but to prevent “name and shame” revelations of the decisions USG attorneys. However, pursuant to E.O. 13,256, the public will learn the names of the 2010 derivative classifiers and whether they have the Chilicky “normal sensibilities” of human beings because they know the sources and methods of “rigging” the SSA computer to reduce Ford class benefits continue in 2010. § Q.
62 President Obama’s 2010 § 1.7 misclassification decision-makers will be applying the 25 year automatic declassification standard to the 1984-1985 sealed Robert v Holz documents. They will learn whether HHS General Counsel del Real was a domestic DIA-CIA-FBI covered agent when he initiated the “Fraud Against the Government” investigation of Robert to secure the incarceration and disbarment of an attorney challenging the 1982 “Jackson nonacquiescence policy” of HHS General Counsel del Real. The 2010 § 1.7 misclassification decision-makers will learn from reading the Robert v Holz FOIA case file notes whether Robert’s almost incredible allegation is true that HHS General Counsel del Real and successor covered agents, including HHS General Counsel Astrue, “rigged” the 1982-2010 HHS-SSA computer to apply the “Jackson nonacquiescence policy” to create off-OMB Budget unaudited HHS-SSA funds that were diverted to pay for DIA-CIA-FBI “black operations” including the funding of the 1984- 2010 NSA TSP and PSP data banks that were not funded with classified OMB Budget funds.
If President Obama’s 2010 § 1.7 misclassification decision-makers learn HHS General Counsel del Real was a 1982-1985 covered agent and in December, 1985 was a covered agent as IMC President Miguel Recarey’s Chief of Staff, then they will have to decide whether the 1982 Protection of identities of certain United States undercover intelligence officers, agents, informants, and sources, 50 U.S.C. § 421, applies to a domestic covered agent given the National Security Act and Posse Comitatus Act limitations as to DIA-CIA domestic spying and military domestic law enforcement activities. This is not a difficult 2010 § 1.7 decision because the 1982 statute establishes an easy to apply “United States is taking affirmative measures to conceal such covert agent’s intelligence relationship” test to determine if an agent was a covered agent:
50 U.S.C. § 421 provides:
(a) Disclosure of information by persons having or having had access to classified information that identifies covert agent Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than ten years, or both.
(b) Disclosure of information by persons who learn identity of covert agents as result of having access to classified information Whoever, as a result of having authorized access to classified information, learns the identify of a covert agent and intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than five years, or both.
(c) Disclosure of information by persons in course of pattern of activities intended to identify and expose covert agents Whoever, in the course of a
63 pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States, discloses any information that identifies an individual as a covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such individual and that the United States is taking affirmative measures to conceal such individual’s classified intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than three years, or both. Emphasis Added.
Upon information and belief, President Obama’s § 1.7 misclassification decision-makers will learn that 1982-1987 HHS General Counsel-IMC Chief of Staff del Real was a domestic covered agent and that the USG was taking “affirmative measures” to conceal his identity. The evidence of the “affirmative measures” is found in the nondisclosure agreements signed by the USG attorneys who have had a duty to protect the identity of HHS General Counsel del Real- IMC Chief of Staff del Real as a 50 U.S.C. § 421 covered agent. The § 1.7 misclassification decision-makers should be consulting with AG Holder to learn whether the Nondisclosure Agreement Form 312 provisions are voided if there is a finding of a § 1.7 (a) misclassification of documents because rogue USG attorneys were covering up violations of federal laws. § J.
AG Holder’s guidance is needed because putative USG “whistleblowers” know that in 2010 AG Holder will indict a USG employee who has signed a nondisclosure agreement re the NSA TSP. “Our national security demands that the sort of conduct alleged here — violating the government’s trust by illegally retaining and disclosing classified information — be prosecuted and prosecuted vigorously,” Lanny A. Breuer, the assistant attorney general in charge of the Justice Department’s criminal division, said in a statement.” Shane, Former N.S.A. Official Is Charged in Leaks Case, NY Times, 4-16-10. AG Holder should decide whether a § 1.7 misclassification decision ends the use of a nondisclosure agreement as a cover up shield.
The issue of DOJ “whistleblowers” revealing classified information, is an extraordinarily sensitive issue when it involves a Top Secret program like the “do not exist” NSA TSP when DOJ attorneys know there were violations of the “exclusivity provision” of the FISA. As per the November 26, 1996 OLC opinion of then-Acting AAG of the OLC Christopher Schroeder, a “nondisclosure agreement” trumps the duty of a government attorney to report a violation of a federal law to a Congressional Oversight Committee. “We believe that it would be antithetical to the existing system for an agency to permit individual employees to decide unilaterally to disclose classified information to a Member of Congress -- and we are unaware of any agency that does so.” Id. 4. Emphasis Added. http://www.fas.org/sgp/othergov/olc_nuccio.html.
President Obama’s E.O. 13,256 § 1.7 (a) misclassification “continue to be maintained as classified, or fail to be declassified” standard, provides an internal review process for “whistleblowers” to assert their allegation that there is a cover up of the violation of federal laws in a formal process with a Record and an ISCAP appeal. However, this internal check and balance will not occur if “appropriate authorities” can use a § 3.6 “Glomar Response” determination to prevent a § 1.7 review. The appellant will make this fatal flaw argument in his September, 2010 requests for § 1.5 MDR decisions and § 1.7 determinations. § L, N, CC, DD.
64 For example, in September, 2010 the appellant will make his request for a § 1.7 misclassification of the Robert VII v DOJ “FISC Robert” documents that are being sought in his July 27, 2010 de novo FOIA request. He will argue they were misclassified to cover up the violation of the “exclusivity provision” of the FISA. He will argue that there is no longer a national security risk issue because in December, 2005, President Bush informed the whole world of the existence of the “do not exist” 2002-2005 NSA PSP data banks. §§ CC, DD.
In August, 2010 the “appropriate authorities” will be instructing DOJ Chief FOIA Officer-Associate AG Perrelli whether the “Glomar Response” defense should again be used. That decision will be made with the knowledge that in September, 2010 the appellant will be filing his request for § 1.5 MDR decisions and § 1.7 misclassification determinations. The purpose of the appellant’s July 27, 2010 letter to AAG of the OLC Schroeder is to provide him with an opportunity to determine whether E.O. 13,256 is fatally flawed if “appropriate authorities” can make unreviewable “Glomar Response” decisions that prevent the docketing and processing of requests for § 1.7 misclassification adjudications. AAG of the OLP Schroeder will be reviewing the role of the “appropriate authorities” with the knowledge that the appellant will be arguing in Robert VIII v DOJ, HHS, and SSA, that the Second Circuit apply its Second Circuit’s Dinler standard. Robert will seek a remand with an instruction to Judge Garaufis to conduct an in camera review of the withheld Robert FOIA classified documents and issue a Finding whether USG attorneys committed a fraud upon the court in Robert VII v DOJ by withholding material facts from the Court on the FISA standing issue. §§ G, L, N, CC, XX.
Robert filed the July 27, 2010 de novo FOIA request for Robert VII v DOJ documents to prove to Judge Garaufis and the Second Circuit, that 2004-2006 DOJ attorneys implemented the “Barrett nonacquiescence policy” and withheld material facts for the intended purpose of deceiving Judge Garaufis and the Second Circuit panel of Judges Calabresi, Straub, and Wesley. The appellant will present this mens rea argument to Judge Garaufis when he files his Motion seeking a pre-clearance order to file the putative FOIA complaint that seeks the release of the mosaic of documents not released pursuant to the July 27, 2010 FOIA requests and application of AG Holder’s March 19, 2009 FOIA Guidelines. After Judge Garaufis applies the Dinler standard and reads in camera the July 27, 2010 FOIA requested “FISC Robert” documents withheld pursuant the “Glomar Response” defense, he will be able to determine whether DOJ attorneys are committing a 2010 fraud upon the court in Robert VIII v DOJ, HHS, and SSA.
In Robert VII v DOJ, the panel of Judges Calabresi, Straub, and Wesley, issued an April 11, 2006 Summary Order affirming Judge Garaufis’ March 1, 2005 Order dismissing the FOIA for lack of subject matter jurisdiction. The panel ordered that the decision not be published in the Federal Reporter, but could be cited for collateral estoppel and res judicata purposes:
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
65 The April 11, 2006Robert VII v DOJ decision was rendered after the panel read the parties letter-Briefs requested by the Court to address the issue of whether the FISA “aggrieved person” provision, 50 U.S.C. § 1806 (f), applied to Robert’s FOIA action. On April 3, 2006, AUSA Mahoney filed AG Gonzales’ letter-Brief and asserted that Robert was not an “aggrieved person” as defined by the statute. http://www.snowflake5391.net/RobertvDOJbrief.pdf.
Upon information and belief, AUSA Mahoney’s letter-Brief was reviewed by AAG of the Civil Division Keisler and AAG of the National Security Division Wainstein, who had been the August 2001 to July 2002 EOUSA Director, July 2002 to March 2003 FBI General Counsel, and March 2003 to May 2004 FBI Chief of Staff. They both knew that OIPR Attorney Baker rendered his March 1, 2004 decision to use FOIA Exemption 1 and the “Glomar Response” defenses with the knowledge that AG Meese’s FISC petition did not inform the FISC that a DIA-CIA-FBI counterintelligence “plumber” unit had secured information from the “do not exist” NSA TSP data banks. They both knew that the FISC petition contained the false fact that the FBI had evidence that Robert was a terrorist or agent of a foreign power. They both knew whether USG attorneys had withheld facts in “c (3) exclusion” Declarations with Judge Garaufis that explained the need to use the “Glomar Response” defense. §§ E, F, K, CC, AAA.
AAG of the Civil Division Keisler knew the name of the “client” who instructed him to withdraw the original Robert VII v DOJ Declaration filed by OIPR Attorney Baker. On March 1, 2004 after OIPR Baker read the “FISC Robert” documents and affirmed the use of the “Glomar Response” defense, he knew that AG Meese informed the FISC that the “primary purpose” for the use of the FISC Robert surveillance courts was the false fact that the FBI had evidence that Robert was a terrorist or an agent of a foreign power. He knew that AG Meese’s Robert petition for the FISC warrants did not inform the FISC of the existence of the “do not exist” warrantless NSA TSP from which the DIA-CIA-FBI counterintelligence “plumber” unit had secured information used in the “Fraud Against the Government” investigation of Robert that was initiated by HHS General Counsel del Real, as a covered agent. AG Holder can confirm these facts by reading the Robert VII v DOJ case file notes, e-mails, and simply asking 2010 Associate Deputy Attorney General Baker. http://www.snowflake5391.net/baker.pdf. §§ E, H.
After AG Holder reads AAG of the Civil Division Keisler’s 2004 Robert VII v DOJ case file notes and e-mails, he will learn of communications with DOD General Counsel William J. Haynes (2001-2008) and Undersecretary of Defense for Intelligence Stephen Cambone (2003- 2007) re the importance of implementing the “Barrett nonacquiescence policy” and withholding facts from Judge Garaufis that would reveal the existence of the Top Secret “do not exist” pre- 9/11 1984-2001 NSA TSP. In 2004, President Bush did not report to the FISC or the “Gang of Eight” the existence of the post-9/11 2002-2005 NSA PSP or the DOD TALON program. AG Holder can learn from DOD Secretary Gates and Under Secretary of Defense for Intelligence Lt. General James R. Clapper, Jr. why in 2007 they dismantled DOD Secretary Rumsfeld’s TALON Program that President Bush had not informed the Intelligence Committees was being implemented by DOD military officers for law enforcement purposes notwithstanding the PCA limitations. Upon information and belief, after reading the Robert VII v DOJ “FISC Robert” documents, the case file notes and e-mail, AG Holder will know that AUSA Mahoney’s April 3, 2006 letter-Brief withheld material facts that proved Robert was a TALON “aggrieved person” by application of 50 U.S.C. §1806 (f). §§ E-H, V, W, CC, DD, QQ.
66 AG Holder’s 2010 determination whether the “Barrett nonacquiescence policy” was implemented in the drafting of OIPR Baker’s Robert VII v DOJ October 1, 2004 “corrected” Declaration, has 2010 time line importance because of the March 10, 2004 confrontation of WH Counsel Gonzales with AG Ashcroft in the AG’s hospital room re authorization of the NSA PSP in the presence of DAG Comey and FBI Director Mueller. In calendar year 2004 President Bush had not fulfilled his U.S.C. § 413(a) reporting duty as to 2002-2004 NSA PSP. President Bush’s § 413 notification did not happen until DOJ AAG of the Office of Legislative Affairs William Moschella wrote his December 22, 2005 letter to the “Gang of Eight” retroactively notifying the “Gang of Eight” of the “do not exist” post-9/11 2002-2004 NSA PSP and military access to the domestic data banks http://www.fas.org/irp/agency/doj/fisa/doj122205.pdf. § CC.
In his December 22, 2005 letter, AAG Moschella did not inform the “Gang of Eight” of the existence of the “do not exist” pre-9/11 1984-2001 NSA TSP data banks which morphed into the “do not exist” 2002-2005 “immaculate construction” NSA TSP which were funded with the off-OMB Budget funds, and not classified OMB Budget funds. AAG Moschella explained that the post-9/11 NSA PSP remained classified and unauthorized classified disclosure would be a crime that would include the Espionage Act, 18 U.S.C. 798, Disclosure of classified information:
The President stated that these activities are “crucial to our national security.” The President further explained that “the unauthorized disclosure of this effort damages or national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country.” These critical national security activities remain classified. All United States laws and policies governing the protection and nondisclosure of national security information, including the information relating to the activities described by the President, remain in full force and effect. The unauthorized disclosure of classified information violates federal criminal law. The Government may provide further classified briefings to the Congress on these activities in an appropriate manner. Any such briefings will be conducted in a manner that will not endanger national security. Id. 1-2. Emphasis Added. http://www.fas.org/irp/agency/doj/fisa/doj122205.pdf.
AG Holder will learn from reading AAG of the Civil Division Kiesler’s Robert VII v DOJ case file notes and e-mail whether WH Counsel Gonzales, AAG of the Civil Division Keisler, FBI Chief of Staff Wainstein, FBI General Counsel Caproni, and OIPR attorney Baker knew in 2004 of the existence of the pre-9/11 NSA TSP that DAG Comey and FBI Director Mueller did not know existed on March 10, 2004. If so, then these are 2004 time line documents that are cumulative evidence that the 2004 DOJ and FBI “stovepipes” continued to exist in 2006 when AUSA Mahoney filed AG Gonzales’ April 3, 2006 letter-Brief asserting that Robert was not an “aggrieved person” notwithstanding the content of the “FISC Robert” documents and the Robert VII v DOJ case file notes and e-mails. “Doubts about Mr. Gonzales’s version of events in March 2004 grew after James B. Comey, the former deputy attorney general, testified in May that he and other Justice Department officials were prepared to resign over legal objections to an intelligence program that appeared to be the N.S.A. program.” Johnston and Shane, F.B.I. Chief Gives Account at Odds With Gonzales’s, NY Times, 7-27-09.
67 Hence, the importance of Robert’s September, 2010 request for a §1.5 MDR declassification decision as to the Robert VII v DOJ documents withheld pursuant to FOIA Exemption 1 and the “Glomar Response” defense and the sealed Robert v Holz documents. If those documents are declassified, then U.S. Attorney Lynch will not have to fear breaching the Espionage Act when she complies with her April 1, 2009 Professional Responsibility Model Rules Rule 3.3 duty to cure misrepresentations of fact and law made to Judge Garaufis and the Second Circuit in Robert VII v DOJ. U.S. Attorney Lynch can read the Robert VII v DOJ and Robert v Holz classified documents along with the 1999-2001 Robert v National Archives and 1999-2001 Robert v DOJ documents, case file notes and e-mails when she was the EDNY U.S. Attorney supervising AUSA Mahoney, and make her own 2010 determination whether Robert was an “aggrieved person” in 1985, 2004, 2006, and now in 2010. §§ V, W, CC, GG, AAA.
U.S. Attorney Lynch has a K & A duty to read for accuracy all of the Robert VII v DOJ signed pleadings filed by any USG attorney or official. This includes “c (3) exclusion” ex parte Declarations, OIPR Baker’s October 1, 2004 Declaration, and AUSA Mahoney’s April 3, 2006 letter-Brief. If she does not have clearance to read the classified documents, then she should inform AG Holder who can ask directly 2010 FBI General Counsel Caproni and Associate Deputy Attorney General Baker whether they knew the “Barrett nonacquiescence policy” was implemented whereby facts were intentionally withheld from the Judge Garaufis in order to protect the existence of the “do not exist” NSA TSP and the TALON program. §§ E, CC, AAA.
The Second Circuit panel affirmed Judge Garaufis’ summary judgment decision which deferred to OIPR Baker’s use of FOIA Exemption 1 and the “Glomar Response” defenses:
OIPR, on the other hand, declined to furnish the requested documents, or even to indicate whether affidavits for wiretaps on Robert existed, on the grounds that such information fell within FOIA Exemption 1, for information classified pursuant to an Executive Order. See 5 U.S.C. § 552(b)(1). For the reasons given by the district court, we agree that Exemption 1 permits OIPR to refuse to disclose whether it has any documents pertaining to Robert, and to refuse to turn over any such documents that it may, in fact, possess. We are not certain, however, that the district court was correct to characterize this as a jurisdictional issue. In support of its view, the district court relies on language from two Supreme Court cases indicating that courts’ “jurisdiction to devise remedies” for FOIA violations depends on a showing that an agency has (1) improperly (2) withheld (3) agency records. U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989); Kissinger v. Reporters Comm. For A-5 Freedom of the Press, 445 U.S. 136, 150 (1980). As the Supreme Court more recently advised, however, it is unreasonable to read such language as making all the elements of a cause of action jurisdictional. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89-90 (1998).
But to decide this case, we need make no determination as to any jurisdictional question.1 Treating the government’s motion as one for summary judgment (as, in effect, the district court and the parties did), we
68 find that Robert’s claim is without merit.2 Assuming arguendo that the district court did have jurisdiction, we therefore affirm he district court’s judgment. Emphasis added.
U.S. Attorney Lynch should be informing AG Holder in her settlement memo the probable consequences if, pursuant to Dinler, Judge Garaufis reads the “FISC Robert” documents prior to deciding the appellant’s putative 2010 Motion seeking a pre-clearance order to file a FOIA action seeking the de novo FOIA requested Robert VII v DOJ “FISC Robert” documents. AG Holder should know whether the Robert VII v DOJ case file notes and e-mails reveal the 2004 mens rea of AAG of the Civil Division Keisler, OIPR Baker, FBI Chief of Staff Wainstein, FBI General Counsel Caproni, AUSA Mahoney, and DOD General Counsel Haynes. AG Holder should know whether by application of the NYS Judiciary Law § 487 deception of attorneys and parties penal standard, the April 3, 2006 letter-Brief was intended to deceive Circuit Judges Calabresi, Straub, and Wesley and appellant Robert. §§ D-H, CC, XX, AAA.
U.S. Attorney Lynch should also be informing AG Holder whether the Robert VII v DOJ ‘FISC Robert’ documents are connect-the-dots documents with the Robert v Holz case file notes and e-mails and reveal that the Robert wiretapping had violated the June 19, 1985 Mitchell v Forsyth, 472 U.S. 511 (1985), ‘bright line” decision that the AG does not have absolute immunity based on a good faith Article II national security defense. “We conclude that the Attorney General is not absolutely immune from suit for damages arising out of his allegedly unconstitutional conduct in performing his national security functions.” Id. 520. §§ N, CC. U.S. Attorney Lynch should also be informing AG Holder that in September, 2010 Robert will be placing the § 1.7 decision-makers on Notice that they have a duty to apply the Mitchell standard to the facts they learn from reading the FOIA withheld classified connect-the- dots documents in Robert VII v DOJ and Robert v Holz. This is especially case if the ISCAP determines that the 25 year automatic declassification standard applies to 1985 classified documents that reveal that HHS General Counsel del Real was a rogue covered agent when he initiated the “Fraud Against the Government” investigation of Robert seeking Robert’s incarceration in order to end the challenge to his “Jackson nonacquiescence policy” of 1982. The ISCAP will also know whether SSA Commissioner Astrue has been a 1985-2010 rogue covered agent who continues to “rig” the 2010 SSA computer to apply the “Jackson nonacquiescence policy” to deny 2010 Ford v Shalala class members their benefits contrary to his own June 22, 1989 and January 24, 2007 Senate Finance Committee testimony that the “nonacquiecence policy had ended prior to his becoming HHS General Counsel in 1989. §§ A, B, C, D, AAA.
U.S. Attorney Lynch should also be including in her settlement memo, a discussion of the Second Circuit’s August 5, 2009 Doe v CIA dicta regarding “systemic official action”, its November 12, 2009 Wilson v CIA use of a CIA “continued classification” Declaration, and its Wilner v NSA in camera review of “Glomar Response” documents. In this way, AG Holder will understand the Past is Prologue importance of the 1980s Robert VII v DOJ “FISC Robert” documents that reveal how the 1980s DIA-CIA-FBI counterintelligence “plumber” unit used Robert information from the NSA TSP to protect the 1980s “rigging” of the HHS-SSA computers to generate off-OMB Budget funds to pay for the construction and maintenance of the 1984-2001 “do not exist” NSA TSP data banks now accessed by 2010 DOD Cyber Command military officers in possible violation of the FISA and PCA. §§ CC, DD, QQ, TT, UU.
69 U.S. Attorney Lynch should also be including in her settlement memo, a discussion of effect of a § 1.7 (a)(1) misclassification Finding that documents had been misclassified to cover up violations of the National Security Act, the FISA, the PCA and the Social Security Act, on the validity of USG attorneys’ nondisclosure agreements. USG attorneys signed their nondisclosure agreements to protect the DIA-CIA-FBI sources and methods and the identity of HHS General Counsel del Real and his successors as covered agents. Out of fairness to USG attorneys who have an April 1, 2009 NYS Professional Model Rules Rule 3.3 affirmative duty to cure misrepresentations of fact and law made to tribunals, they should know whether they can rely upon their nondisclosure agreements to explain their Rule 3.3 delays and their violations of the NYS Judiciary Law §487 penal standard of deceiving Judges and parties. §§ E, F.
U.S. Attorney Lynch should also be including in her settlement memo, a discussion of effect of a § 1.7 (a)(2) misclassification Finding that documents were misclassified in order to prevent embarrassment to the 1982-2010 daisy-chain of shadow government patriots. These patriots believed that the Unitary Executive theory provided them with a license-to-lie to Congress that the nonacquiescence policy had ended, when they knew that the 1982-2007 HHS- SSA computer had been rigged” to apply the “Jackson nonacquiescence policy” to deny aged, blind, and disabled U.S. citizens benefits that Congress intended that they receive. § R.
U.S. Attorney Lynch should also be including in her settlement memo, a discussion of effect of a § 1.7 (a)(4) misclassification Finding that documents were misclassified to prevent or delay the release of information that “does not require the protection” in the interest of national security. Such a decision would have a direct effect if rendered when Robert VIII v DOJ, HHS, and SSA is pending and the appellant is arguing that AG Holder is implementing the “Barrett nonacquiescence policy” and withholding material facts from the Second Circuit. § D.
If AG Holder rejects the appellant’s offer of a quiet settlement, then on September 3, 2010, the Robert VIII v DOJ, HHS, and SSA appeal will be reinstated. This will result in AG Holder’s chain of command supervising attorneys EOUSA Director Jarrett, AAG of the Civil Division West, Associate AG Perrelli, and Acting DAG Grindler, having their own K & A duty to review AG Holder’s Robert VIII v DOJ, HHS, and SSA Second Circuit Brief. On August 18, 2010, each of them will have been served with this White Paper and placed on Notice that the Robert VII v DOJ and Robert v Holz withheld classified documents corroborate Robert’s almost incredible allegations. Robert will also have placed each of them on Notice of their 28 U.S.C. § 535(b) duty to inform AG Holder that the “OMB Jackson” documents contains smoking gun proof that SSA Commissioner Astrue lied to the Senate Finance Committee. §§ E, F, AAA.
Therefore, U.S. Attorney Lynch should consult directly with DOJ Chief FOIA Officer- Associate AG Perrelli when preparing her Robert VIII v DOJ, HHS, and SSA settlement memo. He is tasked not only with implementing AG Holder’s March 29, 2009 FOIA Guidelines and AG Holder’s April 7, 2010 Open Government Plan, but also supervising AAG of the Civil Division West and EOUSA Director Jarrett who are supervising U.S. Attorney Lynch. He has his own K & A duty to make sure that accurate information is provided to AG Holder when he considers the appellants offer of a quiet settlement given the smoking gun evidence that is contained in the Robert FOIA withheld classified documents that prove true Robert’s almost incredible allegation that there is an ongoing DOJ cover up of violations of laws. §§ B, AAA.
70 N. The request to AAG of the OLP Schroeder that he identify the 2010 “appropriate authorities” who have the authority to make 2010 “Glomar Response” FOIA decisions not subject to the E.O. 13,526 § 1.5 declassification and § 1.7 misclassification review process, and that he apply the well settled 1985 Mitchell v Forsyth wiretapping immunity standard and a 2010 “Glomar Explorer II test” to the “Past is Prologue” FOIA classified decisions
On July 27, 2010, the appellant requested that AAG of the OLP Schroeder identify the “appropriate authorities” who have the authority to make “Glomar Response” FOIA decisions that are not subject to the E.O. 13,526 § 1.5 declassification and §1.7 misclassification review process. The appellant suggested that he apply the well settled 1985 Mitchell v Forsyth, 472 U.S. 511 (1985), wiretapping immunity standard and a 2010 “Glomar Explorer II test” to the “Past is Prologue” FOIA classified decisions not subject to the § 1.5 and § 1.7 review process. Then AAG of the OLP Schroeder will learn whether this is a fatal flaw in E.O. 13,526 which President Obama has an Article II “take Care” duty to cure in 2010. §§ L, M, O, Z, CC, DD.
On June 19, 1985, the Supreme Court rendered its Mitchell v Forsyth, 472 U.S. 511 (1985), decision and rejected the “absolute immunity” argument of AG Meese taken on behalf of former-AG Mitchell. The Supreme Court was crystal clear in establishing a law standard that the AG did not have an “absolute immunity” defense if there was a damages claim that the AG conducted an illegal domestic surveillance wiretap, notwithstanding his good faith belief that this was necessary for the President to fulfill his Article II duty to protect the national security. The appellant argues that AG Holder has a stare decisis duty to follow this 1985 decision in 2010. Justice White wrote the ‘bright line” majority opinion that is the well-settled law that the AGs have had an Article II duty to follow from 1985-2010. The AG does not have absolute immunity to conduct good faith warrantless wiretapping to protect the national security: We conclude that the Attorney General is not absolutely immune from suit for damages arising out of his allegedly unconstitutional conduct in performing his national security functions. As the Nation’s chief law enforcement officer, the Attorney General provides vital assistance to the President in his performance of the latter’s constitutional duty to “preserve, protect, and defend the Constitution of the United States.” U.S. Const. Art. II, 1, cl. 8. Mitchell’s argument, in essence, is that the national security functions of the Attorney General are so sensitive, so vital to the protection of our Nation’s well-being, that we cannot tolerate any risk that in performing those functions he will be chilled by the possibility of personal liability for acts that may be found to impinge on the constitutional rights of citizens. Such arguments, “when urged on behalf of the President and the national security in its domestic implications, merit the most careful consideration.” Keith, 407 U.S., at 219. Nonetheless, we do not believe that the considerations that have led us to recognize absolute immunities for other officials dictate the same result in this case. Id. at 520. Emphasis Added. Justice White explained why the absolute immunity defense provided judges and prosecutors does not apply to the AG’s secret national security duties:
71 National security tasks, by contrast, are carried out in secret; open conflict and overt winners and losers are rare. Under such circumstances, it is far more likely that actual abuses will go uncovered than that fancied abuses will rise to unfounded and burdensome litigation. Whereas the mere threat of litigation may significantly affect the fearless and independent performance of duty by actors in the judicial process, it is unlikely to have a similar effect on the Attorney General’s performance of his national security tasks. Id. at 522. Justice White explained the 1985 danger to the Constitution if there are no restraints on the Attorney General’s good faith zeal to protect the national security: Similar built-in restraints on the Attorney General’s activities in the name of national security, however, do not exist. And despite our recognition of the importance of those activities to the safety of our Nation and its democratic system of government, we cannot accept the notion that restraints are completely unnecessary. As the Court observed in Keith, the label of “national security” may cover a multitude of sins: National security cases…. often reflect a convergence of First and Fourth Amendment values not present in cases of ‘ordinary’ crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech…. History abundantly documents the tendency of Government- however, benevolent and benign in its motives – to view with suspicion those who most fervently dispute its policies….The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security,’ Given the difficult of defining domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.” 407 U.S., at 313-314. The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity. Id. at 523. Justice White emphasized that the AG was not legally defenseless, as the AG can use a qualified immunity defense that his national security decision was appropriate whereby that determination would be subject to judicial review: We emphasis that the denial of absolute immunity will not leave the Attorney General at the mercy of litigants with frivolous and vexatious complaints. Under the standard of qualified immunity articulated in Harlow v Fitzgerald, the Attorney General will be entitled to immunity so long as his actions do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” 457 U.S. at 818. This standard will not allow the Attorney General to carry out his national security functions wholly free from concern for his personal liability; he may on occasion have to pause to consider
72 whether a proposed course of action can be squared with the Constitution and laws of the United States. But this is precisely the position of the Harlow standard: “Where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate….” Id. at 819 (emphasis added). This is as true in matters of national security as in other fields of governmental action. We do not believe that the security of the Republic will be threatened if it Attorney General is given incentives to abide by clearly established law. Id. 524. Emphasis Added. The appellant’s July 27, 2010 de novo FOIA request for the Robert VII v DOJ “FISC Robert” documents withheld pursuant to FOIA Exemption 1 and the “Glomar Response” defense, is grounded on the well-settled Mitchell v Forsyth decision. If AG Holder intends to use a qualified immunity defense in Robert’s putative Bivens complaint alleging violations of his First Amendment right of Access to the Courts and the “exclusivity provision” of the FISA, then these FOIA requested documents are needed for Robert to survive AG Holder’s putative “Iqbal” Motion to dismiss because the appellant has not made “plausible” allegations. § AAA. The Supreme Court’s June 21, 2010 Holder v. Humanitarian Law Project, __ S. Ct. __, First Amendment decision, bolsters the need for there to be an internal Article II review of “Glomar Response” decisions. The Court determined that the statute which prohibited humanitarian funding of terrorist identified organization did not violate the First Amendment.
However, the Supreme Court made clear that Article III Judges have the Constitutional authority to review Article II national security decisions to protect citizen’s Constitutional rights. Chief Justice Roberts explained that First Amendment rights can be protected at the same time that the Judiciary defers to Article II national security expertise:
Our precedents, old and new, make clear that concerns of national security and foreign relations do not warrant abdication of the judicial role. We do not defer to the Government’s reading of the First amendment, even when such interests are at stake. We are one with the dissent that the Government’s “authority and expertise in these matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals.” Post, at 23. But when it comes to collecting evidence and drawing factual inferences in this area, “the lack of competence on the part of the courts is marked, Rostker, supra, at 65, and respect for the Government’s conclusions is appropriate. Id. slip opinion 29.
Chief Justice Roberts highlighted the fact that the Congress and the Executive Branches had applied their Article I and Article II expertise in enacting and implementing the statute that both branches determined was necessary to protect the national security:
In this litigation, by contrast, Congress and the Executive are uniquely positioned to make principled distinctions between activities that will further terrorist conduct and undermine United States foreign policy, and those that will not. Id. slip op. 30. Emphasis Added.
73 The appellant will distinguish Holder v. Humanitarian Law Project by arguing in the appeal of any 2010 FOIA “Glomar Response” defense that Congress intended that the FISA was the exclusive statute that provided the pathway for the Executive Branch to wiretap U.S. citizens telephones. The AG is to petition the FISC for wiretap authority based on the determination of the AG and the FBI Director that there was evidence that the U.S. citizen was a terrorist or an agent of a foreign power. He will argue that in 2010 there are no Article II internal review process of “Glomar Response” decisions that are made pursuant to the “c (3) exclusion” defense established in the 1986 FOIA Amendment, 5 U.S.C. 552(c)(3). He will argue that the “appropriate authorities” have determined that AG Meese’s December, 1987 Attorney General’s Memorandum on the 1986 Amendments to the Freedom of Information Act, continues in 2010 to be the DOJ “c (3) exclusion” FOIA policy and AG Meese provided for no procedure that allows for a review of the “appropriate authorities” decision to use the “Glomar Response” defense in FOIA litigation. http://www.usdoj.gov/04foia/86agmemo.htm. §§ V, W, Y, GG.
As a result, the 2010 “appropriate authorities” have been making their unreviewable “Glomar Response” decisions based on their interpretation of the Unitary Executive theory. AAG of the OLP Schroeder will learn this fact when he reads the Robert VII v DOJ documents, case file notes, and e-mails. He will learn that the “Glomar Response” decision was made to shield the breach of the “unconstitutional” FISA “exclusivity provision” that “appropriate authorities” had determined encroached upon the President’s unlimited Article II duty to wiretap to protect the nation from terrorists. The extreme Article II Unitary Executive theory was explained in the November 18, 1987 Report of the Congressional Committees Investigating the Iran-Contra Affair, Minority View of Congressman Cheney researched by his staff member Addington.http://www.presidency.ucsb.edu/PS157/assignment%20files%20public/congressional %20report%20key%20sections.htm. §§ K, J, V, CC, DD.
This is a timely request because the 2010 DIA-CIA-FBI counterintelligence “plumber” unit continues to be tasked with enforcing nondisclosure agreements re the existence of the 1980s “do not exist” NSA TSP and the off-OMB Budget funding source for the pre-9/11 1984- 2010 NSA TSP, the post-9/11 2002-2005 “immaculate construction,” and 2006-2010 NSA PSP data banks. AAG of the OLC Schroeder will learn that this has resulted in President Obama not knowing that 2010 off-OMB Budget “Jackson nonacquiescence policy” funds continue to pay for the 2010 DOD Cyber Command “do not exist” 1984-2010 NSA TSP and PSP data banks. This is because the 2009-2010 “appropriate authorities” are members of the 2010 daisy-chain of shadow government patriots who have made 2009-2010 “Glomar Response” decisions without the knowledge of the DNI Director or President Obama. §§ C, J, U, Z, CC, DD.
The appellant suggested that AAG of the OLP Schroeder apply a 2010 “Glomar Explorer II test” to three documents when applying the E.O. 13,256 § 3.6 “Glomar Response” standard. He should review “appropriate authorities” application of the “Glomar Response” to the 1) 1980s Robert VII v DOJ “FISC Robert” documents, 2) the 1995 Robert III v DOJ “Recarey extradition” documents, and 3) the 1982-2009 “OMB Jackson” documents. Then he can apply the 2010 “Glomar Explorer II test” to the same sets of documents subject to the July 27, 2010 de novo FOIA decisions and requests for §1.5 declassification and §1.7 misclassification decisions. By applying the “Glomar Explorer II test” in August, 2010, AAG of the OLP Schroeder may recommend that AG Holder accept the appellant’s quiet settlement offer. § AAA.
74 On February 12, 2010, the CIA declassified Top Secret 1985 CIA “Glomar Explorer” documents. The 1974 FOIA request for the “Glomar Explorer” documents led to the “do not admit or deny” FOIA defense commonly called the “Glomar Response” defense as explained in Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976). The Glomar Explorer was a Howard Hughes salvage ship that had the capability of salvaging a sunken Russian nuclear submarine that was so deep within the ocean that it was thought not to be recoverable. See the National Security Archive Update, February 12, 2010: Project Azorian: The CIA's Declassified History of the Glomar Explorer. http://www.gwu.edu/~nsarchiv/nukevault/ebb305/index.htm
AAG of the OLP Schroeder’s use of a 2010 “Glomar Explorer II test” to review the “appropriate authorities” use of the Glomar Response, is a timely metaphor. If the DOD had developed a “do not exist” Top Secret “Glomar Explorer II” submarine that had the capability of stopping the mile deep water Gulf of Mexico oil leak, would the “appropriate authorities” decide not to use the “Glomar Explorer II” to stop the leak because this would result in the end the DOD’s “does not exist” Top Secret? Would AAG of the OLP Schroeder recommend that President Obama reverse any “appropriate authorities” decision made pursuant to the extreme Unitary Executive theory that the national security is best protected by keeping the “Glomar Explorer II” submarine a Top Secret notwithstanding the ongoing damage to the environment?
By changing the metaphor to the Top Secret “do not exist” NSA TSP data banks, AAG of the OLP Schroeder has been asked to apply the “Glomar Explorer II test” to the “appropriate authorities” decisions as to the use of the “Glomar Response” to the mosaic of connect-the-dots documents that reveal the existence of the DOD Cyber Command 1984-2010 NSA TSP and PSP data banks that have been accessed by military officers notwithstanding the long settled Mitchell decision. These “appropriate authorities” know the 2010 access by the military officers is a 2010 violation of the FISA “exclusivity provision” and the PCA limitations on domestic military law enforcement operations. They know that their 2010 “Glomar Response” decisions have to be made without the knowledge of President Obama. They know that if President Obama knew of the FISA and PSC violations and did not fulfill his 50 U.S.C. § 413(b) duty to report to Congress this illegal intelligence activity with a “corrective action” plan, then these would be impeachable offenses. “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.” §§ K, Z, CC.
AAG of the OLP Schroeder will learn that there is a lurking impeachment issue if President Obama intentionally does not fulfill his Article II “take Care” duty and comply with § 413(b) of the National Security Act, the FISA, the PCA and the Social Security Act. Therefore, the appellant placed him on Notice of the 1984-2010 daisy-chain of shadow government patriots who have been making classified decisions regarding the diversion of off-OMB Budget “Jackson nonacquiescence policy” funds to pay for the illegal construction and maintenance of the “do not exist” 1984-2001 pre-9/11 NSA TSP, the 2002-2005 post-9/11 “immaculate construction” NSA PSP, and the 2006-2010 NSA TSP data banks without the knowledge of Presidents Reagan, Bush, Clinton, Bush, and Obama. He will learn whether the 2010 “appropriate authorities” are “Unitary Executive” patriots who believe that they have the Article II authority to make national security decisions without the knowledge of President Obama if they deem that this is necessary to protect the nation from terrorists. §§ K, M, Y, Z, CC, DD.
75 AAG of the OLP Schroeder has the legal background to apply this “Glomar Explorer II test” to Robert “Glomar Response” documents. He was a Duke Law Professor who taught Constitutional, Administrative Law, and Civil Liberties and National Security classes. He was 1992-1993 Chief Counsel for the Senate Judiciary Committee. He was AG Reno’s 1993-1994 Counselor and Acting AAG of the OLC and 1995-1997 Deputy Associate Attorney General. From December 1998 until March 1999, he served as Impeachment Trial Counsel for Senate Judiciary Committee Chairman Biden. Thus, he understands separation of powers issues and knows which 2010 federal law violations constitute 2010 impeachable offenses. §§ A, ZZ.
Upon information and belief, in 1995 on behalf of 1994-1997 Associate AG John Schmidt, he reviewed WH Counsel Abner Mikva’s January 17, 1995 referral of Robert’s request for a WH review of the Jackson and Ruppert “nonacquiescence” policies being defended in Gordon v Shalala. If so, then he knows Associate WH Counsel Astrue’s June 22, 1989 Senate Finance Committee testimony that the “nonacquiescence” policy had ended, was false. § T.
As per the DOJ website, AAG of the OLP Schroeder is the “primary policy advisor” to the AG and the DAG re “legal policy” questions:
The Office of Legal Policy (OLP) is responsible for developing policy initiatives of high priority to the Department and the Administration. The Assistant Attorney General for the Office of Legal Policy serves as the primary policy advisor to the Attorney General and the Deputy Attorney General. As the Department’s think tank, OLP provides a space distinct from the Department’s day-to-day work for long-term planning that anticipates and helps to shape the terms of national debate on a wide range of forthcoming legal policy questions.
OLP also performs a high-level coordination role within the Department. OLP often handles special projects that implicate the interests of multiple Department components, and it coordinates the regulatory development and review of all proposed and final rules developed by the Department. Further, OLP advises and assists the President and the Attorney General in the selection and confirmation of federal judges. It oversees the Department's process for vetting, interviewing, evaluating and seeking confirmation of the nation's judiciary, in close consultation with the White House Counsel. http://www.justice.gov/olp/
The “appropriate authorities” issue of who has the authority to make “Glomar Response” decisions on behalf of the President, was a lurking issue in Acting AAG of the OLC Schroeder’s November 26, 1996 Access to Classified Information opinion that he wrote for CIA General Counsel Jeffery Smith (who knew whether Associate AG Schmidt knew that military officers’ access to “do not exist” 1984-1996 NSA TSP data banks was a Top Secret). The OLC opinion involved the access of a Department of State official who signed a nondisclosure agreement as a condition for reading Sensitive Compartmented Information (SCI). The official was a putative “whistleblower” who provided SCI information to a Congressional Oversight Committee. CIA General Counsel Smith sought an OLC opinion to clarify whether Congress intended that a State Department official has statutory non-retaliation “whistleblower” protection.
76 Acting AAG of the OLC Schroeder’s November 26, 1996 OLC opinion was based on Solicitor General Charles Fried’s Brief in American Foreign Serv. Ass’n v Garfinkel, 488 U.S. 923 (1988), in which he explained the authority of the President to control the release of classified information by any USG employee:
The Department’s AFSE Brief stated our view that a congressional enactment would be unconstitutional if it were interpreted to “divest the President of his control over national security information by vesting lower-ranking personnel in that Branch with a ‘right’ to furnish such information to a Member of Congress without receiving official authorization to do so.” Id. at 48. see also id. at 16-17. This position is a based on the following separation of powers rationale:
(T)he President’s roles as Commander in Chief, head of the Executive Branch, and sole organ of the Nation in its external relations require that he have ultimate and unimpeded authority over the collection, retention and dissemination of intelligence and other national security information in the Executive Branch. There is no exception to the principle for those disseminations that would be made to Congress or its Members. In that context, as in all others, the decision whether to grant access to the information must be made by someone who is acting in an official capacity on behalf of the President who is ultimately responsible, perhaps through intermediaries, to the President. The Constitution does not permit Congress to circumvent these orderly procedures and chain of command – to erect an obstacle to the President’s exercise of all executive powers relating to the Nation’s security—by vesting lower-level employees in the Executive Branch with a supposed “right” to disclose national security information to Members of Congress (or anyone else) without the authorization of Executive Branch personnel how derive their authority from the President. Id. 2. Emphasis Added. http://www.justice.gov/olc/nuccio.op.htm
AAG of the OLC Schroeder applied President Reagan’s April 2, 1982 E.O.12,356 two- part “trustworthiness and ‘need to know’ test” to his analysis notwithstanding the fact that E.O. 12,356 had been revoked by President Clinton in his April 17, 1995 E.O. 12,958:
The first pertinent part of that framework is Executive Order 12,356’s two- part requirement of trustworthiness and “need to know”:
Executive Order No. 12,356 provides that access must be limited as a general matter to those individuals who have been determined to be trustworthy, and that access to any particular item of information may be granted only where it “is essential to the accomplishment of lawful and authorized Government purposes” (§ 4.1(a))—i.e., where the individual has a “need to know” that information. Id. 3. Emphasis Added.
77 AAG of the OLC Schroeder concluded that the “trustworthiness and ‘need to know’ test” was adopted by President Clinton’s E.O.12,958 and applied in 1996 to the “established decisionmaking channels at each agency” as to the release of classified information. President Clinton’s “trusted” officials, not a USG “whistleblower” employee, makes the decision “through established decision making channels” whether to disclosure of classified information:
Thus, the longstanding practice under Executive Order 12356 (and its successor) has been that the “need to know” determination for disclosures of classified information to Congress is made through established decisionmaking channels at each agency. We believe that it would be antithetical to the existing system for an agency to permit individual employees to decide unilaterally to disclose classified information to a Member of Congress – and we are unaware of any agency that does so. Id. 4. Emphasis Added.
AAG of the OLC Schroeder also discussed the fact that “appropriate authorities” was not defined in President George H.W. Bush’s E.O. 12,674, Principles of Ethical Conduct for Government officers and Employees that “(e)mployees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.” He concluded “appropriate authorities” were as established in E.O. 12,356 because that E.O. specifically addressed classified information:
We do not question that in certain circumstances that term could include a member of a congressional oversight committee. However, we believe that the question of who is an “appropriate authority” to receive classified information is governed by Executive Order 12356 and the related directives and practices. Put another way, there should be no conflict in these circumstances between the ethical conduct executive order and the classified information executive order. The latter executive order should control because it more directly and specifically addresses that subject at issue, the disclosure of classified information. Id. 5. Emphasis added.
The appellant requested that AAG of the OLP Schroeder apply the “trustworthiness and ‘need to know’ test” to the 2010 “appropriate authorities” who are making “Glomar Response” derivative decisions on behalf of President Obama without the knowledge of President Obama. The appellant is gravely alleging that these fifth column 2009-2010 USG disciples of the extreme Unitary Executive theory of VP Cheney’s Counsel-Chief of staff Addington, have flunked the “trustworthiness” test. The daisy-chain of shadow government patriots have lied- by-omission to President Obama because they have known that if President Obama knew SSA Commissioner Astrue “rigged” the 2010 SSA computer to divert off-OMB Budget funds to pay for NSA TSP data banks, then he would end the “Jackson nonacquiescence policy.” § K. As per the July 27, 2010 de novo request for the release of the Robert VII v DOJ “FISC Robert” documents withheld by OIRP Attorney Baker based on the “Glomar Response” defense, the 2010 “appropriate authorities” will decide whether the “Glomar Response” defense is again to be used in August, 2010 knowing that Robert will request an E.O. 13,256 § 1.5 declassification and § 1.7 misclassification decisions that will be subject to ISCAP review. AAG of the OLP Schroeder should apply the “Glomar Explorer II test” to these same documents. § M.
78 As per the July 27, 2010 de novo request for the release of the Robert III v DOJ “Recarey extradition” documents withheld by the FBI’s FOIA Officer’s use of the “Glomar Response” defense, the 2010 “appropriate authorities” will decide whether the “Glomar Response” defense is to be used in August, 2010 knowing that Robert will request an E.O. 13,256 § 1.5 declassification and § 1.7 misclassification decisions subject to ISCAP review. Therefore, AAG of the OLP Schroeder should apply the “Glomar Explorer II test” to these same documents. § Y.
As per the July 27, 2010 de novo request for the release of the 2008-2009 “OMB Jackson” documents withheld by OMB FOIA Officer Hardy’s use of the “Glomar Response” defense, the 2010 “appropriate authorities” will decide whether the “Glomar Response” defense is to be used in August, 2010 knowing that Robert will request § 1.5 declassification and § 1.7 misclassification decisions that will be subject to ISCAP review. Therefore, AAG of the OLP Schroeder should apply the “Glomar Explorer II test” to these same documents. § Z.
The 2010 “appropriate authorities” will be applying its interpretation of President Obama’s E.O. 13,256 which has a § 3.6 “Glomar Response” grandfather clause:
a) An agency may refuse to confirm or deny the existence or nonexistence of requested records whenever the fact of their existence or nonexistence is itself classified under this order or its predecessors. (b) When an agency receives any request for documents in its custody that contain classified information that originated with other agencies or the disclosure of which would affect the interests or activities of other agencies with respect to the classified information, or identifies such documents in the process of implementing sections 3.3 or 3.4 of this order, it shall refer copies of any request and the pertinent documents to the originating agency for processing and may, after consultation with the originating agency, inform any requester of the referral unless such association is itself classified under this order or its predecessors. In cases in which the originating agency determines in writing that a response under paragraph (a) of this section is required, the referring agency shall respond to the requester in accordance with that paragraph. Emphasis Added.
Thus, the 2010 “appropriate authorities” and the original classifying agencies will be making de novo decisions whether to apply the “Glomar Response” defense. This will mean that FBI General Counsel Caproni, DOD General Counsel Johnson, CIA General Counsel Preston, and OMRDD General Counsel Bansal will be reviewing the “derivative classification” decisions of their agencies as to the connect-the-dots “FISC Robert”, “FBI Abhsire”. “Recarey extradition”, and “OMB Jackson” documents, subject to a Dinler in camera review. § XX. Because the appellant will seek an Article III Dinler in camera review of the “Glomar Response” documents, AAG of the OLP Schroeder, FBI General Counsel Caproni, DOD General Counsel Johnson, CIA General Counsel Preston, and OMRDD General Counsel Bansal should all be reading for accuracy any “c (3) exclusion” ex parte Declarations filed with the Article III Judges. If they learn that any of the “c (3) exclusion” ex parte Declarations contain misrepresentations of fact and law, then EDNY U.S. Attorney Lynch, on behalf of the USG
79 attorneys, will have a 2010 NYS Professional Model Rules Rule 3.3 duty to cure the misrepresentations of fact and law made to the Article III Judges. §§ E, F, G, H, M, AAA.
The USG attorneys who filed “c (3) exclusion” ex parte Declarations in Robert III v DOJ and Robert VII v DOJ were to follow AG Meese’s December, 1987 Guidelines Attorney General’s Memorandum on the 1986 Amendments to the Freedom of Information Act. They were to suggest that the Article III Judges “mask” the decisions to deceive the plaintiffs:
Accordingly, it shall be the government’s standard litigation policy in the defense of FOIA lawsuits that wherever a FOIA plaintiff raises a distinct claim regarding the suspected use of an exclusion, the government routinely will submit an in camera declaration addressing that claim, one way or another. Where an exclusion was in fact employed, the correctness of that action will be justified to the court. Where an exclusion was not in fact employed, the in camera declaration will simply state that fact, together with an explanation to the judge of why the very act of its submission and consideration by the court was necessary to mask whether that is or is not the case. In either case, the government will of course urge the court to issue a public decision which does not indicate whether it is or is not an actual exclusion situation. Such a public decision, not unlike and administrative appeal determination of an exclusion-related request for review, should specify only that a full review of the claim was undertaken and that, if an exclusion in fact was employed, it was and continues to remain, amply justified. Id. at 20. Emphasis Added.
If the Article III Judges followed the USG attorneys’ suggestion that they “mask” their decision in order to deceive Robert, then this resulted in the Article II attorneys securing the assistance of the Article III Judges to implement their strategy to deceive the party plaintiff and breach the NYS Judiciary Law § 487 penal prohibition of the deception of parties. Hence, the importance of AAG of the OLP Schroeder reading the documents withheld pursuant to the “Glomar Response” decisions, the USG “c (3) exclusion” ex parte Declarations, the Robert III v DOJ and the Robert VII v DOJ case file notes, and e-mails to determine whether the USG attorneys intended that the Article III Judges deceive party plaintiff Robert in Robert III v DOJ and Robert VII v DOJ, and thereby violated NYS Judiciary law § 487. §§ E, F, G, H, M, AAA.
If AG Holder decides to acquiesce to the Second Circuit’s Dinler in camera review standard, then AAG of the OLP Schroeder will apprehend the need to revise the December, 1987 Attorney General’s Memorandum on the 1986 Amendments to the Freedom of Information Act. AG Holder should provide USG attorneys guidance in order not to place them at risk of committing a fraud upon the court or committing crimes by deceiving plaintiffs. §§ F,G, AAA. Hence, this August, 2010 opportunity to apply the “Glomar Explorer II test” to the de novo request for the three sets of documents that were withheld pursuant to the use of the “Glomar Response” defense. If the “appropriate authorities” apply President Obama’s E.O. 13, 256 § 3.6 “Glomar Response” grandfather clause, then AAG of the OLP Schroeder should know the names of the “appropriate authorities” and the name of their “Commander in Chief” who determined that the national security would be risk if FOIA Exemption 1 or 3 was used
80 without the “Glomar Response” defense. Then AAG of the OLP Schroeder will know whether their “Commander in Chief” is not President Obama. He will know whether the “appropriate authorities” patriots have lied-by-omission to President Obama, as did the attorney-patriots lied- by-omission to President Reagan, in order to provide President Obama with a plausible deniability defense to the 2010 violations of the National Security Act, the PCA, the FISA and Social Security Act that AAG of the OLP Schroeder knows are impeachable offenses. §§ K, Y.
The appellant suggested that AAG of the OLP Schroeder should fulfill his OLP Mission by re-reading Michell v Forsyth, and determining whether the Robert VII v DOJ “FISC Robert” documents reveal whether AG Meese had any immunity defense to filing the 1980s Robert FISC petition certifying that the “sole purpose” of the seeking the Robert FISC surveillance warrants was because there was evidence that Robert was a terrorist or an agent of a foreign power. He can consult with Associate Deputy Attorney General Baker for Past is Prologue facts as to the content of the Robert VII v DOJ case file notes and e-mail, the accuracy of EDNY AUSA Mahoney’s April 3, 2006 Second Circuit letter-brief on the Robert 50 U.S.C. § 1806 (f) standing issue, and the “SG Clement-Robert VII v DOJ” documents that reveal why SG Clement did not file a Brief in opposition to the petition for a writ of certiorari. §§ E, M, AAA.
The appellant suggested that AAG of the OLP Schroeder should fulfill his OLP Mission by also reading the Robert III v DOJ “Recarey extradition” documents, case file notes, and e- mails along with the Robert v National Archives “FBI Agent Allison” documents, case file notes, and e-mails to determine if accurate information was provided to Judge Gershon in the “c (3) exclusion” ex parte Declaration filed on behalf of FBI Director Mueller. He can consult with AAG of the Criminal Division Breuer and DAAG of the Civil Division Hertz for Past is Prologue facts re “Recarey extradition” documents, the joint FBI-DOJ-HHS task force “IMC Investigation Final Report” document, and Robert III v DOJ case file notes and e-mails given the content of the “FBI Abshire” and July 27, 2010 de novo FOIA requested Robert v National Archives ‘Bulky evidence file’” and “FBI Agent Allison” documents §§ E, F, Y, BB, II, AAA.
On August 18, 2010, the “Glomar Explorer II test” second phase will be conducted. The appellant will serve this White Paper on the AG Holder’s 15 “chain of command” attorneys He will suggest that they contact AAG of the OLP Schroeder to learn 2010 DOJ policies. § I.
Hence, this opportunity for AAG of the OLP Schroeder to use the Mitchell v Forsyth wiretapping immunity holding and the “Glomar Explorer II test” to review the “appropriate authorities” August, 2010 decisions whether to use the “Glomar Response” defenses. These three sets of “Glomar Response” connect-the-dots documents reveal whether President Obama’s December 29, 2009 E.O. 13,526 § 1.5 declassification and §1.7 misclassification procedures are flawed if the “appropriate authorities” decide that their §3.6 “Glomar Response” defense decisions are not subject to Article review by the ISCAP or Article III Dinler review. §§ M, XX.
81 O. Notice to U.S. Attorney Lynch of AAG of the OLC Goldsmith’s May 21, 2004 memo to HHS General Counsel Azur re the “whistleblower” statute not applying to HHS employees reporting alleged crimes to Congressional Oversight Committees
The appellant has placed U.S. Attorney Lynch on Notice of AAG of the OLC Goldsmith’s May 21, 2004 opinion to HHS General Counsel Azur re the “whistleblower” statute not applying to HHS employees reporting alleged crimes to Congressional Oversight Committees. U.S. Attorney Lynch should consult with AAG of the OLP Schroeder to determine whether this standard applies in 2010 if she determines that SSA Commissioner Nominee Astrue had lied to the January 24, 2007 Senate Finance Committee that the nonacquiescence policy had ended prior to his becoming the HHS General Counsel in 1989. She should consult with Acting HHS General Counsel Childress to determine whether HHS Secretary Sebelius, his client, knows that SSA Commissioner Astrue’s January 24, 2007 false Senate testimony was a crime.
AAG of the OLC Goldsmith’s May 21, 2004 OLC opinion, Authority of Agency Officials to Prohibit Employees from Providing Information to Congress, was in response to an April 26, 2004 Congressional Research Service (CRS) Memo Re: Agency Prohibiting a Federal Officer from Providing Accurate Cost Information to the United States Congress. AAG OLC Goldsmith’s OLC memo explained the application of the Unitary Executive theory to withhold from Congress requested HHS information. He concluded that “consistent with longstanding Executive Branch legal positions, that HHS officials do indeed have such authority.” Id. 1. Emphasis Added. http://www.usdoj.gov/olc/crsmemoresponsese.htm.
AAG Goldsmith cited to President Clinton’s AG Reno’s March 9, 1998 OLC Statement of Administration Policy (SAP) regarding employees disclosing classified information to Congress without the President’s authorization to disclose the classified information: The SAP stated that the Administration had determined that S. 1668, a bill purporting to direct the President to inform employees in the intelligence community that they had a right to disclose classified information to Congress without authorization, was an unconstitutional violation of separation of powers principles and, if presented to the President, would be the subject of a veto recommendation from his senior advisors. The SAP explained the “Unitary Executive” theory whereby the Congress could not encroach on the President’s authority to protect national security and other privileged information: This provision is clearly contrary to the Supreme Court's explicit recognition of the President's constitutional authority to protect national security and other privileged information. Congress may not vest lower-ranking personnel in the Executive branch with a "right" to furnish national security or other privileged information to a member of Congress without receiving official authorization to do so. By seeking to divest the President of his authority over the disclosure of such information, S. 1668 would unconstitutionally infringe upon the President's constitutional authority. Id. 1. Emphasis Added.
82 AAG OLC Goldsmith’s May 21, 2004 opinion cited to a September 8, 1986 memo from AG Meese’s AAG of the OLC Charles Cooper to President Reagan’s WH Counsel Peter Wallison which was issued after the Second Circuit’s July 31, 1986 Barrett decision:
The position presented in the Clinton Administration SAP (see reference to "other privileged information") and the Moss Testimony (at 19 n.34) was not limited to classified information, but extended to all deliberative process or other information protected by executive privilege. Because these statutes may not override the constitutional doctrine of executive privilege, they may not act to prohibit the supervision of the disclosure of any privileged information, be it classified, deliberative process or other privileged material. See Memorandum for Peter J. Wallison, Counsel to the President, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel at 3 n.6 (Sept. 8, 1986) ("Consistent with our view that Congress cannot override executive privilege by statutory enactment, we do not believe the 'whistleblower' provisions allow an employee to escape sanctions for disclosure of material covered by executive privilege."). See also Memorandum for Robert M. McNamara, Jr., General Counsel, Central Intelligence Agency, from Todd D. Peterson, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Legal Authority to Withhold Information from Congress at 3 (Sept. 9, 1998) ("application of [statutory] reporting requirements . . . is limited by a constitutional restraint - the executive branch's authority to control the disclosure of information when necessary to preserve the Executive's ability to perform its constitutional responsibilities"). Id. 2. Emphasis Added.
AAG of the OLC Goldsmith explained that pursuant to the President’s Article II “take Care” duty, the President must be able to “rely upon the faithful service of subordinate officials”:
The [judicial] decisions and the long practical history concerning the right of the President to protect his control over the Executive Branch are based on the fundamental principle that the President's relationship with his subordinates must be free from certain types of interference from the coordinate branches of government in order to permit the President effectively to carry out his constitutionally assigned responsibilities. The executive power resides in the President, and he is obligated to "take care that the laws are faithfully executed." In order to fulfill those responsibilities, the President must be able to rely upon the faithful service of subordinate officials. To the extent that Congress or the courts interfere with the President's right to control or receive effective service from his subordinates within the Executive Branch, those other branches limit the ability of the President to perform his constitutional function. Id. 2-3. Emphasis Added. The President also has a “take Care” duty to enforce the SSI regulations equally. Therefore, U.S. Attorney Lynch has to decide whether she is providing “faithful service” to President Obama by not reporting SSA Commissioner Astrue’s false testimony. §§ C, J, U, Z.
83 U.S. Attorney Lynch should heed the warning of former-AAG of the OLC Jack Goldsmith in his Memoir The Terror Presidency, that explained the “genius” of the attorneys- patriots who have implemented the extreme “Unitary Executive” theory:
They were geniuses at this,” Goldsmith said. “they could divide up all these problems in the bureaucracy, ask different people to decide things in their lanes, control the facts that they gave them, and then put the answers together to get the result they want.” Conflict Over Spying Led White House to Brink. Gellman, Washington Post, 9-14-08.” Emphasis Added. Internet p. 3 of 9 of excerpt from The Terror Presidency.
AAG of the OLC Goldmith’s May 21, 2004 “whistleblower” memo takes on greater importance if AAG of OLP Schroeder learns that the E.O. 13,256 “appropriate authorities” are the 2010 “geniuses” who are members of the 1982-2010 shadow government who made the decisions regarding the construction and maintenance of the “do not exist” 1984-2001 NSA TSP data banks, 2002-2005 “immaculate construction” NSA PSP data banks, and the 2006-2010 NSA PSP data banks that have not been funded with classified OMB Budget funds. In May, 2004, AAG of the OLC Goldsmith, AAG of the Civil Division Keisler, FBI General Counsel Caproni, FBI Director Mueller’s Chief of Staff Wainstein, and OIPR Counsel Baker all knew that the “do not exist” 2004 “immaculate construction” NSA PSP data banks were being accessed by NSA military officers as part of DOD Secretary Rumsfeld’s TALON program in violation of the FISA “exclusivity provision” and the PCA military domestic law enforcement limitations, but none of these attorneys informed the Intelligence Committees of these crimes. §§ M, N, CC.
AAG of the OLC Goldmith’s HHS May 21, 2004 “whistleblower” memo is a Past is Prologue memo because scores of 2010 HHS, SSA, and DOJ employees and attorneys know that SSA Commissioner Astrue lied to the January 24, 2007 Senate Finance Committee that the “nonacquiescence policy” had ended prior to his becoming the HHS General Counsel in 1989, because they know that as 1989-1993 HHS General Counsel Astrue he applied the “Jackson” regulation, 20 C.F.R. § 416.1130 (b), only in the Seventh Circuit states. However, because of the AAG of OLC Goldsmith’s May 21, 2004 HHS “whistleblower” memo, none of the scores of USG employees have reported the false testimony to the Senate Finance Committee. §§ P-Z.
Acting HHS General Counsel Childress has the 2010 attorney-client duty to inform HHS Secretary Sebelius of these 2010 “whistleblower” facts when he advises his client whether she should accept the appellant’s Robert VIII v DOJ, HHS, and SSA quiet settlement offer whereby SSA Commissioner Astrue “makes true” his Senate testimony. Acting HHS General Counsel Childress is sensitive to the separation of powers issue of Executive Branch officials lying to Congressional Oversight Committees. He had been a key staffer to Senator Majority Leader Tom Daschle and Senator Kennedy’s General Counsel for the Senate Health, Education Labor and Pensions Committee. He understands the 2010 “collateral damage” of AAG of the OLC Goldsmith’s May 21, 2004 OLC opinion that prohibits him from “whistleblowing” and informing Chairman Baucus of the Senate Finance Committee that SSA Commissioner Astrue had lied at his January 24, 2007 confirmation hearing. He knows this false testimony remains uncured false 2010 Senate testimony that affects millions of Ford class members who are constituents of the 94 Senators who are not the Senators from the Seventh Circuit States. §§ C, Z.
84 Acting HHS General Counsel Childress has access to the HHS General Counsel archives. As a result, he can use the 1982-2010 “rigging” of the HHS-SSA computer with the “Jackson nonacquiescence policy” in his 2010 explanation to HHS Secretary Sebelius that HHS General Counsels did not report their knowledge of the violations of the Social Security Act to Congressional Oversight Committees because they adopted the Unitary Executive theory that this would encroach upon the President’s unlimited authority to protect the national security. He can inform HHS Secretary Sebelius whether HHS General Counsel del Real was a covered agent when he made his 1982 “Jackson nonacquiescence policy” that was ratified by his successor HHS General Counsels: Robertson (1985-1988), Sterrett (1988-1989), Astrue (1989-1993), Raab (1993-2001), Azar (2001-2005) Meron (2006-2007), Acting Cade (2008), and Acting Barker (2008-2009). He can inform HHS Secretary Sebelius whether HHS General Counsels Robertson, Astrue, Raab Azar, and Meron were covered agents whose “clients” were not HHS Secretaries Bowen, Sullivan, Raab, Thompson, or Leavitt, but shadow government patriots. §§ A, N, ZZ.
HHS General Counsel Robertson (1985-1988) knew that the HHS “Fraud Against the Government” investigations of IMC and Robert were initiated by HHS General Counsel del Real and why in 1987 AAG of the Criminal Division Weld terminated these investigations. He knew whether unaudited HHS funds were diverted as off-OMB Budget funds to pay for the DIA-CIA- FBI “black operations” that could not be paid for with classified OMB funds. He knew where the HHS copy of the joint FBI-DOJ-HHS 1987 “IMC Final Investigation Report” was located that could not be located by the “due diligence” searches during Robert III v HHS, Robert III v DOJ, and Robert VIII v DOJ, HHS, and SSA. He knew on April 21, 1986 why AAG of the Civil Division Willard decided the “Jackson” regulation, was to be limited to the Seventh Circuit States contrary to the July 25, 1985 House testimony that the nonacquiescence policy had ended on June 3, 1985 and that Jackson was not a nonacquiescence case. §§ R, U, Z, II, AAA.
HHS General Counsel Astrue (1989-1993) knew that his June 22, 1989 Senate Finance Committee testimony as President Bush’s Associate White House Counsel-HHS General Council Nominee, was false because he ratified the “Ruppert nonacquiescence policy” when he approved the July 16, 1990 “Ruppert Acquiescence” ruling which explicitly applied the “Jackson nonacquiescence policy” to the Second Circuit States. He knew why his “client” instructed him to reject the June 14, 1991 “Rental Subsidies Memo” options that were proposed to end the Ruppert and Jackson “nonacquiescence” policies. He made the 1991 “Navarro nonacquiescence policy” decision that Judge Nickerson had “incorrectly” interpreted 20 C.F.R. 416. §1201 and that NYS was not violating the NYS Medicaid Plan when seizing resources that would have otherwise been transferred into Supplemental Needs Trusts (SNTs). §§ F, S, U, X.
HHS General Counsel Raab (1993-2001) knew the name of her “client” who instructed her to appeal Judge Spatt’s 1993 Gordon decision and reject Gordon counsel’s Second Circuit request for a remand for HHS Secretary Shalala to render a de novo decision whether to continue to apply the Jackson and Ruppert “nonacquiescence” policies. She knows whether she was consulted by Associate AG Schmidt when he reviewed HHS Secretary Shalala’s Gordon litigation position upon the request of WH Counsel Mikva. She knew the answer to the Gordon riddle whether Associate WH Counsel Astrue’s June 22, 1989 Senate testimony that the “nonacquiescence” policy had ended was false, or SG Days 1996 Gordon Brief in opposition to petition for a writ of certiorari defending the “nonacquiescence” policy, was false. §§ E-H, T.
85 HHS General Counsel Azur (2001-2005) knew why the March 30, 2004 “CMS Jackson” documents were not included in the Robert II v HHS, 217 Fed. Appx. 50 (2d Cir. 2007) Record. He knew that those documents revealed whether he knew that Region II HHS Chief Regional Counsel Blum knew federal regulations were being violated because NYS was using the Medicaid “priority” lien standard rather than the federal “pro rata share” standard. He knew who made the decision not to process Robert’s HHS complaint that the NYS Medicaid Plan was violated because the NYS Department of Health Commissioner was violating the same regulations as were violated in California and Washington for which HHS Secretary Shalala levied multimillion dollar sanctions. He knew that Chief Regional Counsel Blum knew that NYS was not reimbursing the HHS Secretary the federal government’s 50 % share of “incorrectly” provided Medicaid funds recovered by the implementation of the “Navarro nonacquiescence policy” that Congress had intended were to be transferred into SNTs to pay for a life time of supplemental needs of the Ford v Shalala “Navarro subclass” members. §§ E-H, X, AAA.
HHS General Counsel Meron (2006-2007) succeeded HHS General Counsel Azur on August 31, 2006. From 2003-2006 he had been the Principal Deputy Assistant AG of the Civil Division including being the Counselor and Chief of Staff of Civil Division of AAG Keisler. He knew in 2004 that the “do not exist” 1984-2001 NSA TSP and 2002-2004 NSA PSP “immaculate construction” data banks had been funded with off-Budget unaudited HHS funds. He was one of the K & A supervising attorneys of AUSA Mahoney in Robert VII v DOJ when AUSA Mahoney filed her April 3, 2006 letter-Brief explaining the USG position that Robert was not an aggrieved party by application of the FISA standing provision, 50 U.S.C. 1806(f). § M.
HHS General Counsel Meron had been a DOJ expert when the TALON Program was being implemented with information from the “do not exist” 2002-2005 NSA PSP data banks. This was revealed in his April 20, 2005 Speech to the Senate Judiciary Subcommittee on Terrorism, Technology, and Homeland Security, The Federal Material Support Statutes:
We at the Department of Justice, continue that fight, always cognizant of the vital importance of the liberties guaranteed by our Constitution. Working together with the intelligence community and out international allies, law enforcement agents and prosecutors have made significant progress in the war on terror through use of the criminal justice system, one of the many tools in the American counterterrorism arsenal. Id. 1. Emphasis Added. http://www.usdoj.gov/archive/ll/subs/testimony/042005-civ-meroncrm-sabin.pdf
HHS General Counsel Meron ratified the 2007 Ford v Shalala “remedy” that AAG of the Civil Division Keisler had approved after SSA Commissioner Nominee Astrue’s January 24, 2007 Senate Finance Committee testimony that the HHS nonacquiescence policy had ended. He knew AAG of the Civil Division Keisler made the “Christensen nonacquiescence policy” decision whereby the Ford “remedy” Notices sent to the 1994-2007 Ford class members cited to interpretations of regulations, but not to cited regulations. He also approved the 2006 “Ahlborn nonacquiescence policy” that the Medicaid pro rata share lien standard did not have to be applied retroactively in NYS to cure the violations of the same Medicaid lien regulations that HHS Secretary Shalala had sanctioned California and Washington. §§ C, D-H, R-U, X.
86 Upon information and belief, Acting HHS General Counsel Childress will be asking AAG of the OLP Schroeder whether OLC Goldsmith’s May 21, 2004 OLC opinion to HHS General Counsel Azur, Authority of Agency Officials to Prohibit Employees from Providing Information to Congress, applies to HHS Secretary Sebelius and whether she has the authority to inform Chairman Baucus of the Senate Finance Committee that SSA Commissioner Astrue lied in his January 24, 2007 Senate Finance Committee testimony that “nonacquiescence” policy had ended. This is a critical inquiry because Acting HHS General Counsel Childress knows the “lie was cast” in the July 25, 1985 House Judiciary Subcommittee testimony of Acting SSA Commissioner Mc Steen, SSA Chief Counsel Steen, and DAAG Kuhl that the “nonacquiescence” policy of HHS General Counsel del Real had ended on June 3, 1985 because the 1986-1996 HHS General Counsels implemented the “Jackson nonacquiescence policy” contrary to July 25, 1985 testimony that the nonacquiescence policy had ended. §§ R, U.
Acting HHS General Counsel Childress knows that lying to Congressional Oversight Committees will continue to be shielded with AAG of the OLC Goldsmith’s May 21, 2004 “whistleblower” memo until it is revised. He knows that the May 21, 2004 “whistleblower” memo is flawed whenever the “appropriate authorities” implement the extreme ”Unitary Executive” theory of 2001-2008 VP Cheney’s Counsel-Chief-of-staff Addington that the daisy-chain of “shadow government” patriots have a duty to lie-by-omission to the President in order to provide the President with a plausible deniability to the violation of unconstitutional laws that encroach upon the President’s Article II duty to protect the national security because they know violation of those laws are impeachable offenses. §§ K, Y, Z, CC.
Acting HHS General Counsel Childress knows that after the July 25, 1985 House testimony, the implementation of the “Jackson nonacquiescence policy” was a “clandestine” policy that triggers the 1986 Bowen v City of New York equitable tolling remedy for 1994-2010 Ford v Shalala class members. He also knows that President Obama possesses the Chilicky v Schweiker “normal sensibilities” of human beings that an illegal SSA policy should be remedied within months of the HHS Secretary knowing of the Social Security Act violation. §§ P, Q.
Upon information and belief, AAG of the OLP Schroeder will decide to change the “whistleblower” policy established in the AAG of the OLC Goldsmith’s May 21, 2004 to HHS General Counsel Azur based on President Obama’s December 29, 2009 E.O. 13,256 which established the internal Article II review procedure with the ISCAP review. However, that procedure is fatally flawed as long as “appropriate authorities” make “whistleblower” decisions based on the “Glomar Response” defense without the knowledge of President Obama in order to provide the President with a “plausible deniability” defense to impeachable offenses such as violations of the Social Security Act, the “exclusivity provision” of the FISA, the military limitations of the PCA, and the National Security Act § 413 reporting duty. §§ K, N, CC, DD.
If AAG of the OLP Schroeder recommends a change in the May 21, 2004 “whistleblower” memo, based on E.O. 13,256 and ISCAP review, then he should incorporate a “trustworthiness” test for the “appropriate authorities” who make “Glomar Response” decisions. In August, 2010, the “appropriate authorities” will pass the “trustworthiness” test if they read the connect-the-dots Robert withheld classified documents and inform President Obama that SSA Commissioner Astrue lied on January 24, 2007 to the Senate Finance Committee. §§ A, ZZ.
87 P. Notice to U.S. Attorney Lynch of the 1986 Bowen v City of New York equitable tolling remedy that applies to 2010 Ford class members whose benefits were denied because of “clandestine” policies revealed in the Ruppert and Ford case files notes and e-mails
The appellant has placed U.S. Attorney Lynch on Notice of the 1986 Bowen v City of New York, 106 S. Ct. 2022 (1986), equitable tolling remedy that applies to 2010 Ford v Shalala class members whose benefits were denied because of “clandestine” policies revealed in the Ford and Ruppert case files notes and e-mails. U.S. Attorney Lynch has a K & A duty to read those case file notes and e-mails when she makes her recommendation to AG Holder whether he should accept the appellant’s offer of a quiet settlement whereby SSA Commissioner Astrue makes true his January 24, 2007 Senate testimony that the nonacquiescence policy had ended prior to his becoming HHS General Counsel in 1989. If AG Holder determines that the “Jackson nonacquiescence policy” was a clandestine policy, then the equitable tolling remedy would apply to the 1994-2010 Ford v Shalala class members whose benefits were denied or reduced because the Jackson regulation has only been applied in the Seventh Circuit. § C.
On June 2, 1986, the Supreme Court decided Bowen v City of New York, and established the equitable tolling remedy that is to be applied when the HHS Secretary implemented a clandestine policy and denied benefits based on an illegal policy not known by the Social Security beneficiaries. Justice Powell explained the 1986 duty of HHS Secretary Bowen to cure the illegal policy retroactively because the claimants were denied a “fair and neutral” procedure to adjudicate appeals claim denials that the HHS Secretary had the capability to prevent:
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. Emphasis Added.
The June 2, 1986 Bowen v City of New York decision was after the July 25, 1985 House Judiciary Subcommittee testimony of Acting SSA Commissioner Mc Steen, SSA Chief Counsel Gonya, and DAAG Kuhl that the nonacquiescence policy had ended on June 3, 1985 and that Jackson was not a nonacquiecence case. This is an important time line fact because in August, 1985 HHS General Counsel del Real continued to implement his 1982 “Jackson nonacquiescence policy” to reduce by one-third the federal monthly benefits of millions of SSI recipients who resided in the 47 States that were not the Seventh Circuit. On August 16, 1985 Judge Altimari rendered a Ruppert decision. AAG of the Civil Division Willard knew that this decision was made without Judge Altimari considering the July 25, 1985 testimony. §§ C, S.
AAG Willard’s August, 1985 mens rea is a critical fact to apply the “clandestine” policy standard if AAG Willard was the “main Washington” attorney who appeared at the Ruppert September 4, 1985 held in Judge Altimari’s Chambers and had the ex parte communication with Judge Altimari. U.S. Attorney Lynch has a K & A duty to read the September 4, 1985 Ruppert case file notes and e-mails to determine if a DOJ attorney provided Judge Altimari with false ex parte information given the sworn July 25, 1985 House testimony. §§ B, F, G, S, Y, Z.
88 HHS General Counsel del Real’s August, 1985 mens rea is a critical fact given the sealed Robert v Holz HHS “Fraud Against the Government” investigation of Robert documents that reveal the 1985 information that HHS General Counsel del Real’s six Special Agents had provided him after their ex parte interrogation of Robert’s aged, blind, and disabled clients re the legal advice Robert provided and the fees he charged. U.S. Attorney Lynch will learn from reading the 1985 HHS “Fraud Against the Government” investigation of Robert documents along with the September 4, 1985 DOJ Ruppert case file notes, that Robert’s alleged “fraud” was advising his clients that HHS General Counsel del Real’s “Jackson nonacquiescence policy” was not the SSI standard that Congress intended was to be applied when computing their monthly SSI benefits both before and after the July 25, 1985 House testimony that the HHS- SSA-DOJ “nonacquiescence” policy had ended on June 3, 1985. §§ E-H, M, S, GG, YY, AAA.
The June 2, 1986 Bowen v City of New York equitable tolling remedy decision was after HHS General Counsel Robertson’s April 21, 1986 recommendation to HHS Secretary Bowen that he codify the “Jackson nonacquiescence policy” by publishing the “Jackson” regulation, 20 C.F.R. § 416.1130 (b). 51 F.R. 13487. The decision to limit the application of the Jackson decision to the Seventh Circuit states was contrary to the July 25, 1985 House testimony. § R.
The June 2, 1986 Bowen v City of New York equitable tolling remedy decision was prior to the Second Circuit’s July 31, 1986 Barrett v. United States, 798 F. 2d 565 (2d Cir. 1986), decision that government attorneys did not have a good faith defense to withhold from Judges material facts to protect national security secrets. “Finally, acceptance of the view urged by the federal appellants would result in a blanket grant of absolute immunity to government lawyers acting to prevent exposure of the government in liability.” Id. 573 Emphasis Added.
The June 2, 1986 Bowen v City of New York equitable tolling remedy decision was also prior to EDNY Chief Begleiter’s August 14, 1986 letter to EOUSA Attorney-Advisor Rodriguez that explained the DOJ “Unitary Executive” theory that because of AG Meese’s Article II authority, the AG could advise HHS Secretary Bowen that he did not have to acquiesce to the Seventh Circuit Jackson decision that had “incorrectly” interpreted the SSI income regulation:
There is, however, no duty on the part of the Department of Health and Human Services nor of the United States District Court for the Eastern District of New York to “acquiesce” or follow a Seventh Circuit decision and an Indiana district court decision applicable to an Indiana-only class in our district. Fundamental principles governing rulings by inferior federal courts dictate that one district need not accept as binding precedent the rulings of another district or of a Court of Appeals outside the district court’s circuit, unless an appropriate class is certified. Mr. Robert’s argument that it is somehow unlawful for the Secretary to treat Indiana residents differently from New York residents ignores the well accepted possibility of inconsistent decisions among district and circuit courts. As long as the law permits inconsistent rulings, there is no ethical violation in our arguing that Jackson decisions not be followed in the Eastern District of New York. Emphasis Added. http://www.snowflake5391.net/begleiter.pdf.
89 EDNY Chief Begleiter’s August 14, 1986 letter remains in 2010 as a “smoking gun” admission that the July 25, 1985 House Judiciary Subcommittee testimony was false because after the June 2, 1986 Bowen v City of New York decision, he admitted he was defending HHS General Counsel del Real’s 1982 “Jackson nonacquiescence policy” to deny SSI benefits. It is evidence that 1986 Counselor to the SSA Commissioner Astrue knew the July 25, 1985 testimony that the “nonacquiescence policy had ended, was false. This is a key 1986 mens rea fact because SSA Commissioner Astrue knows his June 22, 1989 and January 24, 2007 Senate testimony was also false because the 1994-2007 HHS-SSA computer had been “rigged” to apply the 1982 “Jackson nonacquiescence policy” to deny Ford class members benefits. §§ F, Z.
U.S. Attorney Lynch has a K & A duty to ask AUSA Mahoney, the USG’s 1998-2010 lead counsel in Ford v Shalala, whether her Ford command and control officers have instructed her to defend the “Jackson nonacquiescence policy” as applied to 1994-2010 Ford class members for the reasons asserted in Chief Begleiter’s August 14, 1986 letter to EOUSA Attorney- Advisor Rodriguez. If so, then U.S. Attorney Lynch will know that the Bowen v City of New York equitable tolling remedy applies to the 1994-2010 Ford class members given HHS General Counsel Nominee Astrue’s January 24, 2007 Senate Finance Committee testimony that the HHS-SSA “nonacquiescence” policy had ended prior to 1989. §§ B, C, D, F, G, H, W, Z.
After 1998-2001 U.S. Attorney Lynch reads the 2001-2007 Ford v Shalala case file notes and e-mails of AUSA Mahoney, 2010 U.S. Attorney Lynch will know why the Ford due process violations were not cured from 2001-2010. U.S. Attorney Lynch will know the details of the HHS-SSA clandestine policy by reading the 2003-2007 DOJ Ford case file notes of AAG of the Civil Division Keisler and the 2006-2008 HHS Ford case file notes of HHS General Counsel Meron, who had been the 2003-2006 Principal DAAG of the Civil Division and Counselor and Chief of Staff of AAG of the Civil Division Keisler. Then U.S. Attorney Lynch will be able to provide AG Holder an answer to the “Jackson” how-could-this-have- happened question that the appellant posed in his December 18, 2009 Robert VIII v DOJ, HHS, and SSA Motion seeking a Second Circuit pre-argument settlement conference. §§ GG, YY.
Then after reading the July 27, 2010 FOIA requested 1982-1986 HHS Ruppert remand documents, Robert v Holz, Robert v National Archives, 1 Fed. Appx. 85 (2d Cir. 2001), Robert v U.S. Department of Justice, 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), case file notes and e-mails, U.S. Attorney will know the names of the 1982-2007 attorney-patriots who implemented the post July 25, 1985 clandestine Jackson and Ruppert nonacquiescence policies. Then U.S. Attorney Lynch will know that the mother of HHS Bowen v City of New York clandestine policies has been the 1982-2010 implementation of the 1982 “Jackson nonacquiescence policy” of HHS General Counsel del Real, a DIA-CIA- FBI covered agent, to deny millions of aged, blind, and disabled SSI recipients one third of their federal SSI benefit amounts in order to divert those off-OMB Budget funds to pay for DIA-CIA- FBI “black operations” not funded with classified OMB Budget funds. §§ R-U, V, W, Z, CC.
AG Holder should know whether HHS General Counsel del Real was a covered agent. If he decides that a Bowen v City of News York clandestine policy was implemented from 1982-2010, then this is a fact that will lead to his acceptance of the quiet settlement offer.
90 Q. Notice to U.S. Attorney Lynch of the 1988 Chilicky “normal sensibilities” of human beings remedy that is measured in months, and not years or decades
The appellant has placed U.S. Attorney Lynch on Notice of the Schweiker v. Chilicky, 108 S. Ct. 2460 (1988), “normal sensibilities” of human beings remedy as explained by Justice O’ Connor. Congress intended that the elaborate administrative appeal procedure provided the necessary relief if the HHS Secretary used an illegal standard to deny SSI benefits. The remedy to cure the use of an illegal HHS standard is to be measured in months, not years or decades. Because U.S. Attorney Lynch and AG Holder’s command and control officers all have the “normal sensibilities” of human beings, they will understand that a Robert VIII v DOJ, HHS and SSA quiet settlement whereby SSA Commissioner Astrue makes true his January 24, 2007 remedy as applied to Ford class members, should begin in the remaining months of 2010.
On June 24, 1988, Justice O’Connor explained that a SSI recipient could not receive damages for the denial benefits because Congress intended that the elaborate administrative appeal procedure provided the necessary relief if incorrect legal standards were used. She explained the cure for the use of the illegal standard is to be measured in months:
We agree that suffering months of delay in receiving the income on which one has depended for the very necessities of life cannot be fully remedied by the "belated restoration of back-benefits." The trauma to respondents, and thousands of others like them, must surely have gone beyond what anyone of normal sensibilities would wish to see imposed on innocent disabled citizens. Nor would we care to "trivialize" the nature of the wrongs alleged in this case. Id. at 2470. Emphasis Added.
When AG Holder applies the Chilicky “normal sensibilities” of human beings “within months” standard, his conscience will be shocked. He will learn that in July, 2010 the Ford v Shalala due process violations have not yet been cured 10 years after DAG Holder’s honorable and courageous 2000 decision not to perfect EDNY U.S. Attorney Lynch’s 2000 Ford v Shalala appeal. Upon information and belief, the conscience of every one of AG Holder’s “chain of command” attorneys served with this White Paper will be shocked when they learn that in 2007 AAG of the Civil Division Keisler decided that the Ford remedy Notices to cure the Ford due process violations, would not include citations to the SSI regulations upon which the millions of Ford class members benefits were denied benefits from 1994-2007. §§ C-H, J, N, Z, GG, ZZ.
Hence, the importance of AUSA Mahoney providing U.S. Attorney Lynch with an answer to the how-could-it-have-happened “Jackson” question posed in the appellant’s Second Circuit December 18, 2009 Motion for a pre-argument settlement conference:
How could it have happened that in 2010 SSA Commissioner Astrue is programming the 2010 SSA computer to apply the 1982-2010 “Jackson nonacquiescence policy” of HHS General Counsel del Real to deny 2010 Ford v Shalala nationwide class members benefits contrary to the sworn January 24, 2007 Senate Finance Committee testimony of SSA Commissioner Nominee Astrue that the “nonacquiescence” policy had
91 ended prior to his becoming HHS General Counsel in 1989, and contrary to the 2000 Christensen administrative law decision of Justice Thomas that the “law” to be applied is the duly promulgated regulation and not an agency’s attorney’s interpretation of the regulation?
If AUSA Mahoney answers the “Jackson” question by informing U.S. Attorney Lynch that all of the 2001-2007 litigation decisions made after DAG Holder’s 2000 decision were based on instructions from her main Justice command and control Ford v Shalala officers, then U.S. Attorney Lynch has a duty to perform her K & A duty and learn the names of all of AUSA Mahoney’s 2001-2010 chain of command officers. Upon information and belief, U.S. Attorney Lynch will learn that key Ford litigation decisions and the Ford “remedy” decision were made by 2003-2007 AAG of the Civil Division Keisler. If so, then U.S. Attorney Lynch should include in her Robert v DOJ, HHS, and SSA settlement memo for AG Holder an explanation of how Justice O’Connor’s “normal sensibilities” of human beings standard applies to the Ford v Shalala litigation decisions of AUSA Mahoney’s chain of command officers. This would include AAG of the Civil Division Keisler who in 1986 was President Reagan’s Assistant WH Counsel who knew whether HHS General Counsel del Real and HHS General Counsel Robertson were covered agents implementing a clandestine policy by diverting off-OMB Budget unaudited “Jackson nonacquiescence policy” to pay for “black operations.” §§ P, Y, Z.
The appellant has requested that before U.S. Attorney Lynch prepares her answer for AG Holder to the “Jackson” question, that she ask SSA Commissioner Astrue whether in 1990 as HHS General Counsel Astrue, he had consulted with Region II HHS Chief Regional Counsel Blum re Judge Stewart’s March 28, 1990 Hinton v. Sullivan, 737 F. Supp. 232 (S.D.N.Y. 1990), decision. Judge Stewart harshly admonished HHS Secretary Sullivan because he did not end the HHS policy of inputting “phony” income into the HHS computer to reduce the monthly SSI benefits. “Yet this "phony" amount was actually charged as income to plaintiff.” Id. 242.
U.S. Attorney Lynch can also consult with AUSA Mahoney, who in 1990 was an HHS Assistant Regional Counsel under the supervision of her mentor HHS Chief Regional Counsel Blum, to learn why the policy and practice of inputting of “phony” income did not end. AUSA Mahoney knows that Hinton “phony” income has continued to be inputted into the HHS-SSA computer from 1990-2010 in order to create billions of dollars of SSI reductions for millions of SSI recipients including the 1994-2010 Ford v Shalala class members. §§ E-H, K, S, T, U, Z.
Because of the simplicity of Justice O’Connor’s “normal sensibilities” of human beings standard, the appellant will be placing AG Holder’s “chain of command” attorneys on Notice that they have a due diligence duty to learn whether in 2010 SSA Commissioner Astrue continues during the Constitutional watch of President Obama and AG Holder, to input Hinton “phony” income into the 2010 SSA computer to reduce Ford class members monthly federal SSI benefits by one third. They will learn that SSA Commissioner Astrue’s SSA employees in the 47 States not in the Seventh Circuit Jackson states (and perhaps also in those states), input into the 2010 SSA computer the private rent subsidy that SSI recipients receive that is more than one third of their monthly SSI payment amount. They will learn that in 2010 SSA Commissioner Astrue reduces millions of Ford class members benefits by the one-third federal amount that the Congress appropriated to pay for the basic needs of the 2010 Ford class members. §§ E, S, T, U.
92 After EOUSA Director Jarrett and AAG of the Civil Division West learn that there has never been a Hinton “phony” income remedy, then they will know the time line mens rea legal significance of HHS General Counsel Astrue approving the July 16, 1990 Ruppert “Acquiescence Ruling” three months after Judge Stewart’s March 28, 1990 Hinton admonition. They will know that the inputting of Hinton “phony” income is a clandestine policy that triggers the application of the Bowen v City of New York remedy for Ford class members. § P.
Given the gravity of the appellant’s allegations that SSA Commissioner Astrue has been implementing a clandestine Jackson nonacquiescence policy contrary to Associate WH Counsel Astrue’s June 22, 1989 Senate Finance Committee testimony and SSA Commissioner Nominee Astrue’s January 24, 2007 Senate Finance Committee that the nonacquiecence policy had ended, AG Holder’s chain of command attorneys will have their own duty to read this Senate Finance Committee testimony and determine if it is false testimony. Then they will have their own 28 U.S.C. § 535(b) duty to inform AG Holder that SSA Commissioner Astrue, his client, lied to the January 24, 2007 Senate Finance Committee testimony that the nonacquiescence policy had ended prior to his becoming HHS General Counsel in 1989 as evidenced by the Hinton “phony” income that continues to be inputted into the 2010 SSA computer. §§ J, R, S, T.
Because AG Holder’s chain of command attorneys possess the Chilicky “normal sensibilities” of human beings, they will inquire of AAG of the OLC Barron whether 1982 Jackson and 1990 Ruppert nonacquiescence documents exist. If so, then they will learn whether pursuant to the 2002 28 U.S.C. § 530D statutory reporting duty, AGs Ashcroft (2001-2004) or Judge Gonzales (2005-2007) or Acting Keisler (2007) or Judge Mukasey (2008) or Holder (2009-2010) reported the Jackson and Ruppert nonacquiescence policy standards to the Congress. This is an important fact because millions of 2010 Ford v Shalala class members are constituents of all 535 Members of Congress who should have been notified that the SSA Commissioner Astrue is implementing nonacquiescence policies contrary to his sworn January 24, 2007 Senate Finance Committee testimony that the nonacquiescence policy had ended. § D.
If AG Holder’s chain of command attorneys learn that the “Jackson nonacquiescence policy” document is a classified document pursuant to President Bush’s November 2, 2002 “exception” standard to 28 U.S.C. 535(b), then the embedded 2010 fifth column DOJ attorneys who know this fact, do not possess the “normal sensibilities” of human beings. Hence, the importance of AAG of the OLP Schroeder making the 2010 DOJ policy determination whether the duty of DOJ attorneys who have signed nondisclosure agreements not to reveal that HHS General Counsel del Real and SSA Commissioner Astrue were DIA-CIA-FBI covert agents, no longer trumps their 28 U.S.C. 535 (b) duty to report crimes to AG Holder. §§ D, F, L, M, N.
Because AG Holder’s 2010 r chain of command attorneys all possess the Chilicky “normal sensibilities” of human beings, if the appellant does not receive acknowledgment letters from these chain of command attorneys by August 30, 2010, and SSA Commissioner Astrue continues to “rig” the August, 2010 SSA computer to apply the 1982 “Jackson nonacquiescence policy” standard of HHS General Counsel del Real, then this will be evidence that a 2010 DOJ stovepipe exists. This is also evidence that the 2010 daisy-chain of shadow government attorney-patriots making 2010 Top Secret decisions without President Obama’s knowledge, do not possess the Chilicky “normal sensibilities” of other human beings. § N.
93 R. AG Holder’s 2010 duty to acquiesce to Justice Thomas’ 2000 Christensen v Harris administrative law holding and cite in the Ford v Shalala “remedy” Notices to the Jackson SSI income regulation that is equally applied in all 50 States in order to cure the April 9, 1994 Ford due process violations that have not yet been cured in July, 2010
AG Holder has a 2010 duty to acquiesce to the Justice Thomas’ Christensen v. Harris County, 120 S. Ct. 1655 (2000), administrative law holding and cite to the Jackson SSI income regulation in the remedy Notices sent to the 1994-2010 Ford v Shalala class members to cure the Ford due process violations. Judge Sifton’s Ford class order required a citation to the SSI regulations in the Ford Notices to remedy the due process violations. The Seventh Circuit in Jackson v Schweiker held that the SSI income regulation had “general validity” when it rendered its “actual economic benefit” decision that SG Rex Lee did not appeal. If AG Holder accepts the quiet settlement offer, then the Jackson regulation would be equally applied in all 50 States to cure the 1994-2010 Ford due process violations that continue in 2010. § C.
On May 1, 2000, the Supreme Court decided Christensen and clarified the Chevron deference standard. Christensen involved an interpretation of the enabling statute made by a Labor Department attorney. Justice Thomas soundly rejected Attorney General Reno's and Solicitor General Waxman's argument that the Court should defer to Executive Branch attorney's interpretation of the applicable regulation rather than the plain meaning of the regulation:
Seeking to overcome the regulation's obvious meaning, the United States asserts that the agency's opinion letter interpreting the regulation should be given deference under our decision in Auer v. Robbins, 519 U.S. 452, 117 S. Ct. 905, 137 L.Ed. 2d 79 (1997). In Auer, we held that an agency's interpretation of its own regulation is entitled to deference. Id. at 461, 117 S. Ct. 905. See also Bowles v. Seminole Rock & Sand Co. 3235 U.S. 410, 65 S. Ct. 1215, 89 L.Ed. 1700 (1945). But Auer deference is warranted only when the language of the regulation is ambiguous.--it is plainly permissive. To defer to the agency's position would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation. Because the regulation is not ambiguous on the issue of the compelled compensatory time, Auer deference is unwarranted. Id. at 1612. Emphasis added.
Here, however, we confront an interpretation contained in an opinion letter, not one arrived at after, for example, a formal adjudication or notice-and-comment rulemaking. Interpretations such as those in opinion letters-like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law--do not warrant Chevron-style deference. Id. at 1663. Emphasis added.
In October, 2000, then-DAG Holder made his honorable decision not to appeal U.S. Attorney Lynch’s Ford appeal with the knowledge of the Christensen administrative law holding. In August, 2010, AG Holder has a duty to acquiesce to the Christensen holding that the law to be applied when computing Ford class members in all 50 States, is 20 C.F.R. § 416.1130 (b).
94 Judge Sifton’s 1999 nationwide class certification Order did not include any exceptions to implement HHS-SSA-DOJ “nonacquiescence” policies applied to specific Circuits. It referred to all SSI recipients in the United States. . “…all SSI applicants and recipients in the United States who have not received or will not receive written notices from SSA...” §§ C, GG.
Judge Sifton's 1999 Ford Order was clear that the HHS Secretary/SSA Commissioner is to cite to the applicable regulation upon which benefits were terminated or reduced. “… e) citation to specific laws and/or regulations upon which the SSI determination is based;” §§ R, Z.
If AG Holder complies with Judge Sifton’s 1999 class order, then he will review the 2007 Ford “remedy” of SSA Commissioner Astrue that was approved by AAG of the Civil Division Keisler. AG Holder will learn that the 2007 Ford remedy plan did not include a citation to the SSI regulations. It also did not include an end to application of the Jackson regulation, 20 C.F.R 416.1130(b), contrary to SSA Commissioner Astrue’s January 24, 2007 Senate testimony.
Based on the 1982-2010 ongoing housing crisis for SSI recipients who could not afford to pay fair market rent, AG Holder should read the Seventh Circuit’s July 20, 1982 Jackson v. Schweiker, 683 F. 2d 1076 (7th Cir. 1982), decision and apply its “all or nothing” holding equally in all 50 States, as was the Seventh Circuit’s interpretation of Secretary Schweiker's SSI income regulation, then denominated as 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 1982 “all or nothing” SSI income regulation, 20 C.F.R. § 416.1125 (d), has morphed into the Jackson regulation, 20 C.F.R. § 416.1130 (b), applied only in the Seventh Circuit States.
In Jackson, the Seventh Circuit held the HHS income regulation had “general validity” consistent with the enabling statute, and intended that the regulatory standard be applied “all or nothing” to the facts of SSI recipients in all 50 States. "Implicit in our analysis, then, is our acceptance of the general validity of the regulation as applied in many situations from which the decisions of various courts arise, including the decision of other Courts of Appeals." Id. n. at 2.
The Seventh Circuit explained the “actual economic benefit” standard of the SSI regulation when the rent owed by the SSI recipient was 77 % of the SSI recipient's income:
Where a very large percentage of income, such as 77 % in Jackson's case, is committed to shelter costs before termination of SSI, it flies in the face of reality to conclude that "unearned income" in the form of subsidized shelter as measured by the difference between actual rent and market rent is "actually available to the recipient. Likewise, it is incorrect to assume in this circumstance that purchasing power is enhanced to the extent of this difference in rents. The Secretary's regulation contains no mechanism to reflect amounts or proportions of income committed to shelter. Yet the percentage and amount of a recipient’s income already devoted to shelter determines to a major extent the satisfaction derived from additional shelter –technically the marginal utility of additional. The degree of satisfaction derived from various imputed amounts of additional in-kind
95 income in the form of shelter depends in large measure upon the pre- imputation of income level and the pre -imputation shelter expense. In Jackson's case, for example the additional shelter did not meet a "basic need". Further, the imputed shelter income generated only a low level of satisfaction since it was imputed only after 77 % of Jackson's small income was already being spend of shelter. Id. at 1084.
The Seventh Circuit remanded Jackson to the District Court to determine whether to order the class the Secretary amending the SSI “all or nothing” 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.
The Seventh Circuit provided guidance to the District Court as to the fashioning of the Jackson remedy by the application of the SSI “general validity” income regulation:
We believe that the regulation as applied must recognize in some situations the amount and distribution of the recipient's income among basic needs as a factor in measuring unearned income to be imputed. On remand, the district court may also redetermine the class, if necessary, and consider any other measures that will provide relief consistent with this opinion. Id. at p. 1086. Emphasis added.
Solicitor General Rex Lee did not appeal the Seventh Circuit’s Jackson decision because he determined that the decision had misapplied the facts. In his October, 1983 Brief in opposition to the Glasgold-Rothman SSI recipients’ petition for a writ of certiorari, Solicitor General Lee advised the Supreme Court that Jackson had been correctly decided.
The Second Circuit would rely upon SG Lee's argument in his Supreme Court Rothman Brief that Jackson had been correctly decided. The Second Circuit 1989 Ruppert v. Bowen decision adopted the “actual economic benefit” standard of the Jackson decision:
Appellants point out that the Solicitor General’s brief successfully opposing the grant of certiorari in Rothman said, irrespective or the positions taken by the Secretary before this court and the Jackson court at various stages in each case:
Petitioners rely heavily on Jackson v Schweiker, 683 F. 2d 1076 (7th Cir. 1982), which they claim conflicts with the decision below and several other court appeals decisions. However, no such conflict exists. Ruppert at 1085. Emphasis not Added.
96 The issue of whether there was a “conflict” between the Seventh Circuit 1982 Jackson decision and the Second Circuit 1983 Rothman decision as to interpreting the “all or nothing” SSI income regulation, would haunt the SSI litigation in Jackson, Ruppert, Gordon, and Ford for the next twenty-seven years. After AG Holder reads the 2007 Ford “remedy” of SSA Commissioner Astrue that AAG of the Civil Division Keisler approved after SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee that the “nonacquiescence” policy had ended, AG Holder will realize that he has to confront the ghost of the Jackson “all or nothing” regulation holding if he is to acquiesce to Justice Thomas’ Christensen administrative law holding that the “law” is the regulation and not an attorney’s interpretation of the regulation.
The appellant filed the July 27, 2010 FOIA request for “SG Lee’s 1982 Jackson memo” to learn why SG Lee did not file a Jackson petition for a writ of certiorari. SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee testimony that the “nonacquiescence” policy had ended is grounded in SG Lee’s 1982 Jackson memo. SG Lee knew that the SSI income regulation had to be an “all or nothing” challenge because he knew that AG William French Smith had to equally enforce the SSI regulations in all 50 States. He knew Congress intended that President Nixon’s 1972 SSI program have uniform regulations equally applied in all 50 States because a primary purpose of the federal SSI program was to replace the 50 different state welfare programs that were being administered for the aged, blind, and disabled.
On January 6, 1984, Chief Judge Sharpe rendered his decision in the remanded Jackson v. Heckler, 581 F. Supp. 871 (N.D. Ind. 1984). He ordered Secretary Heckler to promulgate an SSI income regulation pursuant to the APA. He rejected HHS General Counsel del Real’s plan to modify the SSA internal manual and not amend the SSI income regulation:
As an initial matter, the court will consider the parties' dispute over whether the Secretary must amend the relevant regulation or simply modify internal operation procedures and manuals. The plaintiff argues that the relief mandated by the court of appeals will be effectively implemented only if SSI claimants and their representatives or advocates have access to the modifications throughout the regulations found in the Federal Register and the Code of Federal Regulations. Otherwise, persons using the normal research tools will find nothing but the regulation which found inadequate by the court of appeals and will have no indication that it has been modified. While instructions and guidelines in internal operating manual and policy statements may be effective means of informing social security administration personnel it is not an effective means of informing claimants and their representatives. There is simply no basis for assuming internal operational manual are generally available. Furthermore, the Secretary has not advanced any compelling reason why the regulation should not be amended. Therefore, this court will require and amendment to the challenged regulation. Id. 876. Emphasis Added.
Chief Judge Sharpe’s 1984 Jackson decision foreshadowed Judge Sifton’s 1999 Ford decision and Justice Thomas’ 2000 Christensen decision. The SSI income regulation had to be amended in order that SSI recipients knew the law being applied to reduce their benefits. § C.
97 On April 20, 1984, DAAG Kuhl wrote a letter to OMB Reports Management Branch of the Office of Information and Regulatory Affairs Official Milo Sunderhauf explaining the DOJ position that Jackson was “incorrectly” decided. She provided the history of the Jackson litigation and relied upon Solicitor General Lee’s memoranda upon which the decision was made not to file a Jackson petition for a writ of certiorari. DAAG Kuhl’s pre-July 25, 1985 mens rea was clear that Jackson was “incorrectly” decided and she ratified HHS General Counsel del Real’s proposed remedy that the Jackson holding should be limited to the state of Indiana:
We have reviewed the memoranda to the Solicitor General which led to the decision not to petition for certiorari in Jackson. They are consistent with defending the old and working other cases, both in the Seventh Circuit and in other circuits, to attempt to persuade the courts that Jackson was incorrectly decided. Under these circumstances we have no objection to HHS’s proposal to limit its proposed rule to Indiana. Id. 2-3. Emphasis Added. http://www.snowflake5391.net/kuhl.pdf.
Hence, the importance of the July 27, 2010 FOIA request for the “SG Lee’s 1982 Jackson memo” because it reveals whether DAAG Kuhl’s “attempt to persuade the courts that Jackson was incorrectly decided” is based on an accurate reading of SG Lee’s 1982 Jackson memo. DAAG Kuhl’s April 20, 1984 mens rea has time line significance because of her subsequent July 25, 1985 testimony to the Subcommittee on Administrative Law and Governmental Relations of the Committee that was considering legislation to end the HHS “nonacquiescence” policy of HHS Secretary Heckler and HHS General Counsel del Real.
On July 25, 1985, DAAG Carolyn Kuhl testified at the House Oversight Hearing: Judicial Review of Agency Action: HHS Policy of Nonacquiescence. DAAG Kuhl explained that no legislation was needed because the new Social Security Administration’s June 3, 1985 “acquiescence” policy was established to seek uniformity of SSA policies in its federal programs that Congress intended should have nationwide uniformity in all 50 States:
Under its new policy, the Social Security Administration acknowledges that, to some extent at least, nationwide uniformity is no longer possible. The Secretary of Health and Human Services will follow circuit precedent in making final benefit determinations, except in those few cases presenting an issue which HHS, in consultation with the Solicitor General, determines should be relitigated in order to urge reconsideration of a rule of law in a circuit or to seek potential Supreme Court review. Thus, as it applies to the courts, this policy means that we will follow circuit precedent when the Department of Justice enters the proceedings-- that is in the district court- except where the Justice Department and HHS agree that the issue should be litigated further. Id. at 10. http://www.snowflake5391.net/JudicialReview.pdf.
Acting SSA Commissioner Martha McSteen explained to Members of Congress the new post-June 3, 1985 "acquiescence" policy and how it would be implemented:
98 We will obey the court directives. We want to follow the congressional mandate. We are very concerned about the individual beneficiaries, and fourth, we must ensure that we have a uniform method of operating and apply those standards uniformly. So we debated the issue of how to implement our policy with great care and with consideration as to how that should take place and where it should take place. Id. at 19. Emphasis added.
Upon the request of the Committee SSA Chief Counsel Gonya, who also testified at the July 25, 1985 hearing, provided the House Committee with a list of the June 3, 1985 “nonacquiescence” cases. Jackson was not listed as a “nonacquiescence” case. Id. 31-34.
The fact that Jackson was not listed as a “nonacquiescence” case is a 2010 smoking gun fact for AG Holder to know. On July 25, 1985 SSA Commissioner Astrue was the Acting Deputy Assistant Secretary of Legislation. He knew the significance of the fact that the House Committee abandoned its proposed legislation to end by statute the HHS nonacquiescence policy. He knew the “Jackson nonacquiescence policy” of HHS General Counsel del Real continued to be implemented after July 25, 1985 contrary to the July 25, 1985 House testimony of Acting SSA Commissioner Mc Steen, SSA Chief Counsel Gonya, and DAAG Kuhl. §§ S, T.
AG Holder will learn that SSA Commissioner Astrue has a long USG institutional memory because he would become 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, 1989 Associate White House Counsel for President Bush, 1989- 1992 HHS General Counsel, 2007- SSA Commissioner. The July 25, 1985 mens rea of SSA Commissioner Astrue is important when AG Holder reads the July 25, 1985 testimony of DAAG Kuhl and SSA Chief Counsel Gonya that the nonacquiescence policy had ended on June 3, 1985, along with June 22, 1989 Senate Finance Committee testimony of HHS General Counsel Nominee Astrue and the January 24, 2007 Senate Finance Committee testimony of SSA Commissioner Nominee Astrue that the nonacquiescence policy had ended. §§ C, P, U.
On October 10, 1985, Chief Judge Sharpe approved the proposed Jackson order requiring publication of the amendment to the SSI in-kind income regulation to comply with the Seventh Circuit's order in Jackson v. Schweiker, 683 F. 2d 1076, (7th Cir. 1982). However, contrary to the July 25, 1985 sworn Congressional testimony of Acting Commissioner Mc Steen, DAAG Kuhl, and SSA Chief Counsel Donald Gonya that the nonacquiescence policy had ended on June 3, 1985 and that Jackson was not a nonacquiescence case, the Court ordered "Jackson" regulation only applied to the Jackson Indiana certified class members and in no other States.
AAG of the Civil Division West’s 2010 due diligence review of the January, 1985- October 10, 1985 Jackson case file notes reveal whether AAG of the Civil Division Willard and DAAG Kuhl decided on the litigation strategy to inform Chief Judge Sharpe that his jurisdiction was limited to the Indiana class. AAG of the Civil Division West’s knowledge of AAG of the Civil Division Willard’s participation in the drafting of the October, 1985 Jackson regulation with its application only in Indiana after the July 25, 1985 House testimony that Jackson was not a listed “nonacquiescence” case, is an important fact because of AAG Willard’s litigation position presented at the September 4, 1985 Ruppert Chambers conference. §§ E, F, G, S.
99 On December 3, 1985, Judge Bua in Beckless v. Heckler, 622 F. Supp. 715 (D.C. Ill. 1985), certified an Illinois class of SSI recipients. Judge Bua applied the Seventh Circuit’s Jackson holding and admonished HHS Secretary Heckler because HHS Secretary Heckler had "failed to perform her duties as a public official” for Seventh Circuit Illinois SSI recipients:
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 February 21, 1986, SSA Chief Counsel Gonya, with a copy to HHS General Counsel Robertson and HHS Chief Regional Counsel Blum, responded to a November 27, 1985 letter that the appellant had sent to President Reagan’s Chief of Staff Donald Regan informing him that President Reagan was not fulfilling his Article II “take Care that the Laws be faithfully executed” duty because the “Jackson nonacquiescence policy” had resulted in the SSI income regulation was not being equally enforced in the 49 states that were not the State of Indiana. SSA Chief Counsel Gonya advised the appellant that Jackson would only apply within the Seventh Circuit and that his was consistent with the “revised” HHS acquiescence policy:
I have been asked to respond to your November 27, 1985 letter to Mr. Donald T. Regan, Chief of Staff to the President, concerning your allegations of non-acquiescence by the Social Security Administration in the decision of Jackson v. Schweiker, 683 F.2d 1076 (7th Cir. 1982). Please be advised that all necessary steps are being taken to ensure that the Jackson decision is implemented in the Seventh Circuit in a manner consistent with this Department's revised acquiescence policy. No issue of acquiescence or non-acquiescence is raised by claims filed in jurisdictions outside that circuit. Emphasis Added. http://www.snowflake5391.net/2- 21-86%20SSA%20Gen.%20Cou.%20Gonya.pdf.
On April 21, 1986, HHS Secretary Bowen published the “Jackson” regulation, 20 C.F.R. § 416.1130(b), which expanded Judge Sharpe’s Indiana class order to include all three Seventh Circuit States, Indiana, Illinois, and Wisconsin. 51 F.R. 13487. This publication of the Jackson regulation occurred when SSA Commissioner Astrue was the 1986 Legal Counsel to the SSA Deputy Commissioner for Programs and knew that SSA Chief Counsel Gonya had informed the July 25, 1985 House Committee that Jackson was not a “nonacquiescence” case.
Apparently, HHS General Counsel Robertson and SSA Chief Counsel Gonya did not advise HHS Secretary Bowen of the equal protection problem continued as to the duty to apply the Jackson “actual economic benefit” standard in the 47 states not in the Seventh Circuit. Apparently, they did not advise HHS Secretary Bowen that the Jackson regulation was contrary to the July 25, 1985 House Judiciary Committee testimony of Acting SSA Commissioner Mc Steen and the list of “nonacquiescence” cases that did not include Jackson. As per the July 27, 2010 SSA FOIA request, U.S. Attorney Lynch should note the public comments in her settlement memo whether AG Holder should accept the quiet settlement offer. §§ H, U.
100 On March 23, 1987, SSA Chief Counsel Gonya wrote a letter to then-Assistant Professor Richard Revesz of the New York University School of Law, who was conducting a study on behalf of the Administrative Conference of the United States (ACUS), of the USG’s “nonacquiescence” policies. SSA Chief Counsel Gonya explained that the SSA “revised acquiescence policy” as to adjudicative decisions-making procedures and as to rule-making procedure. He disingenuously implied that the Jackson regulation applied to all 50 States:
Only occasionally is the rule making function involved in a Social Security acquiescence process when, for instance, a court requires the Secretary to issue regulations. See, for example, Pulido v Heckler, 758 F. 2d 503 (10th Cir. 1985); Jackson v Schweiker, 683 F. 2d 1076 (7th Cir. 1982); Jackson v Heckler, 581 F. Supp. 871 (N.D.Ind. 1984); Pulido v Heckler, 568 F. Supp. 627 (D. Co. 1983). Unless the court’s order is reversed or stayed on appeal, the agency, of course, complies with such a court order. Id. p. 3. Emphasis Added. http://www.snowflake5391.net/ssagonya.pdf.
On May 5, 1988, AAG of the Civil Division John Bolton, who succeeded AAG of the Civil Division Willard, explained the DOJ-HHS-SSA “silent nonacquiescence policy” to ACUS:
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 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. http://www.snowflake5391.net/aagbolton.pdf
AAG of the Civil Division Bolton’s explanation of the 1988 “silent nonacquiescence policy” continues as DOJ policy for the implementation of the “silent nonacquiescence policy” of 2010. Because AAG of the Civil Division West possesses the Chilicky “normal sensibilities” of other human beings, he has a 2010 duty to review this Bowen v City of New York “clandestine” 1988 DOJ “silent nonacquiescence policy” when he reviews SSA Commissioner Astrue’s 2007 Ford remedy applied to millions of 2010 Ford nationwide class members. §§ P, Q.
101 AAG of the Civil Division West’s knowledge of AAG of the Civil Division Bolton’s “silent nonacquiescence policy” is important because it explains why WH Counsel Astrue’s June 22, 1989 Senate Finance Committee testimony that the nonacquiescence policy had ended prior to his becoming HHS General Counsel in 1989, remains as uncured false testimony. On July 16, 1990, contrary to his June 22, 1989 testimony, HHS General Counsel Astrue expanded the “Jackson nonacquiescence policy” to include the 1990 “Ruppert nonacquiescence” policy” because the Jackson regulation continued only to be applied in Seventh Circuit states. § S.
In Beckless II v. Chater, 909 F. Supp. 575 (N.D. Ill. 1995), Judge Bucklo explained how Secretary Shalala’s interpretation of Jackson had also eviscerated the Jackson regulation even in its application within the Seventh Circuit State of Illinois, Indiana, and Wisconsin:
The defendant essentially argues that the "Exception" applicable to the Seventh Circuit should be read out of section 416.1130(b). Opposition def. br. 10. By its words, the exception does not confine a business arrangement to payment of full rent charged by a landlord. Rather, a business arrangement exists "when the amount of monthly rent required to be paid equals or exceeds the presumed maximum value ...." Id. at n. 4, p. 580. Emphasis Added.
AAG of the Civil Division Hunger did not appeal the 1995 Beckless II decision. This was consistent with his litigation position in his February, 1996 Supreme Court Gordon Brief in opposition to the Gordon petition for a writ of certiorari. In Gordon, AAG Hunger and SG Days argued that the 1982 Jackson and 1990 Ruppert “nonacquiescence” policies were based on the Supreme Court’s 1984 holding in United States v Mendoza, 464 U.S. 154 (1984). § T.
AAG of the Civil Division West has a K & A duty to read AAG of the Civil Division Hunger’s Beckless II case file notes along with the 1985-1996 “OMB Jackson” documents. He will learn why SSA Commissioner Chater decided “the “Exception” applicable to the Seventh Circuit should be read out of section 416.1130(b). AAG of the Civil Division West will learn that AAG of the Civil Division Hunger’s 1995 Beckless II case file notes mirror the 1985 Beckless I case file notes of AAG of the Civil Division Willard. This is a smoking gun fact when AAG of the Civil Division West reads the 1985 and 1995 “OMB Jackson” documents withheld pursuant to the “Glomar Response” defense, and “follows the money” to learn where the “Jackson nonacquiescence policy” funds not paid to 1985 SSI recipients were diverted, and then “follows the money” to learn where the “Jackson nonacquiescence policy” funds not paid to the 1994- 2010 Ford class members were paid. See Diaz case file notes discussed in § W and § Z.
In Ragsdale v. Apfel, 999 F. Supp. 814 (E. D. Vir. 1998), Judge Payne echoed Judge Bua's 1985 admonishment of HHS Secretary Heckler and AG Meese in Beckless I, and Judge Sporkin’s 1988 admonishment of HHS Secretary Bowen and AG Meese in Duggan v. Bowen. §§ S, X. Judge Payne sharply criticized HHS Secretary Shalala and AG Reno (and indirectly AAG of the Civil Division Hunger) for implementing the Jackson and Ruppert nonacquiescence policy” in defiance of the Seventh and Second Circuit Jackson and Ruppert decisions. Judge Payne explained how HHS Secretary Shalala’s and AG Reno’s 1999 Jackson and Ruppert nonacquiescence policies affected the Virginia SSI recipients:
102 This litigation need never have occurred. And, that it did, reflects poorly on the Agency which elected not to seek review of the decisions issued by the Second or Seventh Circuits and then put the Ragsdales to the needless task of establishing the obvious: that the decisions of the Second and Seventh Circuit were correct. Citizens residing in the Fourth Circuit should not be required needlessly to incur costs and fees in order to achieve the rights already enjoyed by those individuals residing in the Second and Seventh Circuit. It may be that the Agency's conduct is not sanctionable in this case, but it must be hoped that the Agency will not, in the future, pursue the course which it has followed here. Id. at 824. Emphasis Added.
AAG of the Civil Division Hunger did not appeal Ragsdale. He also did not instruct HHS Secretary Shalala to end the Jackson and Ruppert “nonacquiescence” policies. This became a key 1998 litigation decision when on September 29, 1999 Judge Sifton decided Ford and certified an April 9, 1994 a nationwide class date for millions of SSI recipients residing in all 50 States. The Ford v Shalala class order made the plaintiffs Ragsdales and Gordon class members. § T.
AAG of the Civil Division West has a 2010 K & A duty to read AAG of the Civil Division Hunger’s Ragsdale case file notes because Judge Payne’s 1998 Ragsdale admonition could be made in 2010 to HHS Secretary Sebelius and SSA Commissioner Astrue (and indirectly to AAG of the Civil Division West). “It may be that the Agency's conduct is not sanctionable in this case, but it must be hoped that the Agency will not, in the future, pursue the course which it has followed here. Id. at 824. Emphasis Added. §§ A, C, D-H, S, T, U, W, Z.
After AAG of the Civil Division West and EOUSA Director Jarrett fulfill their 2010 K & A duty and review the 2000-2007 Ford v Shalala case file notes that reveal the USG’s compliance with Judge Sifton’s September 29, 1999 Ford v Shalala nationwide class decision, they will advise AG Holder of the sanction vulnerability because the Ford remedy Notices continue not to cite to the Jackson regulation, 20 C.F.R. § 416.1130(b), equally enforced in all 50 States. AAG of the Civil Division West will learn from reading the 2000 Ford v Shalala case file notes of AAG of the Civil Division Ogden why he instructed U.S. Attorney Lynch to file the Ford Appeal. Then he has a K & A duty to compare those 2000 Ford case file notes to AAG of the Civil Division Keisler’s 2007 Ford case file notes approving SSA Commissioner Astrue’s Ford remedy that did not include Ford remedy Notices citing to the Jackson regulation. § C.
When AAG of the Civil Division West reads the 2000 Ford v Shalala case file notes he will learn the competing positions of AAG of the Civil Division Ogden and then-DAG Holder when he made his honorable 2000 decision not to perfect the Ford appeal. Upon information and belief, those 2000 Ford v Shalala case file notes will discuss the effect of applying Justice Thomas’ Christensen administrative law to the Ford class remedy to include a citation to the “Jackson” regulation that would be applied equally in all 50 States. “To defer to the agency's position would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.” Christensen v. Harris County, 120 S. Ct. 1655, 1663 (2000).
Those documents reveal who made the “Christensen nonacquiescence policy” decision. That decision continues to prevail because the 2010 Ford Notices do not cite to regulations. § H.
103 On August 18, 2010, the appellant will request that AAG of the Civil Division West read the case file notes and e-mails of AAG the Civil Division Willard in Jackson and Beckless I and of AAG of the Civil Division Hunger in Gordon, Beckless II, and Ragsdale, and make his recommendation to AG Holder whether to accept the appellant’s quiet settlement offer which would result in the Jackson regulation being equally enforced in all 50 States. The appellant will make the same request to EOUSA Director Jarrett to read the EOUSA Director’s case file notes and e-mails in those cases and to inform AG Holder why in 2010 his 94 U.S. Attorneys have not been enforcing the Jackson regulation equally in all 50 States. §§ C, H, U.
On August 18, 2010, the appellant will place AAG of the Civil Division West and EOUSA Director Jarrett on Notice that they have a K & A supervisory duty to read the 2001- 2007 Ford v Shalala case file notes and e-mails along with SSA Commissioner Astrue’s 2007 Ford “remedy” plan that was approved by AAG of the Civil Division Keisler. He will request that they read SSA Commissioner Astrue’s 2007 Ford “remedy” plan along with SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee testimony that the “nonacquiescence policy” had ended prior to his becoming HHS General Counsel in 1989. § G.
On August 18, 2010, the appellant will place AAG of the Civil Division West and EOUSA Director Jarrett on Notice of their K & A supervising attorney duty to apply the Christensen administrative law holding to the Ford “remedy” Notices sent to the 1994-2010 Ford class members to cure the Ford due process violations. He will place them on Notice that they have a K & A duty to learn the SSI income standard that SSA Commissioner Astrue has programmed the July, 2010 computer to compute the monthly benefits of 2010 Ford class members’ benefits whose July, 2010 rent is more than one third of their monthly SSI check. § T.
On August 18, 2010, the appellant will request that AAG of the Civil Division West and EOUSA Director Jarrett answer the how-could-it-have-happened question that was framed in the appellant’s December 18, 2009 Robert VIII v DOJ, HHS, and SSA Motion. He will place them on Notice of their own K & A supervisory duty to read the Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA case file notes and e-mails and determine for themselves whether HHS General Counsel del Real was a DIA-CIA-FBI covered agent. § AAA.
On August 18, 2010, the appellant will request that if AAG of the Civil Division West and EOUSA Director Jarrett learn that HHS General Counsel del Real was a covered agent when he rendered his 1982 and 1985 “Jackson nonacquiescence policy” decisions, that they determine whether this was a clandestine policy to trigger the Bowen v City of New York remedy. If so, then they should recommend to AG Holder that the Chilicky “normal sensibilities” of human beings applies and the Ford remedy should be implemented in the months 2010. §§ P,Q.
Hence, the importance of U.S. Attorney Lynch advising AG Holder in her “settlement” memo whether the Christensen administrative holding applies to the millions of Ford class members. If AG Holder agrees, then he will instruct SSA Commissioner Astrue, their client, to revise the Ford remedy plan to include Ford Notices that cite to the SSI regulations upon which the Ford class members are denied. AG Holder will also instruct SSA Commissioner Astrue that he amend the ackson regulation, 20 C.F.R. § 416.1130(b), to apply in all 50 States and cite to the amended regulation in the Ford Notices sent to 1994-2010 class members. §§ C, S, T, U, Z.
104 S. If there is a September 3, 2010 reinstatement of the appeal, then there will be request for the automatic declassification of the September 4, 1985 DOJ Ruppert v Bowen case file notes that reveal the ex parte information that DOJ attorneys provided Judge Altimari
If AG Holder rejects the appellant’s offer of a quiet settlement, then on September 3, 2010 the appeal will be reinstated. The appellant will inform the Second Circuit of the de novo FOIA requests, including the DOJ FOIA request for the September 4, 1985 Ruppert v. Bowen, 671 F. Supp. 151 (EDNY 1987), Ruppert v Bowen, 871 F. 2d 1172 (2d Cir. 1989), DOJ case file notes that reveal whether “Janus-faced” representations of fact and law were made to Judge Altimari at this Ruppert Chambers conference held after the July 25, 1985 House testimony that the nonacquiescence policy had ended on June 3, 1985. The appellant will inform the Second Circuit of his request that AG Holder read and apply the E.O. 13526 § 3.3 automatic declassification standard to the September 4, 1985 Ruppert case file notes if they are withheld as classified because the 25 year standard will trigger in 2010. (1985+25=2010). §§ E, F, G, L, M.
As per the July 27, 2010 DOJ FOIA request for the Ruppert v Bowen September 4, 1985 case file notes, the appellant will inform the Second Circuit that AG Holder has a duty to read those case file notes to learn whether on September 4, 1985 AAG of the Civil Division Willard, EDNY Chief Robert Begleiter, and EDNY AUSA Zwany informed Judge Altimari that Acting SSA Commissioner Mc Steen, SSA Chief Counsel Donald Gonya, and DAAG Carolyn Kuhl had testified at the July 25, 1985 House hearing that the “nonacquiescence” policy had ended on June 3, 1985, and that Jackson v. Schweiker, 683 F. 2d 1076 (7th Cir. 1982), was not a nonacquiescence case. This is a critical Ruppert fact because of the content of the FOIA requested “SG Lee’s 1982 Jackson” memo” and whether Acting AAG of the OLC Barron determines that the 1982 “Jackson nonacquiescence policy” of AAG of the OLC Olson is a 28 U.S.C. § 530D unclassified document to be released, or a classified document to be withheld pursuant to President Bush’s “exception” to protect the national security. §§ A, B, C, D, L, M, N.
Robert had requested this Ruppert conference to complain to Judge Altimari of HHS General Counsel del Real’s unfair rules of litigation engagement during the Ruppert litigation. He informed Judge Altimari that Special Agents were interrogating Robert’s SSI clients ex parte in their homes and asking questions to learn the legal advise that Robert was providing and the legal fees he charged. AG Holder will corroborate these facts when he reads the September 4, 1985 Ruppert case file notes along with the classified sealed Robert v Holz HHS “Fraud Against the Government” investigation of Robert documents and case file notes, and Robert VII v DOJ documents and case file notes that reveal the NSA TSP Robert wiretapping. §§ E, GG, AAA.
The information the DOJ attorneys provided Judge Altimari on September 4, 1985 tracks backwards to Judge George Pratt’s January 7, 1982 Ruppert remand decision. 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' arguments to apply the Jackson v. Schweiker standard to the NYS SSI recipients. However, Judge Pratt remanded plaintiff Ruppert's appeal to HHS Secretary Schweiker to determine whether there was a duty of the Secretary Schweiker to provide oral Notice to SSI recipients to explain the HHS standard that was being used to reduce plaintiff Ruppert’s monthly SSI benefits:
105 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.
As per the July 27, 2010 HHS FOIA request for the documents that reveal the HHS Secretary’s compliance with Judge Pratt’s January 7, 1982 Ruppert remand order, those HHS Ruppert compliance documents contain background facts that explain why the Kafkaesque Ford v Shalala due process violations continued in 1999 as explained in Judge Sifton’s September 29, 1999 Ford decision. The appellant placed U.S. Attorney Lynch on Notice of her K & A duty to read the HHS Ruppert remand documents to learn why the Ford due process violations continue 10 years after DAG Holder’s 2000 decision not to perfect her Ford appeal. §§ B, C, E.
On September 4, 1985, Judge Altimari held the Ruppert conference in his Chambers regarding Robert’s allegation that HHS General del Real was implementing unfair rules of litigation engagement. Robert observed approximately five USG attorneys in Judge Altimari’s Chambers. Upon information and belief, the attorney identified as being from “main Justice” was AAG of the Civil Division Willard. Upon information and belief, the “main Washington” attorney had had an ex parte communication with Judge Altimari prior to Robert being invited into the Ruppert Chambers conference. AG Holder can determine the name of the “main Washington” attorney by reading the September 4, 1985 Ruppert case file notes and asking EDNY AUSA Deborah Zwany, a 1984-2010 EDNY AUSA, who had submitted the USG’s February 22, 1985 Ruppert Brief on behalf of AAG of the Civil Division Willard. §§ E, F.
As per the July 27, 2010 DOJ FOIA request for the September 4, 1985 DOJ Ruppert case file notes, those documents reveal the DOJ September, 1985 litigation strategy and whether AAG of the Civil Division Willard was the “main Washington” attorney. If the documents are withheld pursuant to FOIA Exemption 5 and the attorney-client privilege, then AG Holder can read the documents to determine who was the “client” and whether the attorney-client privilege was properly applied. Given the gravity of the Robert’s allegations, AG Holder has a due diligence duty to read the September, 1985 Ruppert case file notes along with the de novo FOIA requested September, 1985 Robert II v CIA and DOJ “North Notebook” documents to learn whether FBI Executive Assistant Director of Investigations “Buck” Revell, a member of VP Bush’s Task Force on Terrorism, knew in September, 1985 that AAG of the Civil Division Willard knew HHS General Counsel del Real was a covered agent when he initiated the “Fraud Against the Government” investigation of Robert to eliminate opposing counsel §§ Y,AA, AAA.
106 The September 4, 1985 information that DOJ attorneys provided to Judge Altimari tracks forwards to the Second Circuit’s March 29, 1989 Ruppert decision. The September 4, 1985 Ruppert case file notes are evidentiary markers of the “Janus-faced” representations made to Judge Altimari, made to Judge Wexler when he rendered his October 9, 1987 Ruppert decision and made to the Second Circuit when it rendered its March 29, 1989 Ruppert decision. § G .
On October 10, 1985, Judge Sharpe approved a Jackson order requiring publication of the amendment to the SSI in-kind income regulation to comply with the Seventh Circuit's order in Jackson v. Schweiker, 683 F. 2d 1076, (7th Cir. 1982). This is an important time line fact not only because it proves false the July 25, 1985 sworn House testimony that the nonacquiescence policy had ended on June 3, 1985 and that Jackson was not a nonacquiescence case, but it established the October 10, 1995 mens rea of AAG of the Civil Division Willard that the July 25, 1985 testimony was uncured false House testimony and the “Jackson nonacquiescence policy” of HHS General Counsel del Real would continue. §§ P, Q, Z.
The October 10, 1985 mens rea of AAG of the Civil Division Willard is a “smoking gun” fact if HHS General Counsel del Real was a DIA-CIA-FBI covered agent, because on December 1, 1985 he would become IMC President Recarey’s Chief of Staff who administered the unaudited $20 million dollar voucher sent from HHS to IMC. Upon information and belief, these HHS funds were used to pay for medical supplies and treatment for the Contras in violation of the Boland Amendment. http://www.snowflake5391.net/IMC.pdf. §§ R, V, W, Y, Z.
On November 18, 1985, the appellant filed the FOIA Robert v Holz, cv-85-4205 (Wexler, J), FOIA complaint. He sought the universe of documents upon which was based HHS General Counsel del Real’s “Fraud Against the Government” investigation of Robert. This included the documents generated by the Special Agents who interrogated Robert’s clients ex parte in their homes to learn the legal advice Robert provided and legal fees he charged. § AAA.
On November 27, 1985, Ruppert counsel wrote a letter to President Reagan’s Chief of Staff Don Regan informing him that HHS Secretary Heckler was continuing to implement the “Jackson nonacquiescence policy” by not equally enforcing the SSI regulations in all 50 States. He cited to the July 25, 1985 House Judiciary Subcommittee testimony of Acting SSA Commissioner Mc Steen, SSA Chief Counsel Gonya, and DAAG Kuhl that the nonacquiescence policy had ended on June 3, 1985 and that Jackson was not a nonacquiescence case. He also advised of the Robert v Holz FOIA complaint seeking the release of the Robert “Fraud Against the Government” investigation documents to prove the unfair litigation practices of HHS General Counsel del Real implementing the “Jackson nonacquiescence policy” the House Subcommittee had been informed ended on June 3, 1985.
On December 3, 1985, Judge Bua rendered his Beckless v. Heckler decision and admonished HHS Secretary Heckler for not acquiescing to the Jackson decisions. “…it is unclear whether the Secretary has failed to perform her duties as a public official.” Id. 719. This was an important decision because it corroborated Robert’s allegation that HHS Secretary Heckler was violating the equal protection rights of SSI recipients who resided in the 49 states that were not Indiana. Upon information and belief, Judge Bua’s Beckless decision prompted Chief of Staff Regan to review the HHS nonacquiescence policy and take action. § R, T, U.
107 On December 13, 1985, President Reagan’s Chief of Staff Regan asked HHS Secretary Heckler to resign. President Reagan nominated her to be Ambassador to Ireland and she was confirmed in December, 1985. The President Reagan nominated Ronald Robertson to succeed HHS General Counsel del Real and he was promptly confirmed in December, 1985.
On February 12, 1986, Office of Legal Services (OLS) “Manny R” assigned Robert’s complaint against DOJ attorneys to the USG Snowflake # 5391 file that had been assigned to Robert. This document was released during the Robert v Holz litigation by an honorable and courageous USG attorney. http://www.snowflake5391.net/DOJ_OLS.pdf. §§ Y, AA.
On February 21, 1986, SSA Chief Counsel Gonya responded to Robert’s November 27, 1985 letter sent to Chief of Staff Reagan placing President Reagan on Notice of the Article II “take care” violation of the Jackson SSI income regulation not being equally enforced in all 50 States with the knowledge of HHS General Counsel del Real. “No issue of acquiescence or non- acquiescence is raised by claims filed in jurisdictions outside that circuit.” § R.
On April 21, 1986, HHS Secretary Bowen published the Jackson regulation, 20 C.F.R. § 416.1130(b), which expanded Judge Sharpe’s Indiana class order to include all three Seventh Circuit States, Indiana, Illinois, and Wisconsin. 51 F.R. 13487. This was contrary to the July 25, 1985 House Judiciary Subcommittee testimony and SSA Chief Counsel Gonya’s list of “nonacquiescence” cases presented to the Committee that did not include Jackson. § R.
On August 14, 1986, EDNY Chief Begleiter wrote his smoking gun letter to Attorney Advisor of the EOUSA Office of Legal Services (OLS) Attorney-Advisor Manuel Rodriguez that was an admission that July 25, 1985 House Judiciary Subcommittee testimony of DAAG Kuhl and SSA Chief Counsel Gonya that the “nonacquiescence” policy had ended on June 3, 1985 and Jackson was not a “nonacquiescence” case, was false testimony. In August, 1986, he was supervising the “Fraud Against the Government” investigation of Robert seeking Robert’s incarceration and disbarment. Chief Begleiter defended the 1982 “Jackson nonacquiescence policy” of HHS General Counsel del Real based on the extreme “Unitary Executive” theory:
There is, however, no duty on the part of the Department of Health and Human Services nor of the United States District Court for the Eastern District of New York to “acquiesce” or follow a Seventh Circuit decision and an Indiana district court decision applicable to an Indiana-only class in our district. Fundamental principles governing rulings by inferior federal courts dictate that one district need not accept as binding precedent the rulings of another district or of a Court of Appeals outside the district court’s circuit, unless an appropriate class is certified. Mr. Robert’s argument that it is somehow unlawful for the Secretary to treat Indiana residents differently from New York residents ignores the well accepted possibility of inconsistent decisions among district and circuit courts. As long as the law permits inconsistent rulings, there is no ethical violation in our arguing that Jackson decisions not be followed in the Eastern District of New York. Emphasis Added. http://www.snowflake5391.net/begleiter.pdf.
108 On March 23, 1987, SSA Chief Counsel Donald Gonya wrote his letter to ACUS explaining the SSA “revised acquiescence policy” as to court ordered regulations. He cited to the Jackson regulation and implied that the Jackson regulation, 20 C.F.R. 416.1130 (b), was being equally enforced in to all 50 States. He knew that Jackson continued to be a 1987 “nonacquiescence” case and that he had provided a false July 25, 1985 list of nonacquiescence cases. “Only occasionally is the rule making function involved in a Social Security acquiescence process when, for instance, a court requires the Secretary to issue regulations.” §§ R, T, U.
On August 14, 1987, the appellant requested that DAG Arnold Burns review the Ruppert litigation decisions of AAG of the Civil Division Willard and EDNY AUSAs who were implementing the “Jackson nonacquiescence policy” contrary to the sworn July 25, 1985 that the “nonacquiecence” policy had ended on June 3, 1985. He cited to Chief Begleiter’s August 14, 1986 letter sent to EOUSA Attorney Advisor Rodriguez and complained that EDNY Chief Begleiter at the same time was supervising the Ruppert litigation, the “Fraud Against the Government” investigation seeking Robert’s incarceration and disbarment, and the Robert v Holz FOIA seeking the release of the HHS “Fraud Against the Government” documents that revealed whether HHS General Counsel del Real had been a 1982-1985 covered agent.
On October 9, 1987, Judge Wexler, who was assigned Ruppert when Judge Altimari became a Second Circuit Judge, decided Ruppert v. Bowen, 671 F. Supp. 151 (EDNY 1987). Judge Wexler rejected the plaintiffs’ argument that the “Jackson” regulation should be equally applied to the plaintiffs because the nonacquiescence policy was to have ended as per the July 25, 1985 House Judiciary Subcommittee testimony and the intent of Congress that the SSI regulations were be applied uniformly in all 50 states. The plaintiffs appealed the decision.
On November 12, 1987, AAG of the Civil Division Willard responded to Robert’s August 14, 1987 complaint filed with DAG Arnold Burns. He advised complainant Robert that he had given “careful scrutiny” to the allegations made in the letter to DAG Burns:
This is in response to your letter of August 14, 1987 to Deputy Attorney General Arnold I. Burns, inasmuch as your letter raises questions concerning the internal affairs of the Justice Department as well as matters which are currently in litigation, I am not at liberty to discuss the details of these matters with you.
While I cannot discuss the specifics of your allegations of a cover-up within the Department of Justice regarding the policies of the Department of Health and Human Services, or your allegations of misrepresentations by the Department of Justice to federal courts, please rest assured that the concerns raised by your letter have been given careful scrutiny. However, I have concluded that your allegations are without foundation.
Finally insofar as you allege that you are the target of a civil and criminal investigation by the Department of Justice, please be advised that the Department of Justice does not comment on such matters. Emphasis Added. http://www.snowflake5391.net/aagwillard.pdf.
109 Because the Jackson regulation was not being equally applied in all 50 States, Ruppert counsel presented the equal protection issue directly to VP Bush. He explained how the HHS nonacquiescence policy resulted in a federal regulation only being applied in the Seventh Circuit states. On March 3, 1988, VP Bush graciously responded to the letter and advised that he agreed that regulations should be applied equally and sent the issue to his staff:
We cannot agree more on the importance of ensuring that government regulations treat all citizens equally. The more the Federal government grows, the greater the possibility that regulations come into conflict. I strongly support efforts that help every American receive all the benefits rightfully due him or her.
Since your letter deals with such a specific topic, I have turned it over to the people on my staff who handle this issue. They will give this matter their attention. Emphasis Added. http://www.snowflake5391.net/3-3-88%20V.%20Pres%20Bush.pdf.
Upon information and belief, VP Bush’s staff member that reviewed the HHS “nonacquiescence” policy issue was VP Counsel C. Boyden Gray, an administrative law expert. Upon information and belief, he consulted with AAG of the Civil Division John Bolton, who had succeeded AAG of the Civil Division Willard, who also was an administrative law expert.
On May 5, 1988, AAG of the Civil Division John Bolton sent his letter to ACUS and explained the DOJ-HHS “silent nonacquiescence policy” of 1988. His explanation was contrary to the July 25, 1985 testimony that the “nonacquiescence” policy had ended. This too is a “smoking gun” letter because in 2007 AAG of the Civil Division Keisler and SSA Commissioner Astrue relied upon this DOJ “silent nonacquiescence policy” as the legal basis for their decision not to acquiesce to the Jackson and the Ruppert “actual economic benefit” holdings by not citing to the Jackson regulation in the 2007 Ford “remedy” Notices. “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.” §§ P, Q, R, T, U, W.
Ruppert counsel filed a complaint with OPR Director Michael Shaheen that Ruppert DOJ attorneys were defending the HHS “silent nonacquiescence policy” contrary to the July 25, 1985 House Judiciary Committee. On January 9, 1989, OPR Director Shaheen explained that the new "Thornburgh-Giuliani" policy was to acquiesce to federal court decisions, unless there was a good faith argument for an extension, modification, or reversal of existing law:
Because this Office reviews allegations of misconduct brought against Department of Justice employees, your letter to Assistant United States Attorney Charles B. La Bella, dated April 2, 1988, was referred to us by U.S. Attorney Rudolph A. Giuliani for consideration. Your letter to Mr. LaBella dealt with the alleged misconduct of several Assistant United States Attorneys and other Department of Justice employees by virtue of their continued assertion of "non-acquiescence' in defending Health and
110 Human Services cases brought by Supplemental Security Income recipients.
Although, in our view, the position adopted by Mr. Giuliani's office -- not to defend the Secretary of Health and Human Service's non-acquiescence policy -- is the correct legal formulation, we do not accept the proposition that espousal of non-acquiescence by other U.S. Attorneys' offices constitutes misconduct. We believe that non-acquiescence is a defense that can be supported by a good faith argument for an extension, modification, or reversal of existing law and, thus, does not violate the Code of Professional Responsibility. Emphasis added. http://www.snowflake5391.net/1-9-89Shaheen.pdf.
In his Second Circuit Ruppert Brief, Ruppert counsel argued that DOJ attorneys had made “Janus faced” representations of fact and law to Judge Altimari and then to Judge Wexler. Ruppert’s “Janus-faced” allegation was based on the July 25, 1985 House testimony that the “nonacquiescence” policy had ended on June 3, 1985, that Jackson was not a nonacquiecence case, and that Congress intended that the SSI regulations be applied equally in all 50 States. He argued that the Second Circuit should reverse Judge Wexler’s decision and apply the Seventh Circuit Jackson “actual economic benefit” standard whereby the Jackson regulation would be equally applied in all 50 States. He argued that the Court should instruct HHS Secretary Bowen to amend the Jackson SSI income regulation to equally apply in all 50 States.
On March 29, 1989, the Second Circuit affirmed Judge Wexler’s decision, and rejected the appellant’s argument that the DOJ was making “Janus-faced” arguments to the Court:
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 Services, HHS News (June 3, 1985) (Press release); Office of Hearings and Appeals Staff Guides and Programs 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. 1177. Emphasis Added.
111 However, the Second Circuit did adopt the Jackson “actual economic benefit” analysis of income when determining if income is “actually available” to the SSI recipient:
What this means for the appellants here is that if the proportion of income that they expend on shelter is so great that "it flies in the face of reality to conclude that 'unearned income' in the form of subsidized shelter . . . is 'actually available' to the recipient," see Jackson, 683 F.2d at 1085, the unearned income should be disregarded. Id. 1180. Emphasis Added. The Second Circuit remanded the cases for HHS Secretary Sullivan to apply the “actual economic benefit” standard, but did not require that the Secretary adopt the Jackson regulation: The district court should determine whether the imputed income reflected any "actual economic benefit." The regulations used in the Seventh Circuit might provide a good indication of that, though we do not necessarily require their adoption as a matter of law. Id. 1180-1181.
Solicitor General Kenneth Starr and 1988-1989 HHS General Counsel Malcolm Sterrett decided not to file a petition for a writ of certiorari. As a result, the Ruppert cases were remanded to HHS Secretary Sullivan to apply the “actual economic benefit” standard to the plaintiffs.
President Bush nominated his Associate WH Counsel Astrue to succeed HHS General Counsel Sterrett. HHS General Counsel Nominee Astrue had been the 1985 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 Bush.
On June 22, 1989, President Bush’s HHS General Counsel Nominee testified at his Senate confirmation hearing that the nonacquiescence policy had ended. Senator Moynihan asked him to explain in layman’s terms the HHS-SSA nonacquiescence policy:
Mr. Astrue: Non-acquiescence is a policy that the Social Security Administration has from sometime in the early sixties through the mid eighties in which they would refuse to acknowledge the precedential value of a court of appeals decision within the jurisdiction of that court of appeals and it is an area that concerned me.
I prevailed in 1985 in insisting that summaries of non-acquiescence rulings be published in the Federal Register. There was a dispute about that at one point in the Department. The Notice of proposed rulemaking terminating the Social Security Administration’s policy of non-acquiescence was largely a project which I got started within the agency. Id. at p. 20. Emphasis Added. http://www.snowflake5391.net./Astrue_6_22_89.pdf.
His June 22, 1989 Senate testimony was the basis for his January 24, 2007 testimony. “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.” §§ B, C, T, U.
112 After his confirmation, HHS General Counsel Astrue had an opportunity to “make true” his June 22, 1989 Senate Finance Committee testimony and end the 1982 “Jackson nonacquiescence policy” of HHS General Counsel del Real by recommending to HHS Secretary Sullivan that he amend the Jackson regulation and apply it equally in all 50 States. However, notwithstanding his own June 22, 1989 Senate Finance Committee testimony, he determined that the Second Circuit had “incorrectly” decided Ruppert and that the Jackson regulation, 20 C.F.R. § 416.1130 (b), would not be amended to apply to all 50 States. As a result, his June 22, 1989 testimony, like his January 24, 2007 testimony, remains in 2010 as uncured false testimony.
On July 16, 1990, HHS General Counsel Astrue issued the Second Circuit “Ruppert Acquiescence” Ruling. http://www.ssa.gov/OP_Home/rulings/ar/02/AR90-02-ar-02.html. If asked, SSA Commissioner Astrue will explain why the cleverly named “acquiescence” ruling is not a “Ruppert nonacquiescence policy” that is contrary to his June 22, 1989 Senate testimony because the Jackson regulation continued to be only applied to the Seventh Circuit states. § U.
HHS General Counsel Astrue decided that the Second Circuit’s “actual economic benefit” holding, which mirrored the Seventh Circuit’s 1982 Jackson “actual economic benefit” holding, would continue not be implemented in any other states because the Jackson regulation, 20 C.F.R. § 416.1130(b), standard would continue to only apply in the Seventh Circuit States. This was contrary to his sworn January 22, 1989 testimony to the Senate Finance Committee:
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 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. 2. Emphasis Added. HHS General Counsel Astrue had another opportunity to “make true” his June 22, 1989 Senate Finance Committee testimony when SSA Associate Commissioner Louis Enoff presented him with a June 14, 1991 “Rental Subsidies Decision” memo. This “Decision” memo framed the equal protection problem caused by not having the private rent subsidies standard applied equally in all 50 States when applying the Jackson regulation, 20 C.F.R. 416.1130(b):
1. OPTION: Change national policy to eliminate consideration of rental subsidies as income.
DISCUSSION: This option could be achieved through a regulatory change to provide that a rental subsidy is not income. The rationale would be that whatever rent is required represents the current market rental value. This approach would eliminate the only area of in-kind support and
113 maintenance in which we question the amount of a vendor’s charge in determining whether someone is receiving income. Further discussion redacted.
2. OPTION: Adopt the Jackson rule as national policy.
DISCUSSION: Under this option, we would consider that no in-kind support and maintenance arises from an arrangement whereby the required rent equals or exceeds the presumed maximum value. If the required rent is less than the presumed value, the amount of the rental subsidy would be the difference between the required rent and either the presumed value or the current market rental value, whichever is lower. This option would allow a uniform national rule. It would require a regulations change. Further discussion redacted.
3. OPTION: Maintain the status quo; i.e., maintain current national policy for all but the Seventh and Second Circuits.
DISCUSSION: Under this option, the Jackson rule would continue to apply in the Seventh and Second Circuits. In these circuits, therefore, where the required rent equals or exceeds the presumed maximum value, in-kind support and maintenance will not be found as a result of that arrangement. If the required rent is less than the presumed maximum value, the amount of the rental subsidy would be the difference between the required rent and the presumed maximum value or current market rental value, whichever is less. In all other circuits, however, we would continue to consider the difference between the current market rental value and the amount of rent charged as a rental subsidy. The amount of in-kind support and maintenance charged the individual would be subject to the presumed maximum value. Further discussion redacted. Emphasis Added. http://www.snowflake5391.net/6-14-91%20Enoff%20re%20Jackson.pdf.
As per the July 27, 2010 de novo HHS FOIA request, the appellant requested the release of the unredacted memo and Tabs. If his offer of a quiet settlement is rejected and the de novo appeal is denied, then these will be documents sought in his 2010 Motion for a pre-clearance order. He will also present the redacted memo to the Senate Finance Committee as evidence that SSA Commissioner Astrue lied to the January 24, 2007 Senate Finance Committee when he testified that he had ended the nonacquiescence policy prior to June 22, 1989. §§ A, YY, ZZ.
Robert placed U.S. Attorney Lynch on Notice that this June 14, 1991 Rental Subsidies document, when read along with the July 16, 1990 “Ruppert Acquiescence” ruling, is “smoking gun” evidence that SSA Commissioner Nominee Astrue’s January 24, 2007 Senate Finance Committee testimony that the “nonacquiescence” policy had ended prior to his becoming HHS General Counsel, was false testimony. He placed U.S. Attorney Lynch on Notice of her 28 U.S. §535 (b) duty to report to AG Holder her knowledge that SSA Commissioner Nominee Astrue lied in his Senate testimony because the nonacquiescence policy continues in July, 2010. § D
114 Robert placed U.S. Attorney Lynch on Notice of her K & A duty to read the September 4, 1985 Ruppert case file notes along with AUSA Zwany’s February 22, 1985 Ruppert Brief and DAAG Kuhl’s July 25, 1985 testimony, and answer the “Jackson” question. Robert placed U.S. Attorney Lynch on Notice of her K & A duty to read the September 4, 1985 Ruppert case file notes along with the June 22, 1989 Senate testimony of HHS General Counsel Nominee Astrue and the February, 1996 Gordon Brief of SG Days, and solve the Gordon riddle as to whether HHS General Counsel Nominee Astrue had lied to the Senate Finance Committee that the nonacquiescence policy had ended or SG Days had provided false information to the Supreme Court in the Gordon Brief defending the 1984-1996 HHS nonacquiescence policy. §§ G, T.
Robert placed U.S. Attorney Lynch on Notice that she has an April 1, 2009 NYS Professional Model Rules Rule 3.3 duty to cure the prior misrepresentations of fact and law made to Judge Wexler and the Second Circuit in Ruppert and to the Second Circuit and the Supreme Court in Gordon. “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.” §§ E , T.
Robert placed U.S. Attorney Lynch on Notice that she has a NYS Judiciary Law § 487 duty not to deceive millions of 2010 Ford v Shalala class members by not providing Ford “remedy” Notices that cite to the SSI income regulation given the admissions in the July 16, 1990 Ruppert “Acquiescence Ruling, the June 14, 1991 Rental Subsidies memo, and the DOJ Briefs submitted in Gordon. “1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or …” Emphasis Added. §§ F, G, H, T.
Robert placed U.S. Attorney Lynch on Notice that she has an duty to request that EDNY Chief Judge Dearie assign a successor to Judge Sifton in Ford v Shalala in order that the new Judge can approve a Ford “remedy” that cures the due process violations. If after reading the Ruppert, Gordon, and 2001-2007 Ford case file notes and e-mails U.S. Attorney Lynch takes no action, then U.S. Attorney Lynch may have committed a fraud upon the court by application of the Chambers v Nasco standard that could trigger an investigation to protect the integrity of the judicial process in a nationwide class action case. “Moreover, a court has the power to conduct an independent investigation whether it has been the victim of a fraud.” Id. at 2132. § G, Z.
Robert placed U.S. Attorney Lynch on Notice that if the July 27, 2010 request for the release of the September 4, 1985 documents is denied, that this will be one of the documents sought in his 2010 Motion filed with Judge Garaufis seeking a pre-clearance order to file a putative FOIA action. He will argue that pursuant to the Second Circuit’s Dinler v City of New York decision, Judge Garaufis is to read in camera the September 4, 1985 documents along with the classified Robert v Holz, and Robert VII v DOJ documents to determine whether AAG of the Civil Division Willard was the “main Washington” attorney. If so, then she will know whether he made “Janus faced” representations of fact and law to Judge Altimari on September 4, 1985 with the intent to commit a fraud upon the court given the July 25, 1985 House testimony that the HHS-SSA-DOJ nonacquiescence policy had ended on June 3, 1985. §§ D-H, XX, AAA.
Hence, the importance of U.S. Attorney Lynch reading the September 4, 1985 Ruppert case file notes. If classified, then Robert will be requesting automatic declassification. §§ L, M
115 T. U.S. Attorney Lynch’s K and A duty to read the 1995-1996 Gordon v Shalala Briefs submitted to the Second Circuit and Supreme Court, case file notes, and e-mails, and to solve the Gordon riddle whether SSA Commissioner Astrue’s January 24, 2007 Senate testimony that the “nonacquiescence” policy had ended prior to 1989 was false, or whether DOJ attorneys made misrepresentations of fact and law to the Second Circuit and the Supreme Court in the Gordon Briefs defending the DOJ-HHS “nonacquiecence” policies
The appellant placed EDNY U.S. Attorney Lynch on Notice of her K & A duty to read the 1995-1996 Gordon v Shalala, 55 F.3d 101 (2d Cir. 1995), cert. den, 517 U.S. 1103 (1996), Briefs submitted the Second Circuit and Supreme Court, case file notes, and e-mails and solve the Gordon riddle whether SSA Commissioner Astrue’s January 24, 2007 Senate testimony that the nonacquiescence policy had ended prior to 1989 was false, or whether DOJ attorneys made misrepresentations of fact and law to the Second Circuit and Supreme Court in their Gordon Briefs defending the HHS nonacquiescence policies. After U.S. Attorney Lynch reads the 1986-1996 Gordon signed pleadings, case file notes, and e-mails, she will know that if SSA Commissioner Astrue’s January 24, 2007 Senate testimony was not false, then she has a NYS Rule 3.3 ethics duty to correct misrepresentations of fact and law made to the Courts. § E.
From 1994-1998 EDNY Long Island Chief Lynch was the supervising attorney of EDNY AUSA Bruce Nims who was HHS Secretary Shalala’s lead EDNY counsel in Gordon that had been filed in 1986. Gordon became one of the “Ruppert” cases that was subject to HHS General Counsel Astrue’s July 16, 1990 “Ruppert Acquiescence” Ruling that he issued after the Second Circuit’s March 29, 1989 Ruppert decision. In an October 10, 1990 letter to Ruppert- Gordon counsel, HHS Chief Regional Counsel Blum determined that Gordon should be adjudicated by application of the “Ruppert Acquiescence” Ruling. “If an administrative determination or decision was made between March 29, 1989, the date of the Second Circuit’s decision in Ruppert, and July 16, 1990, the claimant may request that the agency re-adjudicate his or her claim using the acquiescence ruling.” http://www.snowflake5391.net/blum.pdf.
Plaintiff Gordon requested a readjudication of her appeal. HHS Secretary Sullivan affirmed the decision to apply the “Jackson nonacquiescence policy” and continued to reduce her federal SSI benefits by one-third. Plaintiff Gordon appealed that decision. Judge Spatt reversed HHS Secretary Sullivan’s decision and applied the Jackson holding to the Gordon facts. EDNY U.S. Attorney Carter appealed Judge Spatt’s Gordon decision. As a result, the issue of the validity of HHS General Counsel Astrue’s July 16, 1990 “Ruppert Acquiescence” Ruling that determined that the Second Circuit had “incorrectly” decided Ruppert, was ripe for the Second Circuit’s review of both the Jackson and Ruppert “actual economic benefit” holdings.
Meanwhile on April 9, 1994, the Ford v Shalala complaint was filed and the plaintiffs sought a nationwide class certification Order. If Judge Sifton granted the plaintiff’s Motion for a Ford v Shalala nationwide class, then the Second Circuit’s 1995 Gordon decision would become the standard that would be applied to the nationwide Ford class. Given the high Gordon legal stakes, Gordon counsel wrote a letter to WH Counsel Abner Mikva requesting that he review AG Reno’s decision to defend HHS Secretary Shalala’s 1995 Gordon Second Circuit litigation position of applying the Jackson regulation, 20 C.F.R. § 416.1130 (b), to reduce benefits of millions of SSI recipients residing in the 47 States that were not the Seventh Circuit States.
116 In his January 17, 1995 responsive Gordon letter to Robert, WH Counsel Mikva referred the Gordon nonacquiescence policy issue to Associate AG John Schmidt:
Because the Department of Justice is representing the defendants in the pending litigation we have forwarded your correspondence and enclosures to the Associate Attorney General for any appropriate action.” Emphasis Added. http://www.snowflake5391.net/mikva.pdf.
Upon information and belief, 1994-1997 Associate AG John Schmidt read the Gordon documents and provided WH Counsel Mikva with a follow-up memo that explained why it was necessary to continue to implement the 1982 “Jackson nonacquiescence policy” in 1995. AAG of the OLP Schroeder, the 1995-1997 Deputy Associate AG, has a 2010 duty to read the “1995 Associate AG Gordon” memo requested in the July 27, 2010 FOIA request. §§ N, EE, FF, GG.
On May 22, 1995, the Second Circuit decided Gordon and deferred to the arguments made by AUSA Nims and AAG of the Civil Division Frank Hunger that defended HHS General Counsel Astrue’s 1990 Ruppert “Acquiescence Ruling” that the Jackson regulation, 20 C.F.R. 416.1130 (b), only applied to Seventh Circuit SSI recipients. The Second Circuit panel rejected appellee Gordon’s argument that HHS Secretary Shalala and AG Reno had an Article II duty to enforce the Jackson regulation equally in all 50 States based on the July 25, 1985 House testimony that the nonacquiescence policy had ended on June 3, 1985:
The Ruppert Acquiescence Ruling was interpretative not substantive. It did not create rights or impose obligations. It merely interpreted this Court’s mandate in Ruppert to the effect that imputed income must provide the SSI recipient with an “actual economic benefit.” It was not subject to the notice and comment requirements of the APA. Id. 108. Emphasis Added.
Appellee Gordon filed a petition for a writ of certiorari. In February, 1996 Solicitor General Drew Days and AAG of the Civil Division Hunger filed the USG’s Gordon Brief in opposition. They defended the 1982 “Jackson nonacquiescence policy” and the 1986 “Jackson” regulation, 20 C.F.R. § 416.1130(b), only applying to Seventh Circuit states. They informed the Court that the HHS nonacquiescence policy was based on the Supreme Court’s 1984 U.S. v Mendoza INS offensive collateral estoppel holding which 1984-1996 HHS General Counsels had advised Secretaries Schweiker, Heckler, Sullivan, and Shalala applied to SSI recipients:
“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).” Id. 11, n. 4. http://www.usdoj.gov/osg/briefs/1995/w95955w.txt.
117 The Supreme Court denied the Gordon petition for a writ of certiorari. As a result, the “Ruppert Acquiescence” ruling became the law of the Circuit because in its May 22, 1995 Gordon decision the Second Circuit has adjudicated its validity. This is an important fact because on March 31, 1995 SSA had become an independent agency from HHS.
The first SSA General Counsel Arthur Fried, grandfathered-in HHS nonacquiescence policies. This included the 1982 “Jackson nonacquiescence policy” of HHS General Counsel del Real and 1990 “Ruppert nonacquiescence policy” of HHS General Counsel Astrue. §§ R, S.
On July 2, 1996, he formalized the SSA “nonacquiescence” policy with SSR 96-1p:
POLICY INTERPRETATION RULING APPLICATION BY THE SOCIAL SECURITY ADMINISTRATION (SSA) OF FEDERAL CIRCUIT COURT AND DISTRICT COURT DECISIONS:
PURPOSE: To clarify longstanding policy that, unless and until a Social Security Acquiescence Ruling (AR) is issued determining that a final circuit court holding conflicts with the Agency's interpretation of the Social Security Act or regulations and explaining how SSA will apply such a holding, SSA decisionmakers continue to be bound by SSA's nationwide policy, rather than the court's holding, in adjudicating other claims within that circuit court's jurisdiction. This Ruling does not in any way modify SSA's acquiescence policy to which the Agency continues to remain firmly committed, but instead serves to emphasize consistent adjudication in the programs SSA administers. This Ruling is also issued to clarify longstanding Agency policy that, despite a district court decision which may conflict with SSA's interpretation of the Social Security Act or regulations, SSA adjudicators will continue to apply SSA's nationwide policy when adjudicating other claims within that district court's jurisdiction unless the court directs otherwise. Emphasis Added. http://www.socialsecurity.gov/OP_Home/rulings/di/10/SSR96-01-di-10.html
SSA General Counsel Fried did not reconcile SSR 96-1p with the June 24, 1989 Senate Finance Committee testimony of Associate WH Counsel Astrue that the nonacquiescence policy had ended. This fact has July, 2010 significance because on September 29, 1999, Judge Sifton rendered his Ford decision and certified an April 9, 1994 nationwide class. Danielle Gordon is a Ford v Shalala class member who has never received a Ford remedy Notice that cited to the Jackson regulation, 20 C.F.R. § 416.1130 (b), which codified the “Jackson nonacquiescence policy” of HHS General Counsel del Real, which Associate WH Counsel Astrue had testified had ended prior to his becoming the 1989 HHS General Counsel. §§ C, U.
In 1999 U.S. Attorney Lynch was confronted with the equal protection issue because the Second Circuit’s 1995 Gordon decision stated the SSA national standard had been applied to reduce the 1994-1999 benefits of millions of Ford v Shalala class members. Upon information and belief, without the knowledge of 2000 SSA Commissioner Apfel, SSA General Counsel Fried requested that AAG of the Civil Division Hunger appeal the Ford decision. §§ C, F, H.
118 The issue of whether the SSA Commissioner Apfel or SSA General Counsel Fried made the SSI Jackson “interpretative” decisions was presented in the 2000 decision whether to appeal Ford. The same equal protection Jackson and Ruppert “nonacquiescence” policy issue framed in SSA Deputy Commissioner Enoff’s June 14, 1991 “Rental Subsidies Decision” memo that existed in 1991, existed in 2000, and continues to exist in 2010. It is unclear whether 1989-1992 SSA Commissioner King ever made the 1991 affirmative decision not to choose the options to end the Jackson and Ruppert “nonacquiescence” policies and equal protection violation. The June 19, 1991 Memo’s Tab D attachment reveals HHS General Counsel Astrue’s comments. http://www.snowflake5391.net/6-14-91%20Enoff%20re%20Jackson.pdf. §§ R, FF.
The July 27, 2010 FOIA requests for the release of the unredacted June 14, 1991 “Rental Subsidies Decision” memo and Tabs will reveal not only SSA Commissioner King’s decision, but the comments of HHS General Counsel Astrue. 2010 SSA Chief FOIA Officer SSA General Counsel David Black will read the unredacted document and the TABs and know whether the January 24, 2007 Senate Finance Committee testimony of SSA Commissioner Astrue, his client, that the nonacquiescence policy ended prior to 1989 remains as false Senate testimony as evidenced by the admissions in his June 14, 1991 Tab D comments. §§ A, C, D- J, R, FF, ZZ.
Upon information and belief, SSA General Counsel Fried instructed U.S. Attorney Lynch to file the 2000 Ford appeal because he understood the consequences if Judge Sifton’s Ford certified nationwide class order was not reversed. He knew that if the Jackson regulation, 20 C.F.R. § 416.1130 (b), was cited in the Ford Notices sent to remedy the Ford due process violations, then millions of SSI recipients residing in the 47 states that were not the Seventh Circuit States, would be alerted to the equal protection issue and their appeal rights. Upon information and belief, when DAG Holder made his honorable October, 2000 decision not to perfect the Ford appeal, he understood this equal protection and due process conundrum that resulted from the 1995 Second Circuit’s Gordon decision and SSR 96-1p. §§ C, YY, ZZ.
Upon information and belief, AAG of the Civil Division Ogden, the 1994 -1995 DOD Deputy General Counsel, also knew that the end of the “Jackson nonacquiescence policy” would end the off-Budget funding of the “do not exist” 1984-1999 NSA TSP data banks. If so, then former-DAG Ogden’s 1995 knowledge of Associate AG Schmidt’s Gordon decision to continue to defend the Jackson and Ruppert nonacquiescence policies in 1995, has “smoking gun” significance if the need to maintain the off-OMB Budget sources to pay for the NSA TSP data banks was a factor in his 1999 decision that U.S. Attorney Lynch file the Ford appeal. §§ P, CC.
Because of SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee testimony that the nonacquiescence policy had ended prior to his becoming HHS General Counsel in 1989, the appellant placed U.S. Attorney Lynch on Notice that she has a K & A duty to read the 1989-1996 FRCP 11 signed Gordon pleadings, DOJ case file notes, and DOJ e-mails. This included the 1995-1996 Gordon Briefs filed in the Second Circuit and the Supreme Court and the “AAG Hunger-Gordon” documents which were the documents upon which AAG of the Civil Division Hunger relied when he assisted SG Days on the February, 1996 Gordon Brief that defended the “Jackson nonacquiescence policy” of HHS General Counsel del Real. She will learn that the argument was contrary to Associate WH Counsel Astrue’s June 22, 1989 Senate Finance Committee testimony that the HHS “nonacquiescence” policy had ended prior to 1989.
119 The appellant also placed U.S. Attorney Lynch on Notice that she has a duty to read DOJ Robert v U.S. Department of Justice, 2001 WL 34077473 (EDNY), 26 Fed. Appx. 87 (2d Cir. 2002), case file notes and e-mails of AUSA Mahoney and 1999-2001 AAG of the Civil Division David Ogden. In that FOIA action, Robert sought the release of a mosaic of FOIA requested DOJ documents that included the “AAG Hunger-Gordon” and the “Starr” documents. The “Starr” documents were documents that on May 4, 1991 Robert had hand-delivered to SG Starr requesting his review of the 1982 “Jackson nonacquiecence policy” of HHS General Counsel del Real and the 1990 “Ruppert nonacquiescence policy” of HHS General Counsel Astrue, and the documents relied upon by Acting Deputy Solicitor General Wright when he wrote his May 15, 1991 response which defended the 1991 DOJ-HHS-SSA “nonacquiecence” policy. § W.
As to the “AAG Hunger-Gordon” documents, in his March 22, 2001 decision, Judge Mishler explained how the Second Circuit “custody and control” rule was applied to the DOJ’s compartmentalized units whereby FOIA requested DOJ documents were transferred from one DOJ unit to another, but the DOJ FOIA request did not follow the DOJ documents:
Plaintiff claims that these “AAG Hunger-Gordon” documents have been wrongfully “withheld” in violation of the FOIA. However, as none of the agencies to which plaintiff submitted these “AAG Hunger-Gordon” requests were able to locate any responsive documents at the time of plaintiff's request, plaintiff has not demonstrated a viable FOIA claim. With respect to the request made to United States Attorney Carter, Assistant United States Attorney Mahoney declares that “all responsibility for the [Gordon III v. Secretary] case was transferred to the Solicitor General” and thus, “the Office of the United States Attorney [could not] respond to plaintiff's request” because that “office did not participate in the preparation of the brief.” Declaration of Kathleen A Mahoney ¶¶ 5-6. Similarly, it is clear that at the time that plaintiff made his request to the Solicitor General's Office, that office no longer had custody and control over any responsive “AAG Hunger-Gordon” documents. Harriet Shapiro, Assistant to the Solicitor General, declared that her office does not retain materials used in preparing discrete files after the Supreme Court has acted on a case. Thus, at the time that plaintiff made his request, in February 1998, almost two full years after the Supreme Court denied the petition for certiorari in Gordon III v. Secretary, the Solicitor General's Office no longer had any documents responsive to plaintiff's “AAG Hunger-Gordon” request. Declaration of Harriet S. Shapiro ¶ 5. Accordingly, plaintiff has not shown that the DOJ “withheld” any “AAG Hunger-Gordon” documents from him in violation of the FOIA. Id. 3. Emphasis Added.
As to the “Starr” documents, Judge Mishler determined that Assistant Solicitor General Shapiro had responded and provided the 1995 FOIA requested 1991 “Starr” documents. Judge Mishler’s decision indicated that that FOIA Officer Assistant SG Shapiro had in 1995 released “all responsive” documents to Robert in 1995. Thus, SG Days had an opportunity to read the “Starr” documents prior to drafting and signing off on the SG’s February, 1996 Gordon Brief:
120 Plaintiff cannot succeed on a claim arising out of his repeated requests for “Starr” documents because the record is clear that the DOJ responded to plaintiff's first request for such information and released all responsive documents to plaintiff in 1995. It is undisputed that plaintiff first requested the “Starr” documents in a letter dated September 19, 1995. Notwithstanding the fact that Harriet Shapiro, Assistant to the Solicitor General and designated Freedom of Information Act Officer for the Office of the Solicitor General, responded to plaintiff's request by letter dated September 27, 1995, enclosing the requested documents, plaintiff has since made several repetitive requests for the “Starr” Documents. Ms. Shapiro asserts that, although she responded to plaintiff's second request for “Starr” documents, dated March 21, 1996, by referring plaintiff to her September 27, 1995 letter and the enclosed documents, she did not respond to plaintiff's February 28, 1998 letter because she recognized it as being merely duplicative. Declaration of Harriet S. Shapiro, ¶¶ 4 and 5 and Exs. A, B and C. Accordingly, the DOJ has fully responded to plaintiff's request for “Starr” documents. Id. 4. Emphasis Added.
The appellant never received the “enclosed Starr” documents. In his July 27, 2010 FOIA request, the appellant has requested de novo the “enclosed Starr” documents that he never received, along with a de novo request for the “SG AAG Hunger Gordon” documents” which the SG FOIA Officer will locate in the SG’s archived Gordon file. In the July 27, 2010 FOIA request the appellant also requested the “1995 Associate AG Gordon” documents that will reveal the action taken by Associate AG Schmidt after he reviewed the Gordon documents that WH Counsel Mikva had forwarded pursuant to his January 17, 1995 letter to the appellant. § GG.
As per the July 27, 2010 letter to AAG of the OLP Schroeder, in April 1995 he was the Deputy Associate Attorney General. He had been 1993-1994 Counselor AAG of the OLC Dellinger. When AAG of the OLP Schroeder performs his K & A duty to answer for AG Holder the how-it-could-have-happened Jackson question that appellant Robert presented to the Second Circuit in his December 18, 2009 Robert VIII v DOJ, HHS, and SSA Motion seeking a pre-argument CAMP settlement conference, he can cite to the “Starr”, “SG AAG Hunger- Gordon”, and “1995 Associate AG Gordon” fertile historical legal research documents. AG Holder needs to know the answer to the Jackson question because he has the 2010 duty to end during his Constitutional watch the Ford due process violations that continue in July, 2010. § C.
Those 1995 Gordon documents also provide an answer to the Gordon riddle as to whether Associate WH Counsel Astrue provided false information to the June 22, 1989 Senate Finance Committee that the nonacquiescence policy had ended, or SG Days and AAG of the Civil Hunger provided false information to the Supreme Court in the USG Gordon Brief that the 1984-1996 HHS nonacquiescence policy did not end, but was based on the 1984 INS Mendoza decision. This is a timely 2010 question for AAG of the OLP Schroeder to answer because in 2010 SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee remains as uncured false testimony because SSA Commissioner Astrue continues to “rig” the 2010 SSA computer to apply the 1982 “Jackson nonacquiescence policy” to deny millions of 2010 Ford class members the benefits appropriated by the Congress. §§ A, C, D-H, K, P, Q, Z.
121 As per the July 27, 2010 letter to AAG of the OLP Schroeder, the appellant suggested that he consider contacting SG Kagan for her opinion as the Tenth Justice whether it is the SG’s 2010 position to defend SSA Commissioner Astrue’s 2010 “Jackson nonacquiescence policy” as did SG Days in 1996. This is a timely inquiry because SSA Commissioner Astrue’s 2010 “Jackson nonacquiescence policy” affects millions of July, 2010 Ford class members. § J.
On June 28, 2010, in her opening statement at the Senate Judiciary Committee, SG Kagan highlighted the role of the Supreme Court to protect the “rule of law” principle:
“And what the Supreme Court does is to safeguard the rule of law, through a commitment to even-handedness, principle, and restraint.” Id. 1. http://judiciary.senate.gov/pdf/06-28-10%20Kagan%20Testimony.pdf
SG Kagan could exercise this important SG “even-handedness” principle in her final weeks at the SG if she reads the July 27, 2010 FOIA requested “AAG Hunger-Gordon” document. Then she can solve the Gordon riddle whether Associate WH Counsel Astrue’s June 22, 1989 Senate Finance Committee testimony that the “nonacquiescence” policy had ended was false or whether SG Days’ February, 1996 Gordon Brief made a false representation that there was an ongoing 1984-1996 HHS-SSA nonacquiescence policy. If she determines the latter, then she may recommend that her SG successor cure the misrepresentation of fact and law made to the Supreme Court or recommend acceptance of the quiet settlement offer. §§ E-H.
Upon information and belief, if the past “Tenth Justice” SGs Charles Fried (1985-1989), Kenneth Starr (1993-1996), Drew Days (1993-1996), (Acting) Walter Dellinger (1996-1997), Seth Waxman (1997-2001), (Acting) Barbara Underwood (2001), Theodore Olson (2001-2004), Paul Clement (2005-2008), and Gregory Garre (2008-2009), were polled, they would all agree that the 2010 implementation of the 1986 Jackson regulation, 20 C.F.R. § 416.1130 (b), is a denial of the equal protection rights of the nationwide Ford class members. Upon information and belief, based on the January 24, 1989 and January 24, 2007 Senate Finance Committee testimony of SSA Commissioner Astrue that the nonacquiescence policy had ended, they would all also agree that the Jackson regulation should be equally applied in all 50 States. § R.
SG Kagin’s 2010 opinion as to the 2010 precedential authority of the 1984 Mendoza “nonacquiescence” decision, is also important because she was a 1995-96 Associate Counsel WH Counsel for WH Counsel Mikva after being 1993-1994 Special Counsel on the Judiciary Committee for Senator Biden. She would become the 1997-1999 Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council with jurisdiction over the SSI program. She would become a Constitutional and Administrative Law Professor. Because SG Kagin possesses the Chilicky “normal sensibilities” of human beings, she could read the “1995 Associate AG Gordon” documents and advise AAG of the OLP Schroeder whether he should recommend to AG Holder that he should end in 2010 the 1982 “Jackson nonacquiescence policy” and “Ruppert nonacquiescence policy” and acquiesce to Justice Thomas’ Christensen administrative law holding as being applied to SSA. §§ Q, R, S, U.
At her February 10, 2009 Senate Judiciary Subcommittee confirmation hearing, SG Nominee Kagen noted the responsibilities of the SG to all three Branches of Government:
122 ”The Solicitor General's Office is unusual in our government in owing responsibilities to all three of the coordinate branches in our system of separated powers. Because of this striking feature of the office, the Solicitor General traditionally has been accorded a large measure of independence.” Emphasis Added. http://judiciary.senate.gov/hearings/testimony.cfm?id=3649&wit_id=7600
She also highlighted the importance of the SG being “scrupulously candid” in representations to the Supreme Court when being true to the rule of law.:
Regardless, the Solicitor General must honor the principle of stare decisis, exercise care in invoking the Court's jurisdiction, and most important of all, be scrupulously candid in every representation made to the Court. In this sense, the most important of all the Solicitor General's responsibilities is to be true to the rule of law.” Id. Emphasis Added.
SG Kagen’s knowledge of the existence of a 2009 DOJ “stovepipe” whereby AG Holder’s U.S. Attorneys do not apply the same legal standards equally in all 94 Offices of the U.S. Attorneys, was revealed in a Q and A with Chief Justice Roberts as reported by Stints in Court May Yield Clues to a Style, Liptak, NY Times, 4-15-10:
At the argument two weeks ago, in a case about criminal contempt prosecutions, Ms. Kagan said a decision by one federal prosecutor’s office to drop criminal charges need not bind another office, prompting another sharp exchange with the chief justice.
“That’s absolutely startling,” Chief Justice Roberts said. “The different U.S. Attorneys all work for your boss, right? They work for the attorney general.”
Ms. Kagan did not retreat. “The United States government is a complicated place,” she said, and its units should be allowed to make their own decisions. Emphasis Added.
If SG Kagan reads the “Starr” documents, then she will be reading 1981-1985 SG Rex Lee’s decision not to file a 1982 Jackson petition for a writ of certiorari. In DAAG Kuhl’s April 20, 1984 letter to OMB-OIRA Director Sunderhauf, she explained that this was the basis of DOJ’s 1984 nonacquiescence policy to “persuade the courts that Jackson was incorrectly decided” that continues unabated in 2010. “We have reviewed the memoranda to the Solicitor General which led to the decision not to petition for certiorari in Jackson.” §§ A, R, S, GG.
In the July 27, 2010 FOIA request for the “SG Lee’s 1982 Jackson memorandum” relied upon by DAAG Kuhl, he requested that DOJ Chief FOIA Officer Perrelli make a prompt FOIA decision as to this document. Associate AG Perrelli could provide a “heads up” memo for SG Kagan if that document reveals SG Lee had not adopted a Jackson nonacquiescence policy. In her last days, SG Kagen could cite to SG Lee’s Jackson memo and solve the Gordon riddle by determining that because of Christensen, Mendoza was no longer a precedent for SSA. § R.
123 After AAG of the OLP Schroeder reads the “SG Lee’s 1982 Jackson memorandum” then he can decide whether SG Days’ 1996 representation to the Supreme Court that the USG adopted the 1984 Mendoza “nonacquiescence” policy holding, was accurate. He may determine that based on a plain reading of SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee testimony that the nonacquiecence policy should have ended prior to 1989. In any event, since this is a 2010 policy issue, he could consult directly with SSA Commissioner Astrue and suggest that he should reevaluate the three options in SSA Deputy Commissioner Enoff’s SSA Rental Subsidies memo. He could solve the Gordon riddle in 2010 by amending the Jackson regulation, 20 C.F.R. 416. §1130 (b), to apply equally to Ford class members residing in all 50 States. http://www.snowflake5391.net/6-14-91%20Enoff%20re%20Jackson.pdf. § U.
AAG of the OLP Schroeder can solve the Gordon riddle of 1996 by reading “SG Lee’s 1982 Jackson memorandum” document along with the “1995 Associate AG Gordon” connect- the-dots documents. He will learn 1995 was an important year as to who knew what and when. AAG of the OLP Schroeder can flash backwards to the 1985 mens rea of 1985 Acting Deputy Assistant Secretary of Legislation Astrue after the July 25, 1985 House Judiciary Committee that the “nonacquiecence” policy had ended and Jackson was not a “nonacquiescence” cases. Then AAG of the OLP Schroeder can flash forwards to 2010 and perform his OPL policy duty and learn the 2010 mens rea of SSA Commissioner Astrue given his January 24, 2007 testimony that the nonacquiescence policy ended prior to his becoming HHS General Counsel in 1989 and his “rigging” the 2010 SSA computer to apply the Gordon standard to deny Ford benefits. § C, KK.
AAG of the OLP Schroeder will learn from reading the “1995 Associate AG Gordon” documents the 1995 mens rea of Associate AG Schmidt after he reviewed the documents provided by WH Counsel Mikva. Having himself been the 1995-1997 Deputy Associate Attorney General, OLP Schroeder should know whether Associate AG Schmidt knew in 1995 of the existence the “do not exist” 1984-1995 NSA TSP data banks and whether the source of the payment for the construction and maintenance of the data banks was off-OMB Budget “Jackson nonacquiescence policy” funds. If AAG of the OLP Schroeder does not know that fact, then he can ask former-Associate AG Schmidt in 2010 whether he knew this fact in 1995. §§ K, Z.
If former-Associate AG Schmidt informs AAG of OLP Schroeder that he did know in 1995 that the “do not exist” 1984-1995 NSA TSP data banks existed, then AAG of the OLP can ask if he informed WH Counsel Mikva and AG Reno of this fact. If Associate AG Schmidt informs AAG of the OLP Schroeder that pursuant to the Unitary Executive theory he did not inform AG Reno and President Clinton in order to provide them with a plausible deniability defense because he knew violations of the FISA and PCA were impeachable offenses, then this solves the Gordon riddle. If a 1995 DOJ and WH stovepipe existed whereby Top Secret information bypassed President Clinton and AG Reno, then that same Top Secret information would have bypassed SG Days who would have not known that the “Jackson nonacquiescence policy” funds were needed to pay for the “do not exist” NSA TSP data banks. §§ K, Z, GG.
AAG of the OLP Schroeder can solve the Gordon riddle by providing former-SG Days with copies of “SG Lee’s 1982 Jackson memorandum”, 1991 “Starr”, “1995 Associate AG Gordon”, and “AAG Hunger-Gordon” documents and asking him if with those facts, would he have changed his Gordon Brief at n. 4. If so, then the Gordon riddle is solved. §§ A, G, ZZ.
124 AAG of the OLP Schroeder can also solve the Gordon riddle by providing former- DAG Ogden with these same documents. In 1995, David Ogden was the 1995-1997 Associate Deputy Attorney General for DAG Gorelick. He had been the 1994-1995 DOD Deputy General Counsel when the DOD General Counsel was Jamie Gorelick. He would become 1997-1998 Counselor to AG Reno and the 1998-1999 Chief of Staff to AG Reno. Then he would become the 1999-2001 AAG of the Civil Division and the supervising attorney of 1999-2001 U.S. Attorney Lynch in Ford v Shalala, Robert v National Archives, and Robert v DOJ. He was the 2009 DAG until his resignation on February 5, 2010. AAG of the OLP Schroeder can ask him whether he knew in 1995 as the DOD Deputy General Counsel of the existence of the “do not exist” 1984-1995 NSA TSP and the off-Budget funding source of the data banks. §§ K, Z, CC.
AAG of the OLP Schroeder can also solve the Gordon riddle by providing former- DAG Gorelick with these same documents. In 1995, DAG Jamie Gorelick was the DAG succeeding Philip Heyman (1993-1994). She had been the May 1993 to April 1994 DOD General Counsel who succeeded 1992-1993 DOD General Counsel Addington. In June, 1995 she issued the “wall” memo, Instructions on Separation of Certain Foreign Counterintelligence and Criminal Investigations sent to FBI Director Judge Freeh, AAG of the Criminal Division Harris, OIPR Counsel Scruggs, and SDNY U.S. Attorney White. On April 10, 2004 OIPR Counsel Baker declassified the 1995 “wall” memo. AAG of the OLP Schroeder can ask her whether she knew in 1995 as the DAG and former-DOD General Counsel of the existence of the “do not exist” 1984-1995 NSA TSP and the off-Budget funding source of the data banks. http://www.usdoj.gov/ag/testimony/2004/1995_gorelick_memo.pdf. §§ K, L, M, CC, DD, XX.
AAG of the OLP Schroeder can also solve the Gordon riddle by providing former- AAG of the OLC Dellinger with these same documents. On February 14, 1995 AAG of the OLC Dellinger (1993-1996), issued his Memorandum for Michael Vatis Deputy Director Executive Office for National Security Re Standards for Searches Under Foreign Intelligence Surveillance Act, and explained the “primary purpose” standard for the AG to seek a FISC surveillance warrant. This was after he had issued his April 5, 1994 Memorandum for Jo Ann Harris Assistant Attorney General Criminal Division Re: Use of Military Personnel for Monitoring Electronic Surveillance that established a “passive-active participation” test that limited military participation in domestic “law enforcement” to monitoring electronic surveillance. http://www.snowflake5391.net/OLC%204-5-94.pdf. In August, 1996, he become the Acting SG replacing SG Days and was the heir to the SG’s Mendoza “nonacquiescence” policy. AAG of the OLP Schroeder can ask him whether he knew in 1995 of the existence of the “do not exist” 1984-1995 NSA TSP and the off-Budget funding source of the data banks.§ CC.
AAG of the OLP Schroeder can also solve the Gordon riddle by providing former-CIA Director Panetta, an attorney, with these same documents. In 1995, CIA Director Panetta was President Clinton’s WH Chief of Staff (July 17, 1994 to January 20, 1997) after being President Clinton’s 1993-1994 OMB Budget Director. In 1985 he was a Member of House Budget Committee before becoming Chairman from 1989-1993. AAG of the OLP Schroeder can ask him whether he knew in 1995 of the existence of the “do not exist” 1984-1995 NSA TSP and the off-Budget funding source of the data banks. If not, then this is evidence of the existence of a 1994-1997 OMB and WH stovepipe whereby decisions as to use of the NSA TSP information off-OMB Budget funds were made by the daisy-chain of shadow government patriots. §§ J, K.
125 AAG of the OLP Schroeder can also solve the Gordon riddle by providing 1995-2000 SSA General Counsel Fried with these same documents. In April, 1995, prior to the Second Circuit’s May 22, 1995 Gordon decision, he became the SSA General Counsel. On July 2, 1996 he issued SSR 96-1p. In 2000 he recommended that the Ford decision be appealed. AAG of the OLP Schroeder can provide him with a nondisclosure waiver and ask him whether he knew in 1995 of the existence of the “do not exist” 1984-1995 NSA TSP and whether the “Jackson nonacquiescence policy” funds were the off-Budget funding source of the data banks. If so, then this solves the Gordon riddle and SSR 96-1p provides the blueprint solution. SSA Commissioner Astrue can change the national policy by amending the Jackson regulation to apply in all 50 States and end the Ford due process and equal protection violations. §§ C, R, U.
AAG of the OLP Schroeder can also solve the Gordon riddle by providing 1995-2000 former-EDNY AUSA Bruce Nims with these same documents. He was the 1986-1996 Gordon counsel. He knows who instructed him after the 1993 Gordon Second Circuit pre-argument conference adjournment to seek the new AG Reno’s decision, not to agree to a Gordon remand. He also knows whether HHS General Counsel del Real was a covered agent when he initiated the “Fraud Against the Government” investigation of Ruppert counsel seeking Robert’s incarceration and disbarment. If provided a nondisclosure waiver, then he will inform AG of the OLP Schroeder whether he knew in 1986 that HHS General Counsel del Real was a covered agent and knew in 1995 that HHS General Counsel Astrue had been a covered agent. §§ E-H.
On April 17, 1995, President Clinton issued E.O. 12,958, Classified National Security Information This E.O. included § 1.6 declassification, § 1.8 misclassification, and § 4.4 Special Access Programs standards. http://www.fas.org/sgp/clinton/eo12958.html. §§ L, M.
Thus, the Gordon riddle can be solved because President Obama’s December 29, 2009 E.O. 13,256 § 3.6 grandfathered in the “Glomar Response” defense of President Clinton’s E.O. 12,958 and President Bush’s March 25, 2003 E.O.13,292. After AAG of the OLP Schroeder asks Acting AAG of the OLC Barron to provide a copy of the 1982 Jackson, 1986 Barrett, and 1990 Ruppert nonacquiescence policy decisions, he will know whether any of these are classified nonacquiescence cases and “exception” documents subject to President Bush’s November 2, 2002 Signing Statement. If not, then he will learn whether any of the 2002-2010 AGs complied with 28 U.S.C. § 530D and reported these nonacquiescence cases to Congress. If not, then he has an OLP duty to so inform AG Holder of these facts. §§ A, C, D, YY, ZZ.
Hence, the 1995 time line importance of the FOIA requested 1995 Gordon documents. Any legal memos that assert that the 1984 Mendoza INS collateral estoppel decision is the legal basis of the HHS nonacquiescence policy, should be reviewed by AAG of the OLP Schroeder with the 20/20 hindsight of knowing the collateral damage visited upon millions of 1994-2010 Ford class members by the use of the “Gordon” standard to deny benefits. §§ H, Q.
Therefore, U.S. Attorney Lynch should read the Gordon Briefs, case files notes, and e- mails, solve the Gordon riddle in her settlement memo, and recommend whether AG Holder should accept the appellant’s quiet settlement offer. Then AG Holder can rely upon U.S. Attorney Lynch’s Gordon analysis when he decides whether to accept the quiet settlement offer which would make true SSA Commissioner Astrue’s testimony. §§ C, D-I, P, Q, YY, ZZ.
126 U. AG Holder can provide an answer to the how-could-it-have-ever-answered Jackson question by ordering SSA Commissioner Astrue to “make true” his January 24, 2007 Senate testimony by amending the Jackson regulation to equally apply in all 50 States and consulting with OIRA Director Sunstein to develop a transparent cost benefit analysis that would be needed if AG Holder also ends the Ford due process violations in 2010
AG Holder can provide an answer to the how-could-it-have-ever-answered Jackson question by ordering SSA Commissioner Astrue to “make true” his January 24, 2007 Senate testimony by amending the Jackson regulation to equally apply in all 50 States and consulting with OIRA Director Sunstein to develop a transparent cost benefit analysis that would be included in a 2010 Ford v Shalala remedy. Pursuant to the Administrative Procedure Act (APA) rule-making process, OIRA Director Sunstein can prepare a Jackson amendment cost benefit analysis. AG Holder will learn where OMB paid the 1982-2009 “lost” Jackson nonacquiescence policy funds not paid to SSI recipients. Then he can to determine whether the Bowen v City of New York clandestine policy equitable tolling remedy applies to Ford class members whereby the 2010 amended Jackson regulation is applied retroactively. §§ C, P, Z.
Prior to considering the Robert VIII v DOJ, HHS, and SSA quiet settlement offer, AG Holder should know the answer to the how-could-it-have-ever-answered Jackson question that the appellant presented to the Second Circuit in the appellant’s December 18, 2009 Motion seeking a pre-argument conference to settle the appeal without burdening the Second Circuit:
How could it have happened that in 2010 SSA Commissioner Astrue is programming the 2010 SSA computer to apply the 1982-2010 “Jackson nonacquiescence policy” of HHS General Counsel del Real to deny 2010 Ford v Shalala nationwide class members benefits contrary to the sworn January 24, 2007 Senate Finance Committee testimony of SSA Commissioner Nominee Astrue that the “nonacquiescence” policy had ended prior to his becoming HHS General Counsel in 1989, and contrary to the 2000 Christensen administrative law decision of Justice Thomas that the “law” to be applied is the duly promulgated regulation and not an agency’s attorney’s interpretation of the regulation?
AG Holder can learn the answer to the Jackson question by reviewing the APA process which led to the April 21, 1986 Jackson regulation, 20 C.F.R. § 416.1130 (b), amendment that only applied to the Seventh Circuit States of Indiana, Illinois, and Wisconsin states. 51 F.R. 13487 (April 21, 1986). This Jackson regulation limitation was after the July 25, 1995 House Judiciary Subcommittee testimony of Acting SSA Commissioner Mc Steen and SSA Chief Counsel Gonya that the HHS nonacquiescence policy had ended and that Jackson was not a nonacquiescence case. The July 27, 2010 FOIA request for the “April 21, 1986 “Jackson” regulation comments” are the comments considered by HHS Secretary Bowen, HHS General Counsel Robertson, Acting Commissioner Mc Steen, SSA Chief Counsel Gonya, and Acting SSA Commissioner’s Mc Steen’s Counselor Astrue. AG Holder can compare those April 21, 1986 comments to SSA Commissioner Astrue’s January 24, 2007 Senate testimony. AG Holder could use the April 21, 1986 comments as 2010 talking points when he discusses the appellant’s offer of a quiet settlement with SSA Commissioner Astrue, his client. §§ C, EE.
127 If AG Holder agreed to the quiet settlement offer, then this would mean that SSA Commissioner Astrue would end in 2010 the violation of the equal protection rights of Ford v Shalala class members by amending the Jackson regulation to apply equally in all 50 States. However, the Ford v Shalala due process violations would not be cured until AG Holder instructs SSA Commissioner Astrue to include in the Ford “remedy” Notices a citation to the amended Jackson regulation, 20 C.F.R. § 416.1130 (b), that would apply to all 50 States and include a retroactive application date for the April 9, 1994 Ford class members. §§ C, F, P-T.
As a result, acceptance of the Robert VIII v DOJ, HHS, and SSA quiet settlement offer, would lead to SSA Commissioner Astrue complying with the APA and filing a regulatory impact statement that will include the anticipated financial impact if the Jackson regulation was amended to apply to SSI recipients residing in all 50 States. That regulatory impact statement would include an analysis of retroactive application of the amended Jackson regulation to the April 21, 1986 Jackson regulation that was promulgated to comply with the Seventh Circuit’s 1982 Jackson v Schweiker holding that the regulation was an “all or nothing” regulation. § R.
In performing the 2010 cost benefit analysis for the regulatory impact statement, SSA Commissioner Astrue would take into consideration the July 25, 1985 House Judiciary Subcommittee testimony and SSA Chief Counsel Gonya’s March 23, 1987 letter to ACUS.
Only occasionally is the rule making function involved in a Social Security acquiescence process when, for instance, a court requires the Secretary to issue regulations. See, for example, Pulido v Heckler, 758 F. 2d 503 (10th Cir. 1985); Jackson v Schweiker, 683 F. 2d 1076 (7th Cir. 1982); Jackson v Heckler, 581 F. Supp. 871 (N.D.Ind. 1984); Pulido v Heckler, 568 F. Supp. 627 (D. Co. 1983). Unless the court’s order is reversed or stayed on appeal, the agency, of course, complies with such a court order. Gonya, at p. 3. Emphasis Added. http://www.snowflake5391.net/ssagonya.pdf.
If SSA Commissioner Astrue “of course, complies with such a court order” in 2010, then the 2010 Jackson regulation will apply retroactively to April 21, 1986. Hence, the importance of the 1982-2009 “OMB Jackson” documents which provide the needed annual dollar amounts of appropriated SSI funds that were not paid to SSI recipients to whom the “Jackson nonacquiescence policy” was applied. After AG Holder reads the 1982-2009 “OMB Jackson” documents and the “April 21, 1986 “Jackson” regulation comments” documents, he will know the answer to the how-could-it-have-happened Jackson question. §§ K, V-Z, AA, BB, CC.
OIPR Director Sunstein has released the OIRA Draft 2010 Report to Congress On The Benefits and Costs of Federal Regulations And Unfunded Mandates on State, Local, and Trial Entities. In this Draft Report, he provided recommendations for “Publicly Accessible Summaries of Key Information” when an agency prepares its regulatory impact analysis:
Regulatory analysis should be made a transparent as possible by a prominent and accessible summary– written in “plain language” manner designed to be understandable to the public – that outlines the central judgments and that support the regulations, including key findings of the analysis (such as
128 central assumptions and uncertainties). For all significant regulatory actions, agencies should provide a description of the need for the regulatory action and a summary of the analysis of costs and benefits, both qualitative and quantitative, as required under Executive Order 12866 § 6(a)(3)(B)(i)-(ii).
If an agency has analyzed the costs and benefits of regulatory alternatives to the planned action (as is required for economically significant regulatory actions), the summary should include such information. If relevant and feasible, the summary should include information on the distributional impacts of regulations, identifying affected subpopulations (such as the poor). To the extent feasible, the summary should be published online in a format that can be retrieved, downloaded, indexed, and searched by commonly used web search applications. Id. 40. Emphasis Added. http://www.whitehouse.gov/omb/assets/inforeg/draft_2010_bc_report.pdf.
The 1982-2009 FOIA requested “OMB Jackson” documents that are being withheld pursuant to the “Glomar Response” defense, reveal the annual amount of 1982-2008 “Jackson nonacquiescence policy” funds that were appropriated by Congress, but not paid to the millions SSI recipients. Their federal benefits were reduced by one-third as “phantom” income, because they could not pay the fair market rent and had received a private rent subsidy from non-legally responsible relatives to avoid their eviction. Those annual amounts and the FOIA requested 2009 “OMB Jackson” amount should be transparent and publicly accessible. §§ A, R, S, T, Z, ZZ.
On August 18, 2010, the appellant will request that OIRA Administrator Sunstein read the 1982-2009 “OMB Jackson” documents in order that he can provide the new OMB Director Lew with a cost benefit analysis of SSA Commissioner Astrue making true his January 24, 2007 Senate Finance Committee that the nonacquiescence policy ended prior to 1989. AG Holder will learn the amount of “Jackson nonacquiescence policy” funds not paid to the 1994- 2010 Ford class members. He will know the estimated FY 2011 OMB Budget cost if the Ford “remedy” Notices cite to an amended Jackson regulation and the Ford class files appeals. § C.
The appellant will suggest to OIPR Director Sunstein that pursuant to the Draft OIRA Report, that SSA Commissioner Astrue identify an “Olmstead” factor for Ford class “affected subpopulation” of the poor who were not institutionalized if a private rent subsidy would no longer be considered as Catch 22 “income” to reduce the monthly SSI benefits for SSI recipients who would otherwise be institutionalized. This is an important estimated savings that should be deducted from the annual of 2011 funds that would be paid if SSA Commissioner Astrue “made true” his January 24, 2007 Senate testimony and applied the Jackson regulation in all 50 States.
On June 22, 2009, President Obama issued “The Year of Community Living” to celebrate the 10th anniversary of the case of Olmstead v L.C. President Obama declared:
On the 10th anniversary of the landmark Supreme Court decision in the case of Olmstead v. L.C., President Barack Obama today celebrated that anniversary and launched "The Year of Community Living," a new effort to assist Americans with disabilities.
129 Specifically, the President has directed Health and Human Services Secretary Kathleen Sebelius and Housing and Urban Development Secretary Shaun Donovan to work together to identify ways to improve access to housing, community supports, and independent living arrangements. As part of this effort, later today, Secretaries Sebelius and Donovan will announce several new initiatives including details about increased numbers of Section 8 vouchers and enhanced interagency coordination to address this critical civil rights issue. The initiative also will include listening sessions conducted by HHS across the country to hear the voices and stories of Americans and to keep the President's pledge to be as open and transparent as possible.
"The Olmstead ruling was a critical step forward for our nation, articulating one of the most fundamental rights of Americans with disabilities: Having the choice to live independently," said President Obama. "I am proud to launch this initiative to reaffirm my Administration's commitment to vigorous enforcement of civil rights for Americans with disabilities and to ensuring the fullest inclusion of all people in the life of our nation." Emphasis Added. http://www.whitehouse.gov/the_press_office/President-Obama- Commemorates-Anniversary-of-Olmstead-and-Announces-New- Initiatives-to-Assist-Americans-with-Disabilities/
President Obama’s commitment to a vigorous enforcement of the civil rights for persons with disabilities, raises the ADA issue of whether SSA Commissioner Astrue is violating the rights of 2010 Ford class by “rigging” the SSA computer to apply the Jackson regulation in only three states. SSA Commissioner Astrue should determine the savings because Ford class members who would otherwise be institutionalized, remain in the community because their non-legally responsible relatives or friends provided the private rent subsidy that is needed for SSI recipients who cannot live alone to live in the community and not be institutionalized.
Judge Garaufis had followed Olmstead in Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289 (E.D.N.Y. 2009), decision. He held that NYS had discriminated against disabled SSI recipients who were warehoused in adult homes rather than residing in the community. On June 22, 2010, the Second Circuit lifted a stay of implementing his decision. Sulzberger, U.S. Appeals Court Lifts Stay on Relocating Mentally Ill, NY Times, 6-23-10.
NYS now has more a fiscal interest in the Jackson regulation being equally applied in NYS. If SSA Commissioner Astrue complied with the APA, then NYS could comment on a proposed amendment to equally apply the Jackson regulation to NYS Ford v Shalala subclass members. The equal application of the Jackson regulation in all 50 States would result in the end of the discrimination against NYS SSI recipients whose federal SSI benefits are reduced by one-third for receiving a private rent subsidy from a non-legally responsible relative. Upon information and belief, the July 27, 2010 FOIA requested “April 21, 1986 “Jackson” regulation comments” contain a NYS comment requesting the regulation apply in all 50 States. §§ C, S, T.
130 Thus, there is a 2010 “public interest” issue to amend the Jackson regulation through a transparent APA regulatory process in order that the “Olmstead” discrimination against the Ford SSI recipients never happens again. If there was 2010 transparency in the amendment of the Jackson regulation to apply equally in all 50 States, then SSA Commissioner Astrue would exhibit the Chilicky “normal sensibilities” of other human beings. SSA Commissioner Astrue would not want the public to know that he had lied to the Senate Finance Committee on June 22, 1989 and on January 24, 2007 that the nonacquiescence policy had ended prior to his becoming HHS General Counsel in 1989, when he knows that he diverted 2010 unaudited Jackson funds to pay for “black operations” without the knowledge of President Obama. § Q.
After OIRA Director Sunstein “follows the money” that are the billions of “lost” 1982- 2009 off-OMB Budget “Jackson nonacquiescence funds” not paid to 1982-2009 SSI recipients, he will know whether those “lost” funds were used to pay for the construction and maintenance of the “do not exist” pre-9/11 1984-2001 NSA TSP data banks and the post-9/11 2002-2005 “immaculate construction” and 2006-2009 NSA PSP data banks, that were not paid for with classified OMB Budget funds. Then he will inform the new OMB Director Lew who will inform AG Holder. Then AG Holder will decide whether this is clandestine policy that triggers the application of the Bowen v City of New York remedy for Ford class members. §§ K, P, Z, CC.
OIRA Director Sunstein was a University of Chicago Constitutional Law Professor with Constitutional Law Professor Obama. OIPR Director Sunstein can opine whether President Obama is violating his Article II “take Care the Laws are faithfully executed” equally in all 50 states because SSA Commissioner Astrue is “rigging” the 2010 computer to apply the 1982 “Jackson nonacquiescence policy” of HHS General Counsel del Real. He also can opine whether SSA Commissioner Astrue committed a crime in his January 24, 2007 Senate Finance Committee testimony because SSA Commissioner Astrue knew the “Jackson nonacquiescence policy” did not end in 1989, knew the January, 2007 computer was “rigged” to apply the “Jackson nonacquiescence policy” to deny Ford class members benefits, and knew SSI appropriated funds were used to pay for the “do not exist” NSA TSP and PSP data banks. § CC.
After OIRA Director Sunstein “follows the money” not paid to the 1994-2010 Ford class members, he will know the answer to the how-could-it-have-happened Jackson question and solve the “Gordon riddle. OIRA Director Sunstein will have a duty to warn President Obama, his friend, that 2010 fifth column attorney-patriots are implementing the extreme Unitary Executive theory of 1981-1984 CIA Assistant Counsel Addington. He knows that President Obama should know whether a 2010 daisy-chain of shadow government attorney-patriots are lying-by-omission to President Obama to protect the national security as occurred when attorney-patriots lied-by-omission to President Reagan to protect the national security. OIPR Director Sunstein can read the “FBI Abshire” documents to confirm the 1985-1988 facts. §§ Y.
Which leads to the purpose of this lengthy White Paper being served with the appellant’s July 27, 2010 de novo FOIA requests. If President Obama’s DOJ, OMB, HHS, SSA, NARA, CIA, and DOD Chief FOIA Officers possess the Chilicky “normal sensibilities” of human beings, as do OIRA Director Sunstein and President Obama, then they will apply AG Holder’s March 19, 2009 presumption of disclosure standard. If they do, then SSA Commissioner Astrue knows that he will have to make true his January 24, 2007 Senate testimony. §§ A, P, Q, YY.
131 V. U.S. Attorney Lynch’s K and A duty to read for accuracy the 1998-2000 Robert v National Archives FOIA “c (3) exclusion” ex parte Declarations, case file notes, and e- mails, and determine whether any USG attorneys committed a fraud upon the court by application of AG Meese’s December, 1987 “c (3) exclusion” FOIA Guidelines
The appellant has placed EDNY Attorney Lynch on Notice of her K & A duty to read for accuracy the 1998-2001 Robert v National Archives, 1 Fed. Appx. 85 (2d Cir. 2001), 5 U.S.C. § 552(c)(3) FRCP 11 signed ex parte Declarations, case file notes and e-mails because 1999-2001 U.S. Attorney Lynch was AUSA Mahoney’s supervising attorney. When AG Holder applies AG Meese’s December, 1987 Attorney General’s Memorandum on the 1986 Amendments to the Freedom of Information Act Guidelines, he will learn whether DOJ attorneys, including 1999-2001 AAG of the Civil Division Ogden, had committed a fraud upon the court by withholding material facts from Judge Wexler and the Second Circuit to protect the 1984-2000 sources and methods of the DIA-CIA-FBI “plumber” unit. §§ G, M, N, CC.
This is a timely issue because Robert has filed the July 27, 2010 de novo NARA FOIA request for the release of the “Robert v National Archives ‘Bulky Evidence File’” documents. These documents reveal whether FBI Agent Allison had informed IC Walsh and FBI Director Judge Sessions of the allegation that a “black operation” had been conducted at IMC through which unaudited HHS nonacquiescence funds had been diverted to pay for medical supplies and treatment of the Contras in violation of the Boland Amendment, the National Security Act, FISA, PCA and the Social Security Act. AG Holder can read the “FBI Agent Allison” documents and apply the Second Circuit’s Barrett holding and determine whether ex parte Declarations and the NARA Declaration of the NARA FOIA Officer were intended to deceive Judge Wexler and the Second Circuit by withholding “sources and methods” facts. §§ D-H.
In its January 12, 2001 Robert v National Archives, decision, the Second Circuit panel of Judges Feinberg, Katzmann, and Sotomayor explained that DOJ advised that the “Bulky Evidence File” documents would be later posted on “electronic indices” of NARA: NARA stated that it was unable to find any other reference to Robert, an interview with Robert, or any records created by Carol Allison in the records of Independent Counsel Walsh, but assured Robert that further searches would be conducted when electronic indices of a "Bulky Evidence File" became available. Emphasis Added.
The Second Circuit panel commented on the accuracy of the NARA due diligence Declaration which the Court relied upon in rendering its decision. The Court held that given the NARA Declaration, the burden of proof was on the FOIA plaintiff to produce evidence of the existence of the documents being transferred and withheld by the CIA pursuant Exemption 3:
Even if we were to construe Robert's claim as suggesting that NARA "withheld" documents by its lack of diligence in conducting the requested search, the Declaration of NARA's FOIA officer found in the record adequately establishes that NARA properly discharged its statutory duties, warranting summary judgment. See Carney v. Dep't of Justice, 19 F.3d 807, 812 (2d. Cir. 1994) (affidavits or declarations indicating that the agency has
132 conducted a thorough search are sufficient to sustain the agency's burden of proving adequacy of search). Robert goes on to assert that "if NARA does not have custody of the documents, then it can be reasonably concluded that the CIA has custody of the documents withheld pursuant to FOIA Exemption 3," and further insinuates that these documents may have been transferred to the CIA to circumvent compliance with Robert's FOIA request. Robert presented no evidence whatsoever to support these allegations and therefore they have no bearing on this litigation. Cf. Tax Analysts, 492 U.S. at 145 (documents are subject to disclosure only if "the agency [is] in control of the requested materials at the time the FOIA request is made"). Id. 88-89. Emphasis Added.
Robert is seeking the 2010 release of the NARA “Robert v National Archives ‘Bulky Evidence File’” documents, along with the NARA “Peter Keisler Collection” and NARA “Perot” documents, to carry his heavy burden to prove to the Second Circuit that these NARA documents corroborated Robert’s almost incredible allegation that DOJ attorneys intended to commit a fraud upon the court by application of the Chambers v Nasco standard because they knew where the “FBI Agent Allison” documents were located and the smoking gun contents. U.S. Attorney Lynch has a K & A duty to read the “Bulky Evidence File” documents along with ex parte Declarations filed by USG attorneys in Robert v National Archives. If she learns that the “Barrett nonacquiescence policy” had been implemented and then-AAG of the Civil Division Ogden had withheld material facts from 1999-2001 U.S. Attorney Lynch for the purpose of U.S. Attorney Lynch (without her knowledge) deceiving Judge Wexler and the Second Circuit, then she will have a NYS Rule 3.3(a)(3) duty to cure misrepresentations of fact made to Judge Wexler and the Second Circuit. This is especially the case if a DOJ attorney had filed a “c (3) exclusion” ex parte Declaration to protect national security secrets. §§ D- H, Y, Z, AA, BB, CC.
On October 27, 1986, President Reagan issued his Presidential Signing statement and explained the need for the 1986 FOIA amendments including the new “c (3) exclusion” defense:
The FOIA reforms substantially broaden the law enforcement exemptions in that Act, thereby increasing significantly the authority of Federal agencies to withhold sensitive law enforcement documents in their files. The statutory language changes make clear, for example, that any Federal law enforcement information relating to pending investigations or confidential sources may be withheld if its disclosure could reasonably be expected to cause an identified harm. The Act also includes, for the first time, special exclusions whereby certain law enforcement records would no longer be subject to the requirements of the FOIA under particularly sensitive, specified circumstances. Id. 3. Emphasis Added. The Signing Statement is a Preamble in AG Meese’s December, 1987 memo. http://www.usdoj.gov/04foia/86agmemo.htm.
In AG Meese’s December, 1987 memo, Attorney General’s Memorandum on the 1986 Amendments to the Freedom of Information Act, he explained the FBI’s new FOIA “c (3) exclusion” defense. He explained the FBI counterintelligence exemption if the mere admission of the existence of the documents would place the national security at risk:
133 The third of these special record exclusions pertains to certain especially sensitive records that are generated specifically by the Federal Bureau of Investigation. The new "(c)(3) exclusion" provides as follows:
Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in [Exemption 1], the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of [the FOIA].
AG Meese noted the ”exceptional sensibility” and “vulnerability” of the FBI to “targeted” FOIA requests. As a result, the FBI uses FOIA Exemption 1 and the “Glomar response” defense so that FBI “excluded records may be treated as beyond the FOIA’s reach” so long as the records remain classified documents subject to the “Glomar Response” defense:
This exclusion obviously is more particularly focused than the other two, but it is to operate in the same way. It recognizes the exceptional sensitivity of the FBI's activities in the areas of foreign intelligence, counterintelligence and the battle against international terrorism, as well as the fact that the classified files of these activities can be particularly vulnerable to targeted FOIA requests.
Sometimes, within the context of a certain FOIA request, the very fact that the FBI does or does not hold any records on a specified person or subject can itself be a sensitive fact, properly classifiable in accordance with Executive Order 12,356 and protectible under FOIA Exemption 1, 5 U.S.C. § 552(b)(1). Within such a context, however, as can be the case under Exemptions 7(A) and 7(D), the mere invocation of Exemption 1 to withhold such information can provide a harmful signal to an adversarial requester. In other possible contexts, the furnishing of an actual "no records" response, even to a seemingly innocuous "first-party" request, can compromise sensitive activities.
The FOIA Reform Act now takes cognizance of this through the (c)(3) exclusion, in which it authorizes the FBI to protect against such harm in connection with any of its records pertaining to these three especially sensitive areas. To do so, the FBI must of course reach the judgment, in the context of a particular request, that the very existence or nonexistence of responsive records is itself a classified fact and that it need employ this record exclusion to prevent its disclosure. By the terms of this provision, the excluded records may be treated as beyond the FOIA's reach so long as their existence, within the context of the request, "remains classified information." 5 U.S.C. § 552(c)(3). Id. 19.
134 AG Meese’s December, 1987 Memorandum was issued after the Senate-House Iran- Contras Report was released on November 18, 1987. Therefore, AG Meese contemplated the use of the “c (3) exclusion” to protect the “FBI Abshire” documents from being reviewed by the public. In December 1986 FBI Director Judge Webster established a “task force of departmental general counselors” to review classified documents that Special Counselor to the President David Abshire, a Member of the President’s Foreign Intelligence Advisory Board (PFIAB), was not to reveal to President Reagan’s Article II Tower Commission which was to issue its Report by February 28, 1987. These 3000 documents reveal DIA-CIA-FBI sources and methods. These “FBI Abshire” documents were also not to be released to the Article I Senate- House Committee conducting its Article I investigation of the Iran-Contras affairs or to IC Lawrence Walsh in his criminal investigation, in order to protect IC sources and methods. § Y.
The “FBI Agent Allison” documents are connect-the-dots documents to the “FBI Abshire” documents because they reveal whether on March 29, 1989 FBI Agent Allison knew of the allegations that an illegal DIA-CIA-FBI “black operation” had been conducted at IMC from 1984-1986 through which off-OMB Budget “Jackson nonacquiescence policy” funds were diverted to pay for the medical supplies an treatment of the Contras in violation of the Boland Amendment. If the “FBI Abshire” document prove that an illegal DIA-CIA-FBI “black operation” had been conducted at IMC, then the “FBI Agent Allison” documents reveal whether FBI Agent Allison knew this fact and did not provide this information to IC Walsh or to FBI Director Sessions in order to protect the DIA-CIA-FBI sources and methods of using off-OMB Budget “Jackson nonacquiescence policy” funds for other 1989 “black operations” of the intelligence community including the funding the “do not exist” NSA TSP data banks. §§ K, Z.
The “FBI Agent Allison” documents have 2010 significance if they reveal that in 2000 during the Robert v National Archives litigation, AAG of the Civil Division Ogden knew that the unaudited off-Budget “Jackson nonacquiecence policy” funds not paid to the September 29, 1999 Ford v Shalala 1994-1999 nationwide class members, had been diverted to pay for the “do not exist” 1984-1999 NSA TSP data banks. Upon information and belief, the Robert v National Archives case file notes reveal that AAG of the Civil Division Ogden, the 1993-1994 DOD Deputy General Counsel, knew this fact, but that DAG Holder did not know this fact. §§ J, N.
The 1999 mens rea of DAG Holder as to his knowledge of the “FBI Agent Allison” documents is an important fact because AG Meese’s December, 1987 Attorney General’s Memorandum on the 1986 Amendments to the Freedom of Information Act “c (3) exclusion” Guidelines were adopted in the DOJ’s 2009 Guide to the Freedom of Information Act. There is to be consultation with the DOJ OIPR office whenever federal law enforcement agencies are considering the use of the “Glomar Response” defense to withhold FOIA requested documents:
The record exclusions expressly authorize federal law enforcement agencies, under these exceptional circumstances, to “treat that records as not subject to the requirements of the (the FOIA).” Given their unique nature, any agency considering employing an exclusion or having a question as to their implementation should first consult with the Office of Information and Policy, at (202)514-3642. http://www.justice.gov/oip/foia_guide09/exclusions.pdf
135 The 2009 DOJ Guide explains that the use of the “(c)(3) exclusion” is based on the FBI Director’s decision that the classified documents should remain classified. The 2009 FOIA requester is not to know that the FOIA requested documents are classified documents because they reveal past or current or future FBI domestic counterintelligence activities:
This exclusion recognizes the exceptional sensitivity of the FBI’s activities in the areas of foreign intelligence, counterintelligence, and the battle against international terrorism, as well as the fact that the classified files of these activities can be particularly vulnerable to targeted FOIA requests. Sometimes, within the context of a particular FOIA request, the very fact that the FBI does or does not hold any records on a specified person or subject can itself be a sensitive fact, properly classified in accordance with the applicable executive order on the protection of national security information, and protectible under FOIA Exemption 1. Once again, however, mere invocation of Exemption 1 to withhold such information can provide information to the requester which would have an extremely adverse effect on the government’s interests.
Congress took cognizance of this through the (c)(3) exclusion, in which it authorizes the FBI to protect itself against such harm in connection with any of its records pertaining to “foreign intelligence, or counterintelligence, or international terrorism. To do so, the FBI must of course reach the judgment, in the context of a particular request, that the very existence or nonexistence of responsive documents is itself a classified fact and that as it need employ this record exclusion to prevent disclosure. By the terms of this provision, the excluded records may be treated as such as long as their existence, within the context of the request, “remains classified information.”
Additionally, it should be noted that while the statute refers to records maintained by the FBI, exceptional circumstances could possible arise in which it would be appropriate for another component of the Department of Justice or another federal agency to invoke this exclusion jointly on a derivative basis as well. Such a situation could occur where information in records of another component or agency is derived from FBI records which fully qualify for (c)(3) exclusion. In such extraordinary circumstances, the agency processing the derivative information should consult with the FBI regarding the possible joint invocation of the exclusion in order to avoid a potentially damaging inconsistent response. Id. 679-690. Emphasis Added.
If the Robert v National Archives case file notes and e-mails reveal that the FBI Director Judge Freeh used the “Glomar Response” in 1998 and if in Robert v National Archives a USG official filed a (c (3) exclusion” with Judge Wexler, then this means the “FBI Agent Allison” documents are related to Robert v III “Recarey extradition” documents. Those are the documents upon which FBI Director Freeh decided not to extradite IMC President Recarey from Spain.§ Y.
136 If so, then the March 29, 1989 “FBI Agent Allison” documents have 2010 importance if FBI Agent Allison did not inform FBI Judge Sessions of her knowledge of the allegation of the illegal funding source of the “black operation” at IMC. This would mean a 1989 FBI stovepipe bypassed FBI Director Judge Sessions. This is an important fact because that FBI stovepipe existed when Associate WH Counsel Astrue presented his June 22, 1989 Senate Finance Committee testimony that the “nonacquiescence” policy had ended. This was false testimony as evidenced by 1989-1993 HHS General Counsel Astrue’s decisions to continue to implement the 1982 “Jackson nonacquiescence policy” of HHS General Counsel del Real and the 1990 “Ruppert nonacquiescence policy” of HHS General Counsel Astrue. §§ C, H, R-U, Z.
If the “FBI Agent Allison” documents reveal that a 1989 FBI stovepipe existed that bypassed FBI Director Judge Sessions, then as the July 27, 2010 FOIA request for the “Robert v National Archives ‘Bulky Evidence File’” documents proceeds, DOA FOIA Chief-Associate AG Perrelli will know that a 2010 FBI stovepipe bypasses FBI Director Mueller because SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee testimony that the nonacquiescence policy had ended prior to his becoming the HHS General Counsel in 1989, remains false testimony. This is evidenced by his use of the “Jackson nonacquiescence policy” to deny Ford class benefits. If a 1989 FBI stovepipe bypassed FBI Director Judge Sessions, then a 2009 FBI “stovepipe” bypassed FBI Director Mueller with the knowledge of DAG Ogden. This is evidenced by AAG of the Civil Division Ogden’s 1999 Robert v National Archives case file notes and e-mails he sent to NARA Chief FOIA Officer General Counsel Gary Stern (1998-2010), the NARA General Counsel in Robert v National Archives. §§ F, BB.
As per the appellant’s July 27, 2010 de novo FOIA request for the “Robert v National Archives ‘Bulky Evidence File’” documents, the NARA FOIA Officer will be making the decision whether to release the 1989 “FBI Agent Allison” documents in consultation with NARA Chief FOIA Officer OGC Counsel Stern. He knows that a 2010 denial decision of that FOIA request will result in an appeal with a Dinler Article III in camera review. § XX.
NARA Chief FOIA Officer OGC Counsel Stern also knows that if the Robert VIII v DOJ, HHS, and SSA appeal is reinstated on September 3, 2010, then the Robert v National Archives “FBI Agent Allison” documents will at issue. The Second Circuit will review Judge Garaufis’ decision to deny the appellant’s September 3, 2008 Motion for a pre-clearance Order to appeal NARA Deputy Archivist Thomas’ August 11, 2008 decision to withhold the “FBI Agent Allison” documents in her custody by using a de facto “Glomar Response” defense. § BB.
On August 18, 2010, the appellant will inform NARA Chief FOIA Officer OGC Counsel Stern that if the July 27, 2010 FOIA request is denied, then the appellant will file a 2010 Motion with Judge Garaufis seeking a pre-clearance order to file a putative complaint that will include a cause of action to appeal the NARA denial of the July 27, 2010 FOIA request. The appellant will argue those documents are necessary to prove to the Second Circuit that in Robert v National Archives USG attorneys implemented the “Barrett nonacquiescence policy” and withheld material facts from Judge Wexler and the Second Circuit with an intent to deceive the Judges and Robert. On August 18, 2010, the appellant will request that DOJ Chief FOIA Officer-Associate AG Perrelli contact NARA Chief FOIA Officer Stern re the application of AG Holder’s March 19, 2009 FOIA Guidelines to the July 27, 2010 de novo FOIA requests. §§ A, D-H, Y, AAA.
137 DOJ Chief FOIA Officer-Associate AG Perrelli was the 1997-1999 Counsel to AG Reno and 1999-2001 Deputy Assistant Attorney General of the Civil Division under AAG of the Civil Division Ogden. On August 18, 2010, the appellant will place him on Notice that the “FBI Agent Allison” are connect-the-dots to the “FBI Abshire” documents that FBI Chief FOIA Officer Hardy reviewed in 2009. He will place DOJ Chief FOIA Officer-Associate AG Perrelli on Notice that if the Robert VIII v DOJ, HHS, and SSA appeal is reinstated, then the appellant’s 2010 Motion to Judge Garaufis for a pre-clearance order will seek the “FBI Abshire” documents and the 2009 case file notes of FBI Chief FOIA Officer Hardy’s to learn the name of the FBI Chief FOIA Officer Hardy’s command and control officer who ordered him to deny the 2010 FOIA request given the tampering with the 2005 injunction Judgment. §§ E-H, Y, AAA.
DOJ Chief FOIA Officer-Associate AG Perrelli will also be placed on Notice that the “FBI Agent Allison” documents are connect-the-dots documents to the 1982-2008 “OMB Jackson” documents OMB FOIA Officer Hardy has withheld with the “Glomar Response” defense. On August 18, 2010 the appellant will request that he contact OMB Associate Deputy Director for Administration Robert Shea to determine the name of the OMB command and control officer who made the decision to use the “Glomar Response” defense and not to docket that FOIA request. He will learn whether 1985 “Jackson nonacquiescence policy” funds paid for the medical supplies and treatment of the Contras rather than the Nicaraguan Humanitarian Assistance Office (NHAO) State Department funds appropriated for that purpose. §§ Y, Z, AAA.
DOJ Chief FOIA Officer-Associate AG Perrelli will also be placed on Notice that the “FBI Agent Allison” are connect-the-dots 2009 “OMB Jackson” documents that reveal where the 2009 “Jackson nonacquiescence policy funds” were diverted that were not paid to 2009 Ford v Shalala class members. The “FBI Agent Allison” documents are connect-the-dots documents to the 2009 “OMB Jackson” documents. Just as President Reagan did not know that 1984-1987 off-OMB Budget “Jackson nonacquiescence policy” funds were used to pay for the “black operation” at IMC, so too does President Obama not know that 2009 off-OMB Budget “Jackson nonacquiescence policy funds, not classified OMB Budget funds, were used to pay for NSA TSP data banks administered by the DOD Cyber Command. §§ C, K, N, Z.
DOJ Chief FOIA Officer-Associate AG Perrelli will also be placed on Notice that the “FBI Agent Allison” and the Robert v National Archives case file notes and e-mails are clandestine policy documents that trigger the application of the Bowen v City of New York equitable tolling remedy for Ford class members. He will learn from reading the 2000 Robert v National Archives case file note and e-mails that AAG of the Civil Division Ogden knew in 2000 that the 1989 “FBI Agent Allison” documents affected the 2000 pending Ford appeal because they proved that HHS General Counsel del Real had been a covered agent. §§ C, P, Q.
As per the July 27, 2010 letter to AAG of the OLP Schroeder, he has an OLP duty to read the “FBI Agent Allison” documents that are now in the custody of NARA along with the 1998-2001 DOJ Robert v National Archives case file notes and e-mails in the DOJ archives. If AG Holder requests that he revise AG Meese’s December, 1987 “c (3) exclusion” Guidelines, then the “FBI Agent Allison” documents provide AAG of the OLP Schroeder with Past is Prologue facts for an analysis how the “c (3) exclusion” Guidelines has ”worked” with a three dimensional analysis of 1988-2010 DOJ decision making: vertical, horizontal, and time. § N.
138 The “FBI Agent Allison” documents provide a vertical analysis of the DOJ/FBI decision-making chain of command. AAG of the OLC Schroeder will learn the names of the command and control officers of the FBI counterintelligence “plumber unit” who make FOIA classified FOIA litigation stovepipe decisions re Top Secret documents without the knowledge of the FBI Director, the DAG, and the AG in order to provide plausible deniability defenses for the FBI Director, the DAG, and the AG to violations of laws. This includes 28 U.S.C. § 1505, Obstruction of proceedings before departments, agencies, and committees, by covering up lies to Congressional Oversight Committees to protect DIA-CIA-FBI sources and methods. §§ J, K.
The “FBI Agent Allison” documents provide a horizontal analysis of the DOJ/FBI chain of command decision making. AAG of the OLC Schroeder will learn the names the command and control officers of the FBI counterintelligence “plumber unit” who made classified FOIA litigation stovepipe decisions re Top Secret documents without the knowledge of the FBI Director, the DAG, and the AG because they were not FBI or DOJ officials. These are important names because the “Commanders in Chief” of these horizontal decision makers were not the Presidents, but were the 1982-2010 daisy-chain of shadow government patriots implementing the Unitary Executive theory to protect the nation from terrorists without the knowledge of their Presidents, by providing plausible deniability defenses to the violations of the National Security Act, FISA, PCA and Social Security Act that they knew were impeachable offenses.
The “FBI Agent Allison” documents provide a time analysis because the 1989 FBI connect-the-documents flash backwards and forwards in time from 1985-2010. The 1989 “FBI Agent Allison” documents track backwards to the 1985 Robert II v CIA and DOJ “FBI Revell” log, the 1986 “FBI Abshire”, the 1987 FBI “Perot”, and 1987 FBI “IMC Investigation Final Report” documents. They track forwards to the 1998-1991 DOJ Robert v National Archives case file notes and e-mails, the 1998-2002 Robert v DOJ case file notes and e-mails, the 2001- 2003 Robert III v DOJ “Recarey extradition” documents, case file notes and e-mails, and 2008 Robert VIII v DOJ, HHS, and SSA case file notes and e-mails re the appellant’s September 3, 2008 Motion seeking a pre-clearance order to file the putative FOIA complaint to seek the release “Robert v National Archives ‘Bulky evidence file’” documents in the custody of the NARA Deputy Archivist Thomas. They reveal the names of USG attorneys who knew when they implemented the “Barrett nonacquiescence policy” and withheld material facts, that they had also violated NYS Judiciary Law § 487 by deceiving the Judges and Robert. §§ G, Y, AAA.
After reading the “FBI Agent Allison” documents, AAG of the OLP Schroeder will know whether FBI Agent Allison was tasked as a FBI counterintelligence “plumber” unit agent to manage the IC Walsh stovepipe to prevent IC Walsh from investigating the illegal domestic DIA-CIA-FBI “black operation” at IMC. This would include bypassing IG Walsh’s prosecuting attorney Michael Bromwich who was tasked with investigating complaints against government officials and who would become the 1994-1999 DOJ IG. “Bromwich’s other responsibilities in that office included supervising a team of prosecutors and law enforcement agents that investigated allegations of criminal misconduct against government officials and private citizens in connection with provision of aid to the Contras in Nicaragua and serving as overall coordinator of the Iran-Contra grand jury.” President Obama Announces Bromwich to Fix Oil Industry Oversight. 6-15-10. Whitehouse Press Release. http://www.whitehouse.gov/the-press- office/president-obama-announces-bromwich-fix-oil-industry-oversight. §§ W, X, Y, Z, BB.
139 After reading the “FBI Agent Allison” documents, AAG of the OLP Schroeder will know whether the horizontal link with the 1982-2010 daisy chain of shadow government decision makers, has been through the AAGs of the Civil Division in order that the DAGs and the AGs would have plausible deniability defenses to the violations of federal laws that shadow government patriots determined were necessary to protect the nation from terrorists. Using a time analysis of the contents of the “FBI Agent Allison” documents, AAG of the OLP Schroeder will know if AAGs of the Civil Division 1983-1987 Willard, 1988-1989 Bolton, 1993-1999 Hunger, 1999-2001 Ogden, and 2003-2007 Keisler, knew that FBI Agent Allison did not inform FBI Director Judge Sessions or IC Walsh of the “black operation” at IMC because they knew the use of off-OMB Budget unaudited HHS funds violated the Social Security Act when used to pay for the “black operations” at IMC and at the NSA. §§ K, L, M, N, Y, BB, CC.
This is an important 2010 fact because AAG of the Civil Division Ogden’s 1999-2001 Robert v National Archives supervising attorney was 1997-2001 DAG Holder. AAG of the OLP Schroeder and AG Holder should know whether 1982-2010 AAGs of the Civil Division have been the “horizontal” liaison to the 1982-2010 daisy chain of shadow government decisions makers in order to provide a plausible deniability defense to 1982-2010 DAGs: Edward Schmultz (1981-1984), Carol Dinkins (1984-1985), D. Lowell Jenkins (1985-1986), Arnold Burns (1986-1988), Harold Christensen (1988-1989), Donald Ayer (1989-1990), William Barr (1990-1991), George Terwilliger (1992-1993), Philip Heyman (1993-1994), Jamie Gorelick (1994-1997), Eric Holder (1997-2001), Larry Thompson (2001-2003), James Comey (2003- 2005), Paul Mc Nulty (2005-2007), Craig Morford (Acting 2007-2008), Judge Mark Filip (2008), DAG Ogden (2009), and Acting DAG Grindler (2010). § A, E, J, Z, QQ.
This is also an important fact because the 2004 Privacy and Civil Liberties Board was originally housed in the Office of the DAG to oversee compliance with the Patriot Act. http://www.usdoj.gov/pclo/. However, the DAG’s Privacy and Civil Liberties Board is now defunct. The 2006-2008 Vice Chairman of the Privacy and Civil Liberties Oversight Board Charles Raul has reported that the Board housed in the Office of the DAG has no members. “The Senate then failed to confirm President Bush's nominees for the reconstituted board, and President Obama has not nominated anyone at all.” Letter to the editor. Raul, The missing Privacy and Civil Liberties Oversight Board, Washington Post, January 24, 2010.
President Obama has not nominated any Members for the Privacy and Civil Liberties Board. “But more than a year into a new presidency, the Privacy and Civil Liberties Oversight Board—created by Congress in 2007—remains as much a cipher under Barack Obama as it was under George W. Bush.” Isikoff, Civil Liberties Board Goes Vacant Under Obama, 5-2-10.
Without a DOJ Privacy and Civil Liberties Oversight Board and with the effective use of the DOJ and FBI stovepipes in 2010, the only internal Article II watchdog to violations of the law by the intelligence community is the President’s Intelligence Oversight Board (IOB). On October 28, 2010, President Obama amended President Bush’s E.O. 13,462, by specifically adding a new (c) for referrals of allegations of possible intelligence community crimes to the Attorney General. "(c) forward to the Attorney General information concerning intelligence activities that involve possible violations of Federal criminal laws or otherwise implicate the authority of the Attorney General;" 74 FR 56521 (November 2, 2009). §§ K, N, CC, DD.
140 Hence, the importance of AG Holder knowing the content of the “FBI Agent Allison” and connect-the-dots FBI documents which reveal whether a 1984-2010 DOJ “stovepipe” has been in place by which facts have been withheld from the DAGs, including 1997-2001 DAG Holder, re the existence and funding of the “do not exist” 1984-2010 NSA TSP and PSP data banks that are accessed by the 2010 DOD Cyber Command military officers. As per President Obama’s October 28, 2009 amendment to E.O. 13,462, there cannot be referrals to the AG if a 2010 DOJ stovepipe is being used whereby 2010 allegations of misconduct by the intelligence community, including the FBI, are known by DOJ attorneys, but bypass AG Holder. §§ J, N.
On October 29, 2009 President Obama appointed as Co-Chairman of the President’s Intelligence Advisory Board (PIAB) former-Senators Chuck Hagel and David Boren. “But on Wednesday, he appointed Chuck Hagel, a former Republican senator from Nebraska, and David L. Boren, a former Democratic senator from Oklahoma, to be co-chairmen of the President’s Intelligence Advisory Board, which focuses on making spy agencies more effective.” Savage, Obama Order Strengthens Spy Oversight, NY Times 10-30-09. §§ K, N, CC, DD.
The President’s Intelligence Advisory Board and its internal Intelligence Oversight Board (IOB) component, oversee the Intelligence Community’s compliance with the Constitution and all applicable laws, Executive Orders, and Presidential Directives. “It complements and supplements, rather than duplicates the oversight roles of the Director of National Intelligence, Department and Agency Inspectors General and General Counsels, and the Congressional Oversight Committees.” http://www.whitehouse.gov/administration/eop/piab.
Because President Obama’s Privacy and Civil Liberties Board is not functioning, AAG of the OLP Schroeder has a duty contact PIAB Chairmen Hagel and Boren, the 1987-1993 Chairman Select Committee on Intelligence, to learn whether they there have been any reports of violations of the amended E.O. 13,462 as to referrals of allegations of “possible intelligence community crimes” to the AG. On August 18, 2010, Robert will be placing AG Holder’s “chain of command” attorneys on Notice of his allegation that 2010 “Jackson nonacquiescence policy” off-Budget funds were diverted to pay for the construction and maintenance of the 1984-2010 “do not exist” NSA TSP and PSP data banks, to test their compliance with E.O. 13,462. §§ CC.
On July 27, 2010, AAG of the OLC Schroeder was informed of “possible intelligence community crimes” and that he has an OLP duty to read the “FBI Agent Allison” documents along with the Robert v National Archives case file notes and e-mails. If he determines that the “FBI Agent Allison” documents corroborate Robert’s allegations, then he should inform AG Holder. Pursuant to the amended E.O. 13,462, he should also inform PIAB Co-Chairmen Hagel and Boren, beause of the existence of the 2009 stovepipe bypassing AG Holder. § DD.
AG Holder should know that if the Robert VIII v DOJ, HHS, and SSA appeal is reinstated, then the appellant will be making the “systemic official action” argument explained in the Second Circuit’s Doe v CIA, 576 F. 3d 95 (2d 2009), dicta. “…recognizing a category of viable law suits in which “access to courts claims are brought to the effect that “systemic official action frustrates a plaintiff or plaintiff class in preparing and filing suits”). He will be explaining that the “FBI Agent Allison” documents are smoking gun documents because they reveal intelligence crimes that were never investigated. §§ K, Y, Z, BB, CC, DD, II, TT, QQ, AAA.
141 The DOJ’s 2009 “Glomar Response” Exclusion explanation makes the appellant’s de novo request for the “FBI Agent Allison” documents and the connect-the-dots FBI Robert III v DOJ “Recarey extradition” documents more important because FBI Director Mueller made the 2002 decision to use the “Glomar Response” defense to withheld the documents upon which FBI Director Judge Freeh made this decision not to extradite the fugitive IMC President Recarey from Spain. After AAG of the OLP Schroeder fulfills his due diligence duty and reads the “Recarey extradition” documents along with the “FBI Agent Allison” documents and Robert v National Archive case file notes, e-mails, signed pleadings, including “c (3) exclusion” ex parte Declarations, he will know whether in National Archives AAG of the Civil Division Ogden had implemented the “Barrett nonacquiescence policy” and withheld material facts from Judge Wexler and the Second Circuit to protect DIA-CIA-FBI sources and methods. §§ D, E, Y, GG.
The 2000 Robert v National Archives mens rea of AAG of the Civil Division Ogden is important because DAG Holder made the 2000 courageous decision not to perfect the Ford v Shalala appeal that U.S. Attorney Lynch had filed pursuant to the instructions of AAG of Civil Division Ogden. AAG of the OLP Schroeder’s use of a time analysis of the “FBI Agent Allison” documents provides an opportunity to learn who in the 2000 DOJ knew FBI Agent Allison knew in 1989 of the allegation that HHS General Counsel del Real had been a 1982 covered agent when he made the 1982 “Jackson nonacquiescence policy” decision that established the standard applied to deny benefits for millions of 2000 Ford v Shalala class members. This is key information for AAG of the OLP Schroeder to know when in August, 2010 he provides AG Holder the answer to the Jackson question and the solution to the Gordon riddle. §§ R, T.
Because Danielle Gordon is a 1994-2010 Ford class member, U.S. Attorney Lynch should read the 1986-1996 Gordon signed pleadings, case file notes, and e-mails. Those documents provide AG Holder with a 1995 vertical analysis of the DOJ and FBI decision making which links the “FBI Agent Allison” documents with the “AAG Hunger Gordon” and “1995 Associate AG Gordon” memo. AAG of the OLP Schroeder, the 1995-1997 Deputy Associate Attorney General, will learn whether Associate AG Schmidt knew in 1995 that the off-OMB Budget “Jackson nonacquiesence policy” funds that paid for the 1980s “black operations” at IMC and the NSA TSP, continued to be used in 1995 to fund the “do not exist” 1984-1995 NSA TSP data banks. AAG of the OLP Schroeder can confirm this fact by contacting 1993-1997 FBI General Counsel Howard Shapiro. He knows whether in 1995 an FBI counterintelligence “plumber” unit continued to be tasked with preventing leaks of the non- disclosure agreements signed by the USG officials, including the Gordon attorneys, who knew that unaudited HHS funds paid for the 1995 “do not exist” NSA TSP data banks without the 1995 knowledge of WH Counsel Mikva, AG Reno, and DAG Gorelick. This is a 1995 “smoking gun” clandestine policy fact that triggers the application of the Bowen v City of New York equitable tolling remedy to cure the 1994-2010 Ford class due process rights. §§ C, E, J, P, T, U.
Therefore, U.S. Attorney Lynch should be discussing the “FBI Agent Allison” documents in her settlement memo upon which AG Holder will decide whether to accept the quiet settlement offer. If the Robert VIII v DOJ, HHS, and SSA appeal is reinstated on September, 3, 2010, then the appellant will also argue that the “FBI Agent Allison” documents are needed to present to Judge Sifton’s successor as evidence of the 1984-2010 DOJ-FBI stovepipes that resulted in the 1994-2010 violation of the Ford class members due process rights. §§ C-H, ZZ.
142 W. U.S. Attorney Lynch’s K & A duty to read for accuracy 1999-2001 Robert v DOJ FRCP 11 signed pleadings to determine whether there had been sham “due diligence” searches to protect national security secrets with the intent to deceive Judge Mishler, the Second Circuit, Robert, and Ford class members because of the 2001-2010 implementation of the “Jackson nonacquiescence policy” after the Ford appeal was not perfected
The appellant has placed EDNY U.S. Attorney Lynch on Notice of her K & A duty to read for accuracy the Robert v U.S. Department of Justice, 2001 WL 34077473 (EDNY), aff’d 26 Fed. Appx. 87 (2d Cir. 2002), signed pleadings, case file notes, and e-mails to determine whether there had been sham “due diligence” searches to protect national security secrets which resulted in the deception of Judge Mishler, the Second Circuit, Robert, and Ford class members. These Robert v DOJ case file notes and e-mail documents reveal the names of the DOJ attorneys who knew the “Jackson nonacquiescence policy” continued to be implemented after DAG Holder made his 2000 decision not to perfect U.S. Attorney Lynch’s Ford appeal. These documents can be compared to the de novo July 27, 2010 FOIA requested documents to determine whether 1999-2002 USG attorneys violated the NYS Judiciary Law § 487 deception of Judges and parties standard based on their good faith belief that this was necessary to protect the DIA-CIA-FBI sources and methods of using the “Jackson nonacquiecence policy” to pay for “black operations” not paid for with classified OMB Budget funds. §§ E-H, K, M, CC.
The appellant is seeking the release of the July 27, 2010 de novo FOIA requested DOJ documents to prove to AG Holder that SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee testimony remains in 2010 as uncured false testimony with the knowledge of AUSA Mahoney and her command and control officers who ordered her to implement the 1986 “Barrett nonacquiescence policy” of AAG of the OLC Cooper and the Unitary Executive theory of 2001-2009 VP Counsel-Chief of Staff Addington. After U.S. Attorney Lynch reads the Robert v DOJ signed pleadings, case file notes, and e-mails and the “FBI Agent Allison” documents, she will know whether USG attorneys had withheld material facts from Judge Mishler and the Second Circuit with the intent to deceive the Article III Judges. If so, then U.S. Attorney Lynch knows she will have a K & A duty to inform AG Holder in order that AG Holder has accurate facts when he considers the Robert VIII v DOJ, HHS, and SSA quiet settlement offer prior to the September 3, 2010 appeal reinstatement date. §§ B, D-H, V, Y, Z.
In his March 22, 2001 decision, Judge Mishler relied upon the accuracy of the signed pleadings filed by EDNY AUSA Mahoney on behalf of 1999-2001 EDNY U.S. Attorney Lynch, AAG of the Civil Division Ogden, Associate AG Marcus, DAG Holder, and AG Reno. Judge Mishler deferred to AG Reno’s FOIA Officers’ explanations of their fruitless searches for the “Diaz”, “AAG Hunger-Gordon”, “Begleiter”, and “FBI Agent Allison” documents they could not locate. “…the DOJ has demonstrated it discharged its statutory duty of searching for documents responsive to these documents, but that no such documents were located.” Id. 2.
As per the July 27, 2010 de novo FOIA requests, AG Holder’s FOIA Officers will be applying AG Holder’s March 19, 2009 FOIA Guidelines in their de novo 2010 searches for the “Diaz”, “AAG Hunger-Gordon”, “Begleiter”, and “FBI Agent Allison” documents. U.S. Attorney Lynch can compare the 2000 “due diligence” searches of AG Reno’s FOIA Officers as explained to Judge Mishler, to the due diligence searches of AG Holder’s 2010 FOIA Officers.
143 As to the “Diaz” documents, Judge Misher explained that the plaintiff was notified that the Diaz v Chater, cv 95-1817 (N.D. Tex.), settlement documents were from the Northern District of Texas and searches of the DOJ Civil Division did not uncover any documents:
In so holding, we note that, in responding to a FOIA request, an agency is obligated to search only those documents that are in its custody and control. An agency's FOIA obligations do not extend to the documents of other agencies to which the FOIA request has not been made. See Robert v. National Archives, No. 98 CV 3598 (E.D.N.Y. May 22, 2000), aff'd, 2001 WL 38277 (2d Cir. Jan. 12, 2001) (unpublished disposition). Id. n.4.
The “Diaz” settlement documents reveal the mens rea of the DOJ attorneys who settled the Fifth Circuit Texas SSI recipients complaint that the Jackson regulation, 20 C.F.R. § 416.1130(b), should be applied in Texas. The “Diaz” settlement documents contain evidence that DOJ attorneys knew HHS General Counsel Nominee Astrue’s June 22, 1989 Senate testimony was false because the “nonacquiescence” policy did not end prior to his becoming HHS General Counsel in 1989. The “Diaz” documents contains evidence of whether the Diaz settlement was because of the facial denial of the equal protection rights of the Texas Diaz plaintiffs who would in 1999 become Ford class members with a certification date of April 9, 1994. §§ A, C.
As per the July 27, 2010 “Diaz” FOIA request filed with DOJ Civil Division FOIA Officer Kovakas, he will locate the “Diaz” documents in the archived DOJ Diaz case file. When U.S. Attorney Lynch fulfills her K & A duty and reads those documents, she will know why AG Reno’s FOIA Officer could not “locate” the “Diaz” documents and whether that “due diligence” information was intended to deceive Judge Mishler. Upon information and belief, U.S. Attorney Lynch will learn that the “Diaz” documents were intentionally withheld from Robert and Judge Mishler because they revealed that the Texas U.S. Attorney and AAG of the Civil Division Hunger, who approved the class settlements, knew that the same violation of the equal protection of rights of the Texas Diaz class, was being visited upon the Ford class of SSI recipients residing in the 47 States that were not the Seventh Circuit states of Illinois, Indiana, and Wisconsin. § G.
As per the July 27, 2010 de novo FOIA request for the “AAG Hunger-Gordon” FOIA request, DOJ FOIA Officer Kovakas can locate the documents in the archived DOJ Gordon case file which includes the case file notes and e-mails that reveal the mens rea of the universe of 1986-1996 DOJ attorneys who worked on the Gordon case. The appellant will be citing AAG of the Civil Division West to the “AAG Hunger-Gordon” documents because they solve the “Gordon” riddle of whether SSA Commissioner Astrue’s June 22, 1989 Senate testimony was false or SG Days provided false facts to the Supreme Court. Like the “Diaz” documents, these documents provide 2010 Notice to AAG of the Civil Division West of the equal protection violations being visited upon the 1994-2010 nationwide Ford class members. He has his own K & A duty and review the 1984-2010 implementation of the Unitary Executive theory whereby the INS Mendoza offensive collateral estoppel standard has been applied to 1994-2010 Ford class members as explained by SG Days and AAG Hunger in their February, 1996 Gordon Brief. “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).” Id. n. 4. §§ T, U.
144 As to the “Begleiter” documents, Judge Mishler deferred to the Declaration of AUSA Mahoney that DOJ had “no knowledge or record” of the “Begleiter” documents:
In the Amended Complaint, plaintiff describes the “Begleiter” documents as “the universe of documents upon which Chief Begleiter based his post-July 25, 1985 nonacquiesence policy that was contrary to Southern District of New York Giuliani's policy to “just say no” to the nonacquiescence policy of HHS General Counsel del Real and Attorney General Meese and the July 25, 1985 Congressional testimony of DAAG Kuhl.” Amended Complaint ¶ 47. Here to, it is clear that the DOJ possesses no documents responsive to this request. FN5. Robert Begleiter is the former Chief of the Civil Division of the Office of the United States Attorney for the Eastern District of New York. The United States Attorney's Office for the Eastern District of New York has no knowledge or record of Mr. Begleiter engaging in the decision making process upon which plaintiff's claim for “Begleiter” documents is predicated. Thus, the United States Attorney's Office has been unable to locate any documents responsive to plaintiff's request. Declaration of Kathleen A Mahoney ¶ 9. Accordingly, it is clear that plaintiff has not been wrongfully denied access to any so called “Begleiter” documents. See Forsham v Harris, 445 U.S. 169, 182 (1980) (“an agency must first either create or obtain a record as a prerequisite to its becoming an ‘agency record’ within the meaning of the FOIA”). Id.3. Emphasis Added.
As per the July 27, 2010 “Begleiter” FOIA request, the appellant has placed DOJ Civil Division FOIA Officer Kovakas on Notice that his due diligence search begins with the August 14, 1986 letter from Chief Begleiter to Manuel A. Rodriguez, Attorney Advisor of the EOUSA. http://www.snowflake5391.net/begleiter.pdf. That letter speaks for itself as to Chief Begleiter’s mens rea and 1986-1994 participation in the Ruppert and Gordon litigation decisions to defend 1986-1994 “Jackson nonacquiescence policy” after DAAG Kuhl’s July 25, 1985 House testimony that the “nonacquiecence” policy had ended. Chief Begleiter’s documents are connect-the-dots documents because AAG of the Civil Division Willard had made Chief Begleiter the DOJ supervising attorney of the “Fraud Against the Government” of Robert, initiated by HHS General Counsel del Real as revealed in the sealed Robert v Holz classified documents. Chief Begleiter was the supervising attorney of AUSAs Greenwald and Noyer and knew whether facts had been intentionally withheld to deceive Judge Wexler and Robert. § F.
Based on Chief Begleiter’s August 14, 1986 letter explaining the “Jackson nonacquiescence policy” being defending in Ruppert, the appellant instructed FOIA Officer Kovakas, who on August 31, 2009 had released the 1994 PCA and 1995 FISA OLC opinions of AAG of the OLC Dellinger, to contact Acting AAG of the OLC Barron to learn whether an unclassified or classified 28 U.S.C. §530 D OLC “Jackson nonacquiescence policy” documents exists. If Acting AAG of the OLC Barron determines that no OLC “Jackson nonacquiescence policy” document exists, then this red flags the 1986 fact issue of who made the decision the Seventh Circuit had “incorrectly” decided Jackson. If asked and if provided a non-disclosure agreement waiver, former-Chief Begleiter will inform AG Holder whether the source of his “Jackson nonacquiescence policy” defense was AAG of the Civil Division Willard. §§ E-H.
145 As to the “FBI Agent Allison” documents, Judge Mishler cited to the Second Circuit’s Robert v National Archives decision and relied upon the Declaration of FBI FOIA Officer Scott Hodes, a former-OIP FOIA attorney, that “responsive” documents could not be located:
As set forth in the Amended Complaint, as well as plaintiff's Memorandum in Opposition to the Defendant's Motion to Dismiss, plaintiff's “FBI Agent Allison” request seeks all of the documents in the “FBI's Agent Allison” file including “written notes” that FBI Agent Carol Allison allegedly took during an interview that plaintiff had with the FBI at the office of Independent Counsel IC Walsh. Plaintiff made his request for the “FBI Agent Allison” documents directly to FBI Director Louis Freeh. FN6. By letter of October 13, 1999, plaintiff was notified that a search of the FBI's Central Records System did not identify any documents responsive to his “FBI Agent Allison” request. Declaration of Scott A. Hodes Ex. T. The record reveals that the FBI engaged in a reasonable search to uncover any “FBI Agent Allison” documents, and thus discharged its FOIA obligations. See Second Declaration of Scott A. Hodes; Jiminez v F.B.I. 938 F. Supp. 21,25 (D.D.C. 1996) (“The issue in a FOIA case is not whether the agencies' searches uncovered responsive documents, but rather whether the searches were reasonable”). Accordingly, no such documents are being wrongfully “withheld” from plaintiff, and his FOIA action with regard to this category of documents is thus likewise meritless. Id. 4. Emphasis Added.
As per the July 27, 2010 FOIA request for the “FBI Agent Allison” documents filed with FBI Chief FOIA Officer Hardy, the appellant advised that these are connect-the-dots documents to the “FBI Abshire”, the September 3, 1985 Robert II v CIA “North Notebook” log of the communication with FBI Executive Assistant Director of Investigations “Buck” Revell, the Robert III v DOJ “Recarey extradition” documents withheld pursuant to FBI Director Judge Freeh’s use of the “Glomar Response” defense, the Robert VII v DOJ “FISC Robert” documents, and the 1987 FBI copy of the “IMC Investigation Final Report” documents. The appellant informed FBI Chief FOIA Officer Hardy that he should consult directly with FBI Agent Allison after he reads the “FBI Abshire” and FBI “Recarey extradition” documents. FBI Director Mueller should know the name of her March 29, 1989 command and control officer when he reviews for accuracy the June 22, 1989 Senate Finance Committee testimony of Associate WH Counsel Astrue that the nonacquiescence policy had ended to determine whether a 1989 FBI “stovepipe” bypassed FBI Director Judge Sessions. §§ J, K, L. M, N. O, V, CC, DD.
The appellant also informed FBI Chief FOIA Officer Hardy of the July 27, 2010 de novo NARA FOIA request for the Robert v National Archives “Bulky Evidence File” documents which contain the NARA copy of the “FBI Agent Allison” documents. If the NARA FOIA Officer is ordered to affirm the August 11, 2008 decision of NARA Deputy Archivist Thomas re the “deemed responsive” and the “deemed unresponsive” documents and uses a 2010 “Glomar Response” defense, then the 2010 factual issue of who makes the 2010 “Glomar response” decisions on behalf NARA and FBI, can be presented to AG Holder. Then he will learn of the 2010 FBI “stovepipe” that bypasses FBI Director Mueller and AG Holder to provide them with “plausibility defenses” to SSA Commissioner Astrue’s uncured false testimony. § J.
146 If FBI Chief FOIA Officer Hardy and the NARA FOIA Officer both use the “Glomar Response” defense to withhold the “FBI Agent Allison” documents, then DOJ Chief FOIA Officer Perrelli can consult with NARA Chief FOIA Officer General Counsel Gary Stern, CIA Chief FOIA Officer CIA Adolfo Tarasiuk, Jr., DOD Chief FOIA Officer Michael Rhodes, and OMB Chief FOIA Officer Robert Shea. They can determine whether the release of the “FBI Agent Allison” documents should be presented to ISCAP because they are connect-the-dots documents with the “FBI Abshire”, CIA “North Notebook Revell”, NARA “Peter Keisler Collection”, NARA “Perot”, DOJ “FISC Robert”, and FBI “Recarey extradition” documents that reveal whether the 1984-2010 FBI counterintelligence unit knew that the “black operations” were illegally funded with off-OMB Budget “Jackson nonacquiescence policy” funds. Then the ISCAP can determine whether a 1984-2010 a daisy-chain of shadow government patriots have made Top Secret decisions without the knowledge of Presidents Reagan, Bush, Clinton, Bush, and Obama, in order that the Presidents have had plausible deniability defenses to federal law violations which the shadow government attorneys knew were impeachable offenses. § N.
Given the gravity of the Robert’s allegation that Robert v DOJ attorneys implemented the “Barrett nonacquiesence policy” and withheld FBI facts with an intent to deceive Judge Mishler and the Second Circuit, DOJ Chief FOIA Officer-Associate AG Perrelli can contact former-FBI FOIA Officer Scott Hodes directly. If provided a nondisclosure waiver, he will provide details of his litigation orders in preparing his Declaration re his search for the “FBI Agent Allison” documents. He now administers a FOIA blog. See http://thefoiablog.typepad.com/about.html.
In his March 22, 2001 decision, Judge Mishler also dismissed the causes of action seeking the release of the “Starr”, “Bromwich”, “OPR Rogers” and “FBI 62-0” file documents because the DOJ determined that it had already released all “non-exempt materials responsive documents” to these FOIA requests. The 2010 de novo FOIA requests seek those documents:
Plaintiff's claims concerning the “Starr” documents, the “Bromwich” documents, the “OPR Rogers” documents, and the “FBI 62-0 file” documents must also be dismissed because the DOJ has demonstrated that it already furnished plaintiff with all non-exempt materials responsive to these requests. Plaintiff has failed to raise a material issue of fact concerning the propriety, under the FOIA exemptions, of the limited redactions and document exclusion that the DOJ has made in response to his requests for these categories of documents. Accordingly, plaintiff cannot demonstrate that the DOJ has “improperly” “withheld” any documents responsive to these requests. Id. 4-5. Emphasis Added.
As to the “Starr” documents, those documents were discussed in § T above. As per the July 27, 2010 de novo “Starr” FOIA request filed with SG FOIA Officer Kaletus L. McCain, he will review the documents that as per Judge Mishler’s decision were released to Robert, but which Robert never received. Robert will cite AG Holder to the “Starr” documents as “smoking gun” evidence that Associate WH Counsel Astrue’s June 22, 1989 and SSA Commissioner Nominee Astrue’s January 24, 2007 Senate Finance Committee testimony were false because in May, 1991 SG Starr ratified HHS General Counsel Astrue’s decision to continue to implement the 1982 Jackson and 1990 Ruppert nonacquiescence policies that SG Starr knew continued.
147 As to the “Bromwich” and “OPR Rogers” documents, Judge Mishler determined that the OPR had provided plaintiff with “all non-exempt materials responsive to his request” and held that these were undisputed facts when granting the USG Summary Judgment Motion:
These claims apparently arise out of several document requests made by plaintiff directly to the OPR or which were referred to the OPR. It is undisputed that on August 18, 1998, the OPR provided plaintiff with a written response to these requests, enclosing many of the requested documents. Subsequently, on September 17, 1998, the OPR released additional responsive documents to plaintiff. In total, the OPR has withheld only one complete document responsive to plaintiff's request, and has redacted certain information from other documents. Plaintiff has failed to raise a genuine issue of material fact concerning the propriety of the OPR's redactions and the exclusion of one document from its release, and thus, plaintiff cannot show that any “Bromwich” or “OPR Rogers” documents have been “improperly” “withheld”. Id. 5. Emphasis Added.
As to the de novo July 27, 2010 FOIA request for the “Bromwich” documents, these are important documents because they reveal why the “Glomar Response” defense was used. They also reveal why 1994-1999 IG Bromwich never conducted an investigation of Robert’s allegations that an illegal nonacquiescence policy was being implemented which resulted in the continuation of “Jackson nonacquiescence policy” funds being diverted to pay for “black operation” without the knowledge of AG Reno. IG Bromwich was a 1987-1989 Associate Counsel for IC Walsh. He was the lead prosecutor of Lt. General North on March 29, 1989 when Robert was being interviewed by FBI Agent Allison within IC Walsh’s office. He also had been a 1983-1987 SDNY AUSA when U.S. Attorney Giuliani implemented his honorable and courageous “just say no” to the “nonacquiescence” policy of AAG of the Civil Division Willard.
If asked, former-IG Bromwich will advise AG Holder whether he knew about the 1995 DOJ “nonacquiescence” policy of AAG of the Civil Divisions Hunger, Associate AG Schmidt, and SG Days. This is an important inquiry because of their 1995 nondisclosure agreements. On June 10, 1998, IG Bromwich testified before the House Intelligence Committee in support of the Intelligence Community Whistleblower Act of 1998. He highlighted the problem of USG retaliation against putative IC whistleblowers that deterred their whistleblowing:
Second, the legislation requires notification to Congress of both the substantive allegation of a “serious or flagrant” problem within an intelligence activity as well as reprisal or threat of reprisal stemming from an employee’s reporting of the allegation. It is important to protect employees who bring such complaints to the attention of management or the OIG. The threat of reprisal against a whistleblower is real. Furthermore, the perception that potential whistleblowers will be subjected to a reprisal by management is also real. This legislation is appropriately tailored to address both the perception and the reality of reprisals. Id. 4. Emphasis Added. http://www.fas.org/irp/congress/1998_hr/ts061098.htm
148 On June 20, 2001 then-former IG Bromwich had testified at a Senate Judiciary Committee: Restoring Confidence in the FBI. He explained that a DOJ Office of the IG had not been established until 1988 because of an Article I and Article II separation of powers concern re the DOJ IG reporting to the Congress allegations of misconduct by Article II employees. He tracked the DOJ IG “omission” to AG Levi’s establishment of the OPR:
Although there were multiple reasons for the omission of the Justice Department from the scope of the original Inspector General Act, the principal arguments were that the Justice Department already had an internal affairs-type entity – the Office of Professional Responsibility, which had been established by Attorney General Levi in the mid-1970s – and that there were separation of powers-related concerns about putting an independent inspector general, with reporting responsibilities to the Congress, in the department headed by the Attorney General, the nation's chief law enforcement officer. For these reasons and others, the Justice Department OIG was not created until 1988 when Congress passed the Inspector General Act Amendments of 1988. Id. 1. Emphasis Added. http://www.fas.org/irp/congress/2001_hr/062001_bromwich.html.
After AG Holder reads the “FBI Abshire”, FBI “Recarey extradition”, NARA “Robert v National Archives ‘Bulky Evidence File’”, NARA “Peter Keisler Collection”, NARA “Perot”, and the “OMB Jackson” documents, AG Holder can ask 1987-1989 Associate Counsel for IC Walsh- 1994-1999 IG Bromwich whether he knew of any allegations that 1981-1985 HHS General Counsel del Real and 1989-1993 HHS General Counsel Astrue had been covered agents who were tasked to divert off-OMB Budget “Jackson nonacquiescence policy” funds to pay for DIA-CIA- FBI “black operations” that were not funded with classified OMB-Budget funds. If not, then the 1995 mens rea of IG Bromwich takes on greater importance after AG Holder reads the February, 1996 Gordon Brief of SG Days and AAG of the Civil Division Hunger with its admission that the HHS nonacquiescence policy did not end prior to 1989. These are facts that AG Holder has to reconcile with SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee testimony that the nonacquiescence policy had ended prior to 1989. §§ A, C, D, E, F, G, H, I.
As per the July 27, 2010 de novo FOIA request for the “OPR Rogers” documents filed with OPR FOIA Officer, these OPR documents reveal OPR Deputy Director Rogers investigation of Robert’s complaints that DOJ attorneys were implementing the Jackson and Ruppert “nonacquiescence” policies. Those documents reveal OPR Deputy Director Rogers’s application of the DOJ “good faith” standard applied to the DOJ attorneys’ defending the “nonacquiescence” policy decisions contrary to the “Thornburgh-Giuliani” acquiescence policy as explained by OPR Director Shaheen in his January 9, 1989 letter to Robert:
Although, in our view, the position adopted by Mr. Giuliani's office -- not to defend the Secretary of Health and Human Service's non-acquiescence policy -- is the correct legal formulation, we do not accept the proposition that espousal of non-acquiescence by other U.S. Attorneys' offices constitutes misconduct. We believe that non-acquiescence is a defense that can be supported by a good faith argument for an extension,
149 modification, or reversal of existing law and, thus, does not violate the Code of Professional Responsibility. Emphasis added. http://www.snowflake5391.net/1-9-89Shaheen.pdf.
Because AG Holder’s 2009-2010 EOUSA Director Jarrett was the 1998-2008 OPR Director who succeeded OPR Director Michael Shaheen, he has his own 2010 K & A duty to read the “OPR Rogers” documents along with his review of the “Diaz” documents and the 2007 Ford v Shalala remedy that AAG of the Civil Division Keisler approved with the knowledge of AUSA Mahoney. If asked, EOUSA Director Jarrett will advise his 2010 supervising attorneys: AAG of the Civil Division West, Associate AG Perrelli, Acting DAG Grindler, and AG Holder, whether those OPR documents contain smoking gun evidence that on January 24, 2007 SSA Commissioner Astrue had lied to the Senate Finance Committee that the nonacquiescence policy had ended prior to his becoming HHS General Counsel in 1989. The documents reveal the Jackson and Ruppert nonacquiescence policy continues in 2010. EOUSA Director Jarrett can read the “OPR Rogers” documents and inform AG Holder the name of the “command and control” officer of OPR Attorney Rogers who was not OPR Director Jarrett. §§ J, K, M, N, O.
Judge Mishler also affirmed the OPR redaction of “law enforcement” documents. He held that a FOIA Exemption 7(c) included an “embarrassment” factor to protect the names of law enforcement officers. He determined that FOIA Exemption 7 (c) trumped the “public interest” standard of releasing the documents that would reveal the names of the DOJ employees:
It is clear that the “Bromwich” and “OPR Rogers” documents were compiled for law enforcement purposes. It is additionally clear that, the OPR was justified in withholding the names and other personal information regarding department employees because, if released, in view of plaintiff's far reaching allegations of departmental wrongdoing, this personal information could have been potentially embarrassing to these individuals. Plaintiff has demonstrated no substantial public interest in obtaining this information that would justify subjecting department employees to such embarrassment. See Beck v Dep’t of Justice, 997 F.2d 1489, 1491 (D.C.Cir. 1993)(“in applying Exemption 7(C) we have noted that ‘we balance the privacy interests that would be compromised by the disclosure against the public interest in release of the requested information”); Jiminez, 938 F. Supp. at 29 (“[i]n determining whether exemption 7(C) applies, the Court must balance the privacy interests of the individual against the public interest in the disclosure of the withheld information”). Accordingly, the OPR acted within the bounds of the above-quoted FOIA exemption in withholding this personal information. Id. 6. Emphasis Added.
The use of the “embarrassment” factor takes on greater importance when applying AG Holder’s March 19, 2009 presumption of disclosure so that there will be DOJ transparency and accountability at the same time USG employee privacy rights are protected. If a derivative classification decision is rendered, then the derivative classifier will be identified. That derivative classification decision will be subject to an E.O. 13,256 § 1.7 and ISCAP review to determine whether this was a rogue FBI counterintelligence “plumber” unit investigation §§ L, M, O, AAA.
150 AG Holder’s 2010 FOIA Officers will also decide whether to use FOIA Exemption 7 (c) in their de novo FOIA decisions with their own 2010 knowledge that SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee testimony that the nonacquiescence policy had ended remains as 2010 uncured false testimony. They will decide whether the FOIA Exemption (c) “privacy-embarrassment” standard trumps the “public interest” in knowing whether OPR Deputy Attorney Rogers knew the FOIA requested documents contained evidence that 1998 AUSA Mahoney knew that the Jackson and Ruppert nonacquiescence policies were applied to deny Ford class members benefits contrary to Associate WH Counsel Astrue’s June 22, 1989 Senate Finance Committee testimony the nonacquiescence policy had ended. §§ B-H.
Judge Mishler also affirmed the OPR redaction of documents because of the proper use of FOIA Exemption 5 “deliberative process” to protect intra-agency memorandums or letters:
Here, the OPR redacted a portion of one document which sets forth the notes of a telephone conversation on April 10, 1992, concerning an OPR investigation that plaintiff requested. This redacted information is clearly of a deliberative and predecisional nature, and thus was appropriately withheld under the FOIA exemptions. Jiminez, 938 F. Supp. at 28 (“Deliberative process and attorney work-product materials fall within this exemption ... [it] protects the Government's internal consultative process by preserving the confidentiality of opinions, recommendations, and deliberations underlying government decisions and policies”). Id. 6. Emphasis Added.
AG Holder’s 2010 FOIA Officers will decide whether to use FOIA Exemption 5 in the de novo OPR FOIA decision with the knowledge of SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee testimony that the nonacquiescence policy had ended prior to his becoming the HHS General Counsel in 1989, was false. The OPR “deliberative and predecisional” documents reveal names of 1999 DOJ attorneys who made the decisions that the Jackson and Ruppert nonacquiescence decisions were based on a good faith belief “for an extension, modification, or reversal of existing law ” by application of the “Thornburgh- Giuliani” standard explained in OPR Attorney Shaheen’s January 9, 1989 letter. §§ D-H, YY.
Judge Mishler also affirmed the redaction of documents because of the proper use of FOIA Exemption 2 to protect the OPR’s practices and internal rules:
The OPR properly redacted its internal case numbers from the documents produced to plaintiff under the FOIA provision which exempts from release information which is “related solely to the internal personnel rules and practices of an agency.” 5. U.S.C. § 552(b)(2). Here, the OPR has represented that it was necessary to redact these file numbers to protect against unauthorized access to the Department computer system. Plaintiff has not demonstrated how release of the redacted information would serve any public interest. Declaration of Scott A. Hodes ¶¶ 7(d) and 9(d). Accordingly, the OPR did not improperly withhold this “agency practices” information. See Jiminez, 938 F.Supp. at 27(“The law is clear that agencies may delete
151 sensitive notations on documents where they indicate an agency's practices as to internal routing and distribution”). Id. 5. Emphasis Added.
AG Holder’s 2010 FOIA Officers will decide whether to use FOIA Exemption 2 in the de novo OPR FOIA decision. This is an important decision because the appellant is alleging that the OPR review process is fatally flawed because of the national security license provided DOJ attorneys to deceive Judges and plaintiffs when they are ordered to use the “c (3) exclusion” defense. The 2010 FOIA Officers will decide whether the OPR’s “internal personnel rules and practices” include a special rule for DOJ attorneys ordered to use the “c (3) exclusion” defense. If so, then AG Holder will learn from reading the “OPR Rogers” documents whether the special “c (3) exclusion” rule was applied to the DOJ attorneys who implemented the 1982-2000 “Jackson nonacquiescence policy” in order to protect DIA-CIA-FBI sources and methods necessary to protect the national security. AG Holder will learn whether the command and control officer of Deputy Attorney Rogers who made the decision to apply the special “c (3) exclusion” rule” was a DOJ official or a shadow government patriot. AG Holder should know this fact when he considers EOUSA Jarrett’s recommendation whether AG Holder should accept the appellant’s Robert VIII v DOJ, HHS, and SSA offer of a quiet settlement prior to the September 3, 2010 Second Circuit appeal reinstatement deadline. §§ A, D-H, J, K, L, M, N.
As to the “FBI 62-0 file” documents, Judge Mishler determined the FBI had properly provided the plaintiff with the non-exempt documents, including the redacted documents that were responsive to his requests explained in the Declarations of FOIA Officer Hodes. This FBI holding as to the use of FOIA Exemption 2, has 2010 significance if the FOIA requested “FBI Abshire” documents confirm Robert’s grave allegation that FBI Director Judge Webster knew in 1985 that a “black operation” was conducted at IMC to provide medical supplies and treatment of the Contras in violation of the Boland Amendment, and did not inform President Reagan:
Here, the record demonstrates that the FBI meticulously reviewed each document and carefully assessed whether redaction of the names was merited. See Second Declaration of Scott A. Hodes ¶¶ 16-20. The redactions were made only after the FBI determined that the individuals mentioned were FBI Special Agents or lower-level agents who are not in policy-making or decision-making positions. Id. ¶¶ 17, 20. Accordingly, prior to making any redactions, the FBI determined that redacting the names would not conceal anything concerning the operations or activities of the government. The FBI engaged in this apparently time consuming deliberative process in order to ensure that FBI agents would be protected from unnecessary contact or attention that would hinder their ability to conduct investigations and execute their other duties. This, when balanced against the fact that plaintiff has demonstrated no substantial public interest in learning the redacted names, persuades us that the FBI properly redacted this “personnel” information to avoid “a clearly unwarranted invasion of personal privacy.” See Beck, 997 F.2d at 1494 (“Under either Exemption 6 or Exemption 7(C) the Government may release information about personal employment files only if such release would advance the public interest served by FOIA”). Accordingly, these redactions were authorized under the FOIA. Id. 6. Emphasis Added.
152 As per the July 27, 2010 de novo FOIA request for the “FBI 62-0 file” documents filed with FBI Chief FOIA Officer Hardy, he will decide whether to apply FOIA Exemptions 2, 6 and 7 (C) with the knowledge of the content of the “FBI Abshire” documents. When FBI Chief FOIA Officer Hardy reads the “FBI 62-0” documents, then he will know whether FBI Director Judge Webster’s December 1986 “task force of departmental general counselors” and the “redacted” FBI officials in the “FBI 62-0 file” documents, knew that a “black operation” had been conducted at IMC in violation of the Boland Amendment without the knowledge of President Reagan. After AG Holder reads these FBI documents, he will know the redacted names of the “FBI 62-0 file” officials who knew FBI Director Judge Webster knew a DIA-CIA-FBI “black operation” was conducted at IMC which used unaudited HHS funds in violation of the Boland Amendment, and that FBI Director Judge Webster did not inform President Reagan, the Tower Commission, the joint Senate-House Committee, and IC Walsh of this Top Secret fact. § M.
As per the July 27, 2010 de novo FBI FOIA request, Robert has requested that FBI Chief FOIA Officer Hardy consult with FBI General Counsel Caproni. She knows whether the Robert VII v DOJ “FISC Robert” documents of AG Meese’s FISC Robert application and FBI Director Judges Webster continued certifications for the FISC Robert surveillance warrants, contained the uncured false information that the FBI had evidence that Robert was a terrorist or an agent of a foreign power. FBI General Counsel Caproni knows whether the “FBI 62-0 file” and Robert VII v DOJ “FISC Robert” documents are road maps that lead to the 1980s FBI counterintelligence “plumber” unit that protected the “black operation” at IMC. She knows whether the documents reveal an FBI stovepipe bypassed FBI Director Judge Sessions. § Y.
The appellant has placed EDNY U.S. Attorney Lynch on Notice that AG Holder will learn from reading the “FBI 62-0 file” documents along with the “FBI Agent Allison” and “FBI Abshire” documents, whether a 1982-2010 FBI stovepipe was established pursuant to the Unitary Executive theory to provide a plausible deniability defense for FBI Directors Judge Webster (1978-1987), Judge Sessions (1997-1993), (Acting) Clarke (1993), Judge Freeh (1993-2001), and Mueller (2001-). The FBI Directors were not to know of the serial violations of the § 413 reporting duty of the National Security Act, “exclusivity” provision of the FISA, domestic limitation on the military of the PCA, and the Social Security Act. §§ J, K, J, N, Y.
As to the “Noyer” documents, Judge Mishler deferred to AUSA Mahoney’s argument that the documents of the deceased EDNY AUSA M. Lawrence Noyer were properly withheld based on the principle of res judicata of Judge Wexler’s unappealed Robert v Holz decision in which Robert had sought the HHS “Fraud Against the Government” documents:
According to the allegations in the Amended Complaint, “[o]n January 12, 1988 Judge Wexler held a FOIA trial regarding the release of the universe of FOIA withheld documents in Robert v. Holz.” Amended Complaint ¶ 26. Judge Wexler ruled that certain documents would not be released and the trial testimony of AUSA Noyer would be sealed. Plaintiff subsequently made a FOIA request to obtain these sealed “Noyer” documents. Plaintiff's “Noyer” claim stems from the fact that the DOJ has not released to plaintiff the sealed documents and the sealed testimony of AUSA Noyer. Amended Complaint ¶¶ 26-36. Emphasis Added.
153 Plaintiff's request for “Noyer” documents is nothing more than an effort to have this Court second-guess Judge Wexler's decision to seal the “Noyer” documents and testimony. Plaintiff appears to acknowledge as much in the Amended Complaint by advising the Court that “a formal request to unseal the sealed Robert v. Holz trial transcript will be made to Judge Wexler.” Amended Complaint ¶ 37. Accordingly, the doctrine of res judicata prohibits this Court from reaching the merits of plaintiff's “Noyer” document claim. Id. 7. Emphasis Added.
Robert has informed EDNY U.S. Attorney Lynch that he did not file a de novo request for the “Noyer” documents because they will be subject to review in Robert’s E.O. 13, 256 request for a § 1.5 declassification decision. The 1985 HHS “Fraud Against the Government” investigation of Robert documents are subject to the 25 year automatic declassification rule in 2011. § L.
Robert also informed EDNY U.S. Attorney Lynch that she has a K & A duty to read the sealed Robert v Holz documents, case file notes, e-mails, and determine why AUSA Noyer replaced AUSA Greenwald, and whether Chief Begleiter had implemented the “Barrett nonacquiescence policy” and withheld material facts with an intent to deceive Judge Wexler and Robert in violation of the NYS Judiciary Law § 487 deception of Judges and parties penal standard. After U.S. Attorney Lynch reads the sealed Robert v Holz documents and case file notes, she will decide whether she will comply with her April 1, 2009 NYS Rule 3.3(a)(3) duty to cure the misrepresentations of fact and law made to Judge Wexler in Robert v Holz. §§ E-H, AAA.
Judge Mishler deferred to AUSA Mahoney’s argument that the plaintiff had not exhausted his administrative remedies for the “Kuhl”, Charles Robert criminal investigation file”, “Mikva”, and “Allbray” FOIA requested documents:
Additionally, with regard to these categories of documents, the plaintiff has not adequately identified requests upon which he may predicate these FOIA claims. As stated above, in order to demonstrate exhaustion of administrative remedies with respect to FOIA claims, a plaintiff must demonstrate that a proper FOIA request was made. With respect to several of plaintiff's claims, including, inter alia, those claims for “Kuhl”, “Robert criminal investigation”, “Mikva” and “Allbray” documents, plaintiff does not specify the date of any written request to the DOJ component where the records were maintained, or any other information identifying or describing the alleged requests. Accordingly, the record does not reveal that the plaintiff exhausted his administrative remedies with respect to these claims, and this Court is therefore, without jurisdiction to hear these claims. Id. 8. Emphasis Added.
As to the “Kuhl” documents, Robert has placed U.S. Attorney Lynch on Notice of her K & A duty to read DAAG Kuhl’s July 25, 1985 House Judiciary Subcommittee testimony that the “nonacquiescence” policy had ended on June 3, 1985 and that Jackson was not one of the listed nonacquiescence cases. Then when she reads SSA Commissioner Astrue’s January 24, 2007 Senate testimony, she can connect-the-dots to the false 1985 and the false 1989 testimony. § C.
154 As to the “Charles Robert criminal investigation file” documents, Robert has filed a de novo FOIA request. He placed U.S. Attorney Lynch on Notice of her K & A duty to read the DOJ Robert v Holz documents upon which AUSA Noyer based his representation to Judge Wexler that the “Fraud Against the Government” investigation of Robert had ended. Upon information and belief, she will learn that in May, 1987 the honorable AAG of the Criminal Division Weld determined to end the “Fraud Against the Government” investigation of Robert when in May, 1987 he had also determined to end the joint FBI-DOJ-HHS “Fraud Against the Government” investigation of IMC after he read the “Perot” documents that President Reagan provided AG Meese and FBI Director Judge Webster on February 25, 1987. §§ Y, Z, AA, BB.
As to the “Mikva” documents, Robert informed U.S. Attorney Lynch that the “Associate AG Schmidt’s 2005 Gordon memo” will reveal whether Associate AG Schmidt had provided accurate information to WH Counsel Mikva regarding the DOJ 1995 nonacquiescence policy that was contrary to Associate WH Counsel Astrue’s June 22, 1989 Senate Finance Committee testimony. WH Counsel Bauer and AG Holder will solve the Gordon riddle when they read that document along with the 1995 “AAG Hunger Gordon” documents. AG Holder will know that Associate AG Schmidt’s 1995 mens rea affects AG Holder’s 2010 Ford remedy. §§ C, T, U.
As to the “Allbray” documents, Robert has placed U.S. Attorney Lynch on Notice of her K & A duty to contact former-Chief of the Civil Division Igou Allbray, who succeeded Chief Begleiter, and learn why he believed that the EDNY U.S. Attorneys should have implemented the “just say no” policy of SDNY U.S. Attorney Giuliani. If he is provided a nondisclosure agreement waiver, then he too will advise whether Chief Begleiter and he both knew that HHS General Counsel del Real had been a covered agent when he made the 1982 “Jackson nonacquiescence policy” decision that they both defended with the knowledge of the sworn July 25, 1985 House testimony of DAAG Kuhl that the nonacquiescence policy had ended.
On January 24, 2002, the Second Circuit affirmed Judge Mishler’s decision as to the plaintiff’s appeal of the four sets of documents: “The Charles Robert Criminal Investigation”, “Noyer”, “Bromwich”, and “OPR Rogers” documents:
Having reviewed all of Robert's other contentions, we affirm the judgment for substantially the same reasons as set forth in the district court's Memorandum of Decision and Order. Id. 88.
The Second Circuit also rejected the appellant’s Barnicki v Vopper First Amendment argument which he made for the first time in the appeal as grounds for a Second Circuit to reverse Judge Mishler’s FOIA decision and remand the case with instructions that Judge Mishler read in camera the FOIA withheld and redacted documents:
We note that Robert has raised a First Amendment argument for the first time on appeal based on the Supreme Court's recent decision in Bartnicki v. Vopper, 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001), which was decided a few months after the district court's decision in this case. Robert asks us for a remand with instructions to the lower court to reconsider its reasoning in the light of Bartnicki. “ ‘[I]f subsequent to the
155 judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied.’ ”Sporty's Farm L.L.C. v. Sportsman's Market, Inc., 202 F.3d 489, 496 (2d. Cir.2000)(quoting United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49 (1801)). We have considered Robert's new argument, find Bartnicki to be inapposite to the circumstances of this case, and decline the invitation to remand. Id. 88. Emphasis Added.
Bartnicki was decided after Judge Mishler’s March 22, 2001 Robert v DOJ decision. Therefore, the Bartnicki First Amendment issue was never presented to Judge Mishler. Robert has placed U.S. Attorney Lynch on Notice that his putative First Amendment right of access to the Courts argument will be based on the elements of this “Bivens” tort as explained in Christopher v. Harbury, 121 S. Ct. 2171 (2001). The appellant will seek to carry his heavy burden of proof through his requests for E.O. 13,256 § 1.5 declassification and § 1.7 misclassification decisions. If the classified documents are released, then he will have the necessary facts to overcome his Ashcroft v Iqbal, 129 S. Ct. 1937 (2009), “plausibility” pleading burden given the “implausibility” of his allegation that his 1985-2010 First Amendment right of access was violated by DOJ attorneys seeking to cover up federal law violations. § AAA. . Robert has informed U.S. Attorney Lynch that on August 18, 2010, he will serve this White Paper on U.S. Attorney Lynch’s 2010 supervising attorneys: EOUSA Director Jarrett, AAG of the Civil Division West, Associate AG Perrelli, and Acting DAG Acting DAG Grindler. He will respectfully request that they fulfill their own K & A duties to review U.S. Attorney Lynch’s recommendation to their clients, AG Holder, HHS Secretary Sebelius, and SSA Commissioner Astrue whether to accept the appellant’s Robert VIII v DOJ, HHS, and SSA offer of a quiet settlement. They can provide their own recommendations to AG Holder whether he should order SSA Commissioner Astrue to make true his January 24, 2007 Senate Finance Committee testimony and end the “rigging” of the August, 2010 SSA computer because this is a Bowen v City of New York clandestine policy as applied to Ford class members. §§ B, C, P. Q.
Upon information and belief, after performing their own K & A duties, all of U.S. Attorney Lynch’s supervising attorneys will recommend that AG Holder accept the offer of a quiet settlement whereby SSA Commissioner Astrue makes true his Senate testimony. They all know the integrity of AG Holder, who began his DOJ career as a 1976-1988 Public Integrity Section attorney. They know that he possesses the Chilicky “normal sensibilities” of human beings whereby he will end the use of illegal SSI standards within the months of 2010. §§ C, Q.
The July 27, 2010 de novo FOIA requests will be decided by AG Holder’s FOIA Officers applying AG Holder’s March 19, 2009 FOIA Guidelines with its presumption of disclosure. They have Notice that the FOIA requested documents are being sought to provide AG Holder with answers to the Jackson question and the Gordon riddle in order that AG Holder will end in 2010 the DOJ-HHS nonacquiescence policy that SSA Commissioner Astrue informed the Senate Finance Committee had ended prior to 1989. Hence, the importance of AUSA Mahoney, the DOJ’s 1998-2010 lead counsel in Ford, providing an accurate heads up memo for U. S. Attorney Lynch given the litigation decisions made in Robert v DOJ. §§ E-H.
156 X. U.S. Attorney Lynch’s K & A duty to read for accuracy the Robert II v HHS signed pleadings to determine whether the “Barrett nonacquiescence policy” had been implemented whereby material facts were withheld from Judge Irizarry and the Second Circuit re the “CMS Jackson” documents that revealed violations of federal laws and attorneys’ violation of NYS Judiciary Law § 487 deception of Judges and parties standard
The appellant placed U.S. Attorney Lynch on Notice of her K & A duty to read for accuracy the Robert II v HHS, 217 Fed. Appx. 50 (2d Cir. 2007), signed pleadings to determine whether the “Barrett nonacquiescence policy” was implemented whereby material facts were withheld from Judge Irizarry and the Second Circuit re the “CMS Jackson” documents that revealed violations of federal laws and attorneys’ violation of NYS Judiciary Law § 487 deception of Judges and parties standard. These are important documents in 2010 because they detail how the Navarro v. Sullivan, 751 F. Supp. 349 (E.D. N.Y. 1990) and Arkansas Department of Human Services v Ahlborn, 125 S. Ct. 1742 (2006), nonacquiescence policies and violations of federal regulations were implemented, and then covered up by government attorney who in 2010 have an April 1, 2009 NYS Professional Model Rules 3.3 duty to cure the prior misrepresentation of facts and law made to Judges and tribunals. §§ D-H, EE, AAA.
HHS Secretary Sebelius should know that this 2010 uncured lawlessness of the HHS nonacquiescence policies tracks back to the 1982 “Jackson nonacquiescence policy” of HHS General Counsel del Real, the 1986 “Barrett nonacquiescence policy” of AAG of the OLC Cooper that USG attorneys have a license to withhold material facts from Article III Judges in order o protect national security secrets, and the 2004 “whistleblower” memo of AAG of the OLC Goldsmith. The HHS attorneys who implemented nonacquiescence policies contrary to the June 22, 1989 Senate testimony of HHS General Counsel Nominee Astrue, knew there were no consequences to not acquiescing to an Article III decision as long as the attorney had a good faith belief the nonacquiescence policy was necessary to protect the national security. §§ D, O.
The fact that there was no Article III check and balance to HHS “nonacquiescence” policies being implemented pursuant to the Unitary Executive theory to protect the national security, was highlighted in Judge Stanley Sporkin’s August 1, 1988 unappealed Duggan v. Bowen, 688 F. Supp. 1687 (D.C.D.C. 1988), decision. Judge Sporkin had been the 1981-1985 CIA General Counsel who honorably resigned. He knew there was a Constitutional breach because after the July 25, 1985 House Judiciary Subcommittee testimony of Acting SSA Commissioner Mc Steen, SSA Chief Counsel Gonya, and DAAG Kuhl that the HHS-SSA-DOJ nonacquiescence policy had ended, AAG of the Civil Divison Bolton implemented the “silent nonacquiescence policy” as explained in his May 6, 1988 letter to ACUS. §§ R, S, U, Y, Z, AA.
In Duggan, Judge Sporkin admonished HHS Secretary Bowen for his Medicare nonacquiescence policy and AG Meese for his defense of the HHS Secretary Bowen’s nonacquiescence policy whereby the HHS “nonacquiescence” policy never ended:
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. at 1701-1702. Emphasis Added.
157 The HHS nonacquiescence policy metastasized because of the “success” of the “Jackson nonacquiescence policy” of HHS General Counsel del Real, the covered agent. Government attorneys knew that they always had “Barrett nonacquiescence policy” absolute immunity as long as they had a good faith reason to generate HHS funds to protect the national security. “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). §§ D, K, Z.
As per the de novo July 27, 2010 FOIA request for the HHS “CMS Jackson” documents, on March 30, 2004 the HHS FOIA Director Lee Jackson informed Robert that a Freedom of Information Group (FIG) was reviewing backlogged FOIA requests and inquired whether the FOIA requester intended that his backlogged FOIA request be processed during the pendency of Robert II v HHS. The plaintiff sought the release of documents that revealed the federal “pro rata share” Medicaid lien standard that was different from the NYS “priority” Medicaid lien standard:
The purpose of this letter is to ascertain if you are still interested in receiving a response to your appeal. I regret that “unusual circumstances” have necessitated an interruption in processing appeals out of this office and I apologize for the length of time it has taken to handle your appeal.
The plaintiff directed CMS Director Jackson to complete the FOIA processing of the documents. Those documents were never processed. The honorable “whistleblower” CMS Director Jackson resigned. The “CMS Jackson” documents reveal that the delay in processing the FOIA request affected Robert II v HHS in which the plaintiff alleged that the documents revealed that HHS Chief Regional Counsel Blum knew that AG Spitzer’s Counsel Nocenti was violating HHS regulations and that Chief Blum ratified his violations of HHS regulations.§ EE.
These are important documents because they reveal how HHS Chief Regional Counsel Blum, who had supervised the “Fraud Against the Government” investigation of Robert seeking his incarceration and disbarment, was working in concert with AG Spitzer’s Counsel Nocenti. He had been a 1986-1990 EDNY AUSA who implemented the nonacquiescence policy of EDNY Chief Begleiter and his command and control officers AAG of the Civil Divisions Willard and Bolton. After reading the HHS “CMS Jackson” documents, U.S. Attorney Lynch will know that there is a Ford “Navarro subclass members” whose due process rights were violated and never cured. Then U.S. Attorney Lynch will have a NYS Professional Model Rule 3.3 duty to cure the misrepresentations of fact and law made in Robert II v HHS. §§ E, F, EE.
After reading the “CMS Jackson” documents, HHS Chief FOIA Officer Acting Assistant Secretary for Public Affairs Bill Hall and Acting HHS General Counsel David Cade will know whether former-HHS Chief Regional Counsel Blum had ratified AG General Counsel Nocenti’s implementation of the 1991 Navarro and 2006 Ahlborn “nonacquiescence” policies in violation of federal regulations. This is a key mens rea fact. They will learn that EDNY AUSA Nocenti knew that HHS Chief Blum knew that the July 25, 1985 House Judiciary Subcommittee testimony that the “nonacquiescence” policy had ended was false. Upon reading the HHS Azzarelli case file notes and e-mail, they will learn who ordered Chief Blum to implement the “Barrett nonacquiescence policy” and withhold material facts from Justice Leis. §§ D, AAA.
158 As to HHS Chief Regional Counsel Blum’s ratification of AG Spitzer’s Counsel Nocenti’s Navarro nonacquiescence policy, U.S. Attorney Lynch will learn that HHS Regional Counsel Blum knew that AG Counsel Nocenti knew that the NYS AG’s Civil Recovery Bureau (CRB) attorneys were violating federal regulations when they implemented the “Navarro nonacquiescence policy” and seized resources of NYS disabled persons that Congress and the NYS Legislature intended to be transferred into Supplemental Needs Trusts (SNTs). U.S. Attorney Lynch will learn that Chief Blum knew that AG Counsel Nocenti determined that Judge Nickerson had “incorrectly” decided Navarro as to application of the resource regulation 20 C.F.R. § 416.1201. U.S. Attorney Lynch will learn that Chief Blum knew of Robert’s allegation that AG Counsel Nocenti knew where the CRB attorneys diverted the federal government’s 50 % share of “incorrectly” provided Medicaid that was not reimbursed to the HHS Secretaries. Chief Blum knew a law enforcement officer could “follow the money” and learn where the NYS CRB attorneys diverted the 50 % federal share of recovered HHS funds.
Chief Blum’s knowledge that NYS was not reimbursing the HHS Secretary the federal government’s 50 % share of “incorrectly” provided Medicaid, is an important 2010 fact because it illustrates the knowledge of government attorneys that there would be zero accountability for any funds generated by the implementation of a nonacquiecence policy. HHS Chief Blum knew not only that she had Barrett immunity, but that there would be no IG audits. U.S. Attorney Lynch will learn that fact when an OMB auditor “follows the money” that is the 50% federal share of the “Navarro nonacquiescence policy” funds. Because U.S. Attorney Lynch possesses the Chilicky “normal sensibilities” of human beings, after she learns that the Ford “Navarro subclass” members due process rights violations were never cured, she will know this is another HHS clandestine policy to trigger a Bowen v City of New York remedy. §§ P, Q, EE.
As to HHS Chief Regional Counsel Blum’s ratification of AG Counsel Nocenti’s Ahlborn nonacquiescence policy, HHS Secretary Sebelius will learn whether HHS Chief Regional Counsel Blum knew that AG Counsel Nocenti knew that the NYS attorneys were falsely informing NYS Judges and federal judges that the federal Medicaid lien standard was a “priority” standard and not a “pro rata share” standard. HHS Secretary Sebelius should know whether HHS Chief Blum knew that AG Nocenti knew that NYS attorneys had misrepresented the lien law in Cricchio v. Pennisi, 660 N.Y.S. 2d 679 (Ct. App. 1997), Calvanese v. Calvanese- Callahan, 93 N.Y. 2d 111, 688 N.Y.S. 2d 479 (Ct. App. 1999), cert. den. sub. nom.Callahan v. Suffolk County DSS, 120 S. Ct. 323 (1999), and Sullivan v. County of Suffolk, 1 F. Supp. 2d 186 (E.D.N.Y. 1998), 174 F. 3d 282 (2d Cir. 1999), cert. den. 120 S. Ct. 372 (1999). §§ E-H.
The “CMS Jackson” documents take on a 2010 importance because 2002-2007 EDNY U.S. Attorney Mauskopf had been the 1995-2002 NYS Inspector General when NYS attorneys were violating federal regulations by their implementation of the “Navarro nonacquiecence policy” and use of the Medicaid “priority” lien standard. This is a sensitive issue because the “CMS Jackson” documents reveal whether EDNY U.S. Attorney Mauskopf had implemented the “Barrett nonacquiescence policy” in Robert II v HHS and withheld material facts from Judge Irizarry and the Second Circuit. The Robert II v HHS case file notes and e-mails reveal whether there was a concerted Robert II v HHS litigation strategy of Chief Blum to prevent the timely release of the “CMS Jackson” documents that revealed whether HHS Chief Blum, AG Counsel Nocenti, and former-NYS IG Mauskopf knew of the regulation violations. §§ D, E, F, G, H.
159 If so, then this is an important Ahlborn fact when U.S. Attorney Lynch learns the names of the government attorneys who had communications with the NYS Grievance Committee seeking the disbarment of Robert. U.S. Attorney Lynch (or any law enforcement officer), can learn whether AG Counsel Nocenti is on the list of the universe of government attorneys who had direct communications with the Grievance Committee seeking Robert’s disbarment, by subpoenaing the Grievance Committee records. Upon information and belief, U.S. Attorney Lynch will learn that the command and control officers of the government attorneys who have communicated with the Grievance Committee, reported to the counterintelligence “plumber” unit that was tasked with eliminating Robert as an attorney to protect DIA-CIA-FBI off-OMB Budget funding sources. If provided a nondisclosure agreement waiver, former-AG Counsel Nocenti will provide the names of his command and control officers. §§ K, L, M, O, AAA.
The appellant has placed U.S. Attorney Lynch on Notice of the Second Circuit’s March 12, 2010 Alexander v Cahill, 598 F. 3d 79 (2d Cir. 2010), decision. The Court held there is federal court jurisdiction over the NYS Grievance Committee when the First Amendment is implicated. Therefore, if the Robert VIII v DOJ, HHS, and SSA appeal is reinstated, the appellant will be citing Alexander when making his First Amendment argument. §§ VV, AAA.
The government attorneys nondisclosure agreement defense will be at issue when Robert files E.O. 13,256 requests for § 1.5 declassification and § 1.7 misclassification decisions. If the 25 year automatic declassification standard is applied to the 1985 sealed Robert v Holz “Fraud Against the Government” documents, then those documents should be released in 2011 (1985 +25=2010). If the declassified documents are released and confirm that HHS General Counsel del Real was a covered agent and the HHS nonacquiecence policy implemented by the government attorneys was a sources and methods of the DIA-CIA-FBI counterintelligence “plumber” unit, then the “Barrett nonacquiescence policy” absolute immunity and the nondisclosure agreements defenses will no longer be available to the government attorneys who have been hiding behind these defenses for the past twenty five years. §§ B, D, F, L, M, AAA.
U.S. Attorney Lynch was a 2009 Member of the New York State Commission on Public Integrity. She has been served with the allegations of violation of NYS Judiciary Law § 487 by government attorneys deception in Robert II v HHS. This is an important 2010 fact because the misrepresentations of fact and law made by government attorneys to the NYS Grievance Committee remain as uncured Rule 3.3 violations. Robert’s putative 2011 Bivens First Amendment right of access to the Courts will include government attorneys as defendants who breached their Rule 3.3 duty to cure misrepresentations of fact and law. §§ E-H, AAA.
The appellant has placed U.S. Attorney Lynch on Notice of his de novo requests for the release of the 28 U.S.C. §530D nonacquiescence policy documents. These are the documents upon which the 1982 Jackson, 1986 Barrett, 1990 Ruppert, 1990 Navarro, 2000 Christensen, 2006 Ahlborn, and 2007 Ford “nonacquiescence” policies were based. Given the gravity of the appellant’s allegations, U.S. Attorney Lynch has a K & A duty to contact Acting AAG of the OLC Barron and learn whether these are classified or non classified documents. If she learns that there are no 28 U.S.C. §530D documents, classified or unclassified, then she will have a K & A duty to learn who made these nonacquiescence policy decisions and by what authority. Then she will have a K & A duty to remedy the “silent nonacquiescence policy” damages. §§ D, P, Q.
160 The de novo July 27, 2010 FOIA requested “CMS Jackson” documents have 2010 smoking gun importance because of the April 1, 2009 NYS Rules of Professional Conduct Rule 3.3(a)(3) duty to cure misrepresentations of fact and law made to tribunals. U.S. Attorney Lynch was cited to the “CMS Jackson” and “Navarro nonacquiescence policy” documents. After reading the Robert II v HHS case file notes and e-mails, she will know which government attorneys knew there those documents revealed violations of federal regulations. Any law enforcement officer who reads the case file notes and e-mails in Cricchio, Callahan, Sullivan, and Azzarelli will know government attorneys misrepresentated facts and law to the NYS Appellate Division, NYS Court of Appeals, Second Circuit, U.S. Supreme Court, and Suffolk County Justice Leis, which have never been cured pursuant to NYS Rule 3.3 standard. §§ E, F.
The appellant informed U.S. Attorney Lynch that on August 18, 2010 he will place 2007-2010 NYS SG Barbara Underwood on Notice that the NYS government attorneys who made misrepresentations of fact in Cricchio, Callahan, Sullivan, and Azzarelli, have a Rule 3.3 duty to cure their misrepresentations of facts and law as revealed in those cases case file notes and e-mails. Robert will also place SG Underwood on Notice that NYS AG Cuomo, as the NYS law enforcement offer and as a K & A supervising attorney, can “follow the money” recovered by the AG’s CRB attorneys who implemented the “Navarro nonacquiescence policy” and learn where the 1990-2010 NYS attorneys diverted the 50 % of the federal share of the “incorrectly” provided funds not paid to the HHS Secretary. These documents are evidence of the AG’s CRB attorneys NYS Judiciary Law § 487 breach by their deception of both judges and parties. § F.
NYS SG Underwood understands the nonacquiescence policy issue and the legal consequences if the classified Robert FOIA requested documents are declassified pursuant to the appellant’s E.O. 13,256 requests for 1.5 declassification and 1.7 misclassification decisions. She was the 1998-2001 U.S. Principal Deputy Solicitor General, January-June, 2001 Acting Solicitor General, 2001-2003 Chief Assistant EDNY U.S. Attorney, and June, 2003 -2007 Counsel to EDNY U.S. Attorney Mauskopf. Upon information and belief, she knows whether 1998-2007 EDNY U.S. Attorneys had implemented the Barrett nonacquiescence policy not only in Robert II v HHS, but also in Ford v Shalala, Robert v National Archives, Robert v DOJ, Robert III v DOJ, Robert II v CIA and DOJ, Robert VII v DOJ, and Robert VIII v DOJ, HHS, and SSA, including in U.S. Attorney Mauskopf’s 2005 Motion filed with Judge Garaufis in which the USG successfully secured the extant Robert injunction. §§ E-H, V, W, Y, Z, AA-XX, AAA.
Because the Ford due process violations continue in 2010, 1999-2001 and 2010 U.S. Attorney Lynch has a K & A duty to contact U.S. Attorney Mauskopf’s 2003-2007 Counsel Underwood. Upon information and belief, if provided a nondisclosure waiver, NYS SG Underwood, the 2001 Acting U.S. SG, will explain why the decision was made not to include regulation citations in Ford remedy notices. With a nondisclosure waiver, NYS SG Underwood can provide legal guidance to U.S. Attorney Lynch as to how compliance with ethics Rule 3.3 will result in a 2010 end to the “Barrett nonacquiescence policy” and the “Ford nonacquiescence policy” by the application of the Bowen v City of New York remedy because AG Holder possess the Chilicky “normal sensibilities” of human beings. If asked, she can provide the names of the USG attorneys who made the “silent nonacquiescence policy” litigation decisions during her Constitutional watch including the 2004-2007 “Barrett nonacquiescence policy” litigation decisions to withhold material facts in Robert VII v DOJ and Robert II v HHS. § D-H, P, Q.
161 As per the July 27, 2010 HHS FOIA request for the “annual NYS reimbursement of “incorrectly” provided Medicaid funds”, Robert will be citing the HHS FOIA Officer’s response to AG Cuomo’s Counselor and Chief of Staff Steven M. Cohen who is also AG Cuomo’s Freedom of Information Law (FOIL) appeals final decision maker. Robert will request that Counselor and Chief of Staff Steven M. Cohen compare those documents to the NYS FOIL requested “Navarro nonacquiescence policy” and “Ahlborn nonacquiescence policy” documents. Then Robert will request that Counselor Cohen enter into a stipulation to submit to NYS Justice Skelos to vacate the extant Robert v Litsky injunction that prevents Robert from filing a FOIL request for “Navarro nonacquiescence policy” documents that reveal the mens rea of the government attorneys who withheld material facts from Justice Skelos and the Appellate Division, Second Department. Those documents reveal the mens rea of the government attorneys who did not inform the Grievance Committee of the Navarro nonacquiescence policy. §§ E, F.
Counselor and Chief of Staff Cohen was a former-law clerk for Judge Stanley Sporkin, the 1981-1985 CIA General Counsel. He understands the significance of Judge Sporkin’s August 1, 1988 unappealed Duggan v. Bowen, 688 F. Supp. 1687 (D.C.D.C. 1988), decision which admonished HHS Secretary Bowen's Medicare nonacquiescence policy and AG Meese's defense of the HHS Secretary Bowen’s Medicare nonacquiescence policy. He understands that Judge Sporkin’s nonacquiescence policy admonishment could apply to his own decisions. § E.
Counselor and Chief of Staff Cohen was also a 1991-1998 SDNY AUSA. Therefore, he knows the legacy of the honorable and courageous decision of 1985 SDNY U.S. Attorney Giuliani, the 1981-1983 Associate AG, who refused to defend the “nonacquiescence” policy of HHS General Counsel del Real and AG Meese. He knows why the SDNY U.S. Attorneys implemented the “Thornburgh-Giuliani” acquiescence policy as explained in the January 9, 1989 letter from OPR Director Shaheen to Robert. http://www.snowflake5391.net/1-9-89Shaheen.pdf.
Counselor and Chief of Staff Cohen was also a former-clerk of Second Circuit Judge Altimari. He knew the impeccable integrity of Judge Altimari. He also knows the Second Circuit rules re the duty of attorneys not to withhold material facts from the Second Circuit. Counselor and Chief of Staff Cohen is also an adjunct professor at Columbia Law School. § G.
The appellant also informed U.S. Attorney Lynch that on August 18, 2010 he will be placing OMB General Counsel and Senior Policy Advisor Preeta Bansal on Notice of her NYS Rule 3.3 duty to cure misrepresentations of fact and law made by government attorneys implementing the 1991 Navarro and 2006 Ahlborn “nonacquiescence” policies. OMB General Counsel Bonsal was the 1999-2002 NYS Solicitor General when NYS attorneys made their misrepresentation of facts and law in Azzarelli, Callahan, and Sullivan in their defense of the “Navarro nonacquiescence policy” and the NYS “priority” Medicaid lien standard that were approved by AG Spitzer’s Counsel Nocenti. Upon information and belief, as NYS SG she had a K & A supervising attorney duty to review for accuracy the Callahan and Sullivan Briefs submitted to the NYS Court of Appeals, the Second Circuit, and the U.S. Supreme Court on behalf of NYS Commissioner of Health (DOH). The 1999-2002 NYS SG can consult with 2007-2010 NYS SG Underwood and sort out the “follow the money” Navarro and Ahlborn “nonacquiescence” issues as to the federal government’s 50 % share of funds that have not been reimbursed. Then she can decide whether she has her own NYS Rule 3.3 reporting duty. § E.
162 The appellant also informed U.S. Attorney Lynch that on August 18, 2010 the appellant will inform OMB General Counsel and Senior Policy Advisor Bansal that OMB FOIA Officer Hardy had been instructed not to docket the appellant’s FOIA request for the 1982-2008 and the 2009 “OMB Jackson” documents. The appellant will respectfully suggest that OMB General Counsel and Senior Policy Advisor Bansal has a duty to instruct OMB Associate Director for Education, Income Maintenance and Labor Robert Gordon to “follow the money” not only as revealed in the “OMB Jackson” documents, but also “follow the money” that was not reimbursed by the NYS DOH Commissioner to the HHS Secretaries as revealed by reading the “CMS Jackson” and “Navarro nonacquiescence policy” documents. §§ K, M, Z, EE.
The de novo FOIA requested “CMS Jackson”, “Navarro nonacquiescence policy”, and “Jackson nonacquiescence policy” documents are connect-the-dots documents because an OMB auditor (or any law enforcement agency auditor) can learn where funds appropriated by Congress were distributed when the nonacquiescence policy litigation decisions were made. This is a “follow the money” paper trail that leads through OMB and to the rogue Unitary Executive attorneys who made the nonacquiescence decisions as to cases not reported to Congress as 28 U.S.C. § 530D cases. However, if these are classified nonacquiescence policy decisions pursuant to President Bush’s November 2, 2002 Signing Statement as “exception” cases because the national security is at risk, then AG Holder should know this fact. §§ D, K, P.
The “CMS Jackson” and “Navarro nonacquiescence policy” documents are also important because U.S. Attorney Lynch’s Robert VIII v DOJ, HHS, and SSA client, HHS Secretary Sebelius, was the Kansas Governor from 2003-2009 after eight years of being the Kansas Insurance Commissioner. From 1977-1978 she was the executive director and chief lobbyist for the Kansas Trial Lawyers Association (now Kansas Association for Justice) from 1977–1986. Therefore, HHS Secretary Sebelius will understand the “Ahlborn nonacquiescence policy” whereby HHS Chief Blum ratified the decision of AG Counsel Nocenti that NYS Medicaid agencies were to use the “priority” standard, rather than the federal “pro rata share” standard. She will also understand the duty of the 2011 Governor of NYS to reimburse the HHS Secretary the 50 % federal share of the recovered “incorrectly” provided Medicaid that resulted from the “Navarro nonacquiescence policy” of the 1990-2010 NYS AG’s CRB attorneys. § EE.
HHS Secretary Sebelius will also be able to determine whether the “CMS Jackson” documents reveal that the NYS Medicaid plan violated the federal regulations re the duty to pursue the defendant tortfeasors to recover the Medicaid lien rather than from the plaintiff. This was the underlying issue in Cricchio, Callahan, and Sullivan, and Azzarelli. Former-Chief Blum knows that HHS Secretary Sebelius can review the annual NYS Medicaid Plan and determine why the 1995 sanctions applied to the California State Medicaid Plan and the 1996 sanctions to the Washington State Medicaid Plan, were not applied to the NYS Medicaid Plan and who made that decision. HHS Secretary Sebelius can determine whether HHS Chief Regional Counsel Blum knew of the violations of the NYS Medicaid Plan and knew that government attorneys intentionally withheld from the Judges in Cricchio, Callahan, Sullivan, Azzarelli, and Robert II v HHS, the fact that the federal Medicaid lien standard was the “pro rata share” lien standard. HHS Secretary Sebilius can also determine by reading the HHS “Fraud Against the Government” investigation of Robert documents whether HHS General Counsel del Real was a covered agent and the name of his “command and control” officer. §§ K, L, M, N, O, P, EE.
163 When HHS Secretary Sebelius considers the appellant’s Robert VIII v DOJ, HHS, and SSA offer of a quiet settlement, she should also know the concerted litigation decisions made by HHS Chief Regional Counsel Blum and AG Spitzer’s Counsel Nocenti in Cricchio, Azzarelli, Callahan, and Sullivan. She should know that Chief Blum appeared in Azzarelli and withheld from Justice Leis the material fact that the DOH Commissioner was implementing the “Navarro nonacquiescence policy” and using the illegal “priority” lien standard. These are key facts if HHS Chief Blum knew AG Counsel Nocenti knew that the five millions dollars that was posted in Robert’s Azzarelli escrow account at issue in the proceeding to disbar Robert, never existed. If so, then Acting HHS General Counsel Childress should know the name of Chief Blum’s command and control officer in Azzarelli and determine whether her command and control officer knew the five million dollars posted in Robert’s Azzarelli account never existed. § AAA.
These are 2010 smoking gun facts because the government attorneys who defended the “Navarro nonacquiescence policy” and “Ahlborn nonacquiescence policies have an April 1, 2009 NYS Rules of Professional Conduct Rule 3.3(a)(3) duty to cure misrepresentations of fact and law made to the state and federal court judges and to the Grievance Committee. Law enforcement officers U.S. Attorney Lynch and AG Cuomo will learn of these misrepresentations of fact and law when they apply the NYS Judiciary Law § 487 deception of Judges and parties standard to the facts provided to Judge Irizarry in Robert II v HHS and to Justice Leis in Azzarelli after reading the Robert II v HHS and Azzarelli case file notes and e-mails of government attorneys with their “clients” and with HHS Chief Blum and AG Counsel Nocenti.
Then when U.S. Attorney Lynch and AG Cuomo read the signed pleadings 1) filed with Judge Garaufis in Robert VIII v DOJ, HHS, and SSA seeking the extant Robert injunction preventing his filing of a FOIA complaint without a pre-clearance order and 2) filed with Justice Skelos in Robert v Litsky seeking the extant injunction that prevents Robert from filing a FOIL request for “Navarro nonacquiescence policy” documents, these law enforcement officers will know that Robert has a viable claim that his First Amendment right of access the Courts has been breached. They will know whether Robert VIII v DOJ, HHS, and SSA and Robert v Litsky case file notes and e-mails, reveal that Chief Blum, AG Counsel Nocenti, NYS IG Mauskopf, U.S. Attorney Mauskopf, and AUSA Mahoney had made litigation decisions in concert with their command and control officers to cover up the illegal diversion of HHS-SSA nonacquiescence funds for purposes not intended by Congress, and whether they breached their NYS Rule 3.3 duties to cure the misrepresentation of fact and law made to Judges and tribunals. §§ D-H, AAA.
Given the gravity of the allegations, on August 18, 2010 Robert will suggest that Acting HHS General Counsel Childress provide a heads up memo to HHS Secretary Sebelius when he presents the Robert v DOJ, HHS, and SSA offer of a quiet settlement to his client. After he reads the de novo FOIA requested “CMS Jackson” documents along with the Robert II v HHS case file notes and e-mails, he can advise HHS Secretary Sebelius whether HHS Chief Regional Counsel Blum was making litigation decisions in concert with AG Spitzer’s Counsel Nocenti in order to cover up violations of federal regulations and the NYS Medicaid Plan.
Hence, the importance of U.S. Attorney Lynch reading the de novo FOIA requested “CMS Jackson” documents along with the Robert II v HHS case file notes and e-mails. Then U.S. Attorney Lynch will understand why and how nonacquiescence policies have metastasized.
164 Y. U.S. Attorney Lynch’s K & A duty to read the Robert III v DOJ FBI “Recarey extradition” documents withheld pursuant to the Glomar Response defense because they are “connect-the-dots documents to the 1985 “FBI Revell” log, 1986 “FBI Abshire”, 1987 FBI “Perot”, 1987 FBI “IMC Investigation Final Report”, 1988 “FBI 62-0 file”, and 1989 “FBI Agent Allison” documents and reveal what and when FBI Director Judge Webster knew about IMC prior to becoming CIA Director Judge Webster on May 26, 1987
The appellant has placed U.S. Attorney Lynch on Notice of her K & A duty to read the July 27, 2010 de novo FBI FOIA requested Robert III v DOJ, cv 01-4198 (Gershon, J), “Recarey extradition” documents that were withheld pursuant to the “Glomar Response” defense. These are connect-the-dots FBI documents to the September 3, 1985 “FBI Revell” log document, the 1986 “FBI Abshire” documents, the 1987 FBI “Perot” documents, the 1987 FBI “IMC Investigation Final Report” documents, the 1988 FBI “62-0 file” documents, and the 1989 “FBI Agent Allison” documents. U.S. Attorney Lynch will learn what and when FBI Director Judge Webster knew about IMC prior to becoming CIA Director on May 26, 1987. § AA.
On May 26, 1987 President Reagan’s CIA Director Nominee FBI Director Judge Webster was confirmed. He succeeded CIA Director Casey and had access to the CIA archives and documents that contained information that 1981-1987 CIA Director Casey had not information-shared with 1978-1987 FBI Director Judge Webster. President Reagan’s first choice to succeed CIA Director Casey had been CIA Deputy Director Gates. He withdrew his nomination on March 3, 1987 after the February 28, 1987 release of the Tower Commission Report. Upon the recommendation of VP George H.W. Bush, the 1976 CIA Director, President Reagan nominated FBI Director Judge Webster. https://www.cia.gov/library/center-for-the- study-of-intelligence/csi-publications/books-and-monographs/directors-of-central-intelligence- as-leaders-of-the-u-s-intelligence-community/chapter_10.htm
The Robert III v DOJ “Recarey extradition” documents are the FOIA requested documents relied upon by FBI Director Judge Freeh when he decided not to extradite the fugitive IMC President Miguel Recarey from Spain. On June 21, 2010, the plaintiff filed the Robert III v DOJ complaint http://www.snowflake5391.net/rob3vdoj.pdf. U.S.Attorney Mauskopf filed an ex parte FBI Declaration with Judge Gershon that explained the need to protect sources and methods. Judge Gershon dismissed the complaint. The appellant filed the July 27, 2010 de novo request for the “FBI Recarey” extradition documents by application of the AG Holder’s March 19, 2009 FOIA Guidelines and E.O. 13,526 § 1.5 declassification and §1.7 misclassification standards with its internal Article II appeal process. §§ L, M.
U.S. Attorney Lynch will learn from reading the FBI ex parte Declaration why in 2002 FBI Director Mueller used the “Glomar Response” defense. She will learn whether FBI Director Judge Freeh had determined in 1995 that if extradited, the fugitive IMC President Recarey would use a “gray mail” defense by seeking the release of DIA-CIA-FBI documents that reveal he had been a covered agent participating in a DIA-CIA-FBI “black operation” at IMC. She will learn whether FBI Director Judge Webster knew in 1985 that IMC President Recarey and HHS General Counsel-IMC Chief of Staff del Real were covered agents at IMC. She will learn whether FBI Director Judge Sessions (1987-1993), 1993 Acting FBI Director Clarke, and 1993- 2001 FBI Director Judge Freeh knew that Mr. del Real had been a 1981-1987 covered agent.
165 The September 3, 1985 “FBI Revell” log document is the unredacted classified “North Notebook” documents being sought in Robert II v CIA and DOJ, cv-02-6788 (Seybert, J). This log entry has a “FBI Buck Revell” notation and has been withheld pursuant to the FBI’s use of FOIA Exemptions 1 and 7(c). http://www.snowflake5391.net/9-3-85North-FBI.pdf. After U.S. Attorney Lynch reads that unredacted log entry, along with the “Recarey extradition” and “FBI Abshire” documents, she will know whether FBI Assistant Director of Investigations Oliver Revell knew on September 3, 1985 of the “black operation” at IMC and whether he informed FBI Director Judge Webster of the IMC “black operation” funding source. § L, M, AA, BB.
In his Memoir, A G-Man’s Journal, Revell and Williams, Pocket Books, 1998, former- FBI Assistant Director of Investigations Oliver “Buck’ Revell recounted how in June, 1985, FBI Director General Webster appointed him Executive Assistant Director for Intelligence and assigned him as the FBI liaison to Vice President Bush’s Task Force on Terrorism:
In response to these terrorist campaigns, President Reagan established the Vice President’s Task Force on Terrorism in 1985, which was chaired by Vice President Bush. Attorney General Ed Meese and Director Webster were appointed to it, as were Secretary of State George Schultz, Secretary of Defense Caspar Weinberger, CIA Director Bill Casey, and several other cabinet officers. Just below the Task Force members, a group of senior career officials were formed to develop proposals, coordinate interagency efforts, and review working group materials. This group was designated the Senior Review Group (SRG), to which, as the newly appointed Executive Assistant Director for Investigations, I was appointed. Members came together as a team and substantially moved the Task Force forward to make specific and meaningful recommendations to the President. Id. 246. Emphasis Added.
The SRG Group met weekly with Lt. Col. North of the National Security Council. He was the coordinator of VP’s Task Force on Terrorism operations:
From the SRG of senior officials of key departments, subgroup was formed and permanently placed in the National Security Council apparatus. This was the Operational Sub-Group (OSG). Together were an arm of the National Security Council that reported directly to the National Security Advisor and cabinet officers of the represented agencies. We met weekly at the White House for overall coordination of government strategy and operations against terrorism; Lieutenant Colonel Oliver North was the NSC coordinator.” Id. 248. Emphasis Added.
FBI Director Judge Webster tasked FBI Assistant Director of Investigations Revell to improve FBI and CIA coordination including with CIA Deputy Director Gates:
Now, in 1985, there was a renewed impetus to the process. I met with John Mc Mann, Deputy Director of the CIA, Clair George, Deputy Director for Operations, and Bob Gates, Deputy Director for intelligence,
166 and together we had a number of useful discussions. We talked about everything from philosophy of intelligence and to actual operational issues. Id. 250. Emphasis Added.
The 1985 information-sharing between the FBI and the CIA has historical significance because of AG Meese’s decision on November 24, 1986 not to request that AAG of the Criminal Division William Weld, the logical choice, to conduct the criminal investigation with AG Meese of Lt. General North’s Office. Rather, AG Meese chose AAG of the OLC Charles Cooper to conduct the search of Lt. Col North’s Office. The appellants is seeking the release of a “mosaic” of documents to prove to AG Holder (a 1985 DOJ Office of Public Integrity attorney) that AG Meese did not want AAG of the Criminal Division Weld to learn that Lt. North was conducting a domestic “black operation” at IMC in violation of federal laws. AG Meese knew this would be an impeachable offense if President Reagan, as the Commander in Chief, knew the laws were being violated and did not report to the “Gang of Eight” pursuant to §413 (a) National Security Act that covert actions were necessary to protect the national security. §§ L, M, N, O.
As reported by historian Theodore Draper inA Very Thin Line: The Iran Contra Affairss, AAG of the Criminal Division Weld cautioned AG Meese:
Monday, November, 24, was a busy day for Meese. At 7:20 a. m., he held a meeting with his aides and directed Assistant Attorney General Cooper to see whether any criminal or other statutes might apply to the case. At 9:55 a. m., Meese called William Weld, assistant attorney general, Criminal Division, to say that he had purposely decided not to involve Weld’s division. Weld says that he cautioned Meese that “if you try to carry too much water here that some may spill on you.” Id. 524. Emphasis Added. On November 24, 1986, AAG of the Criminal Division Weld was supervising the maturing “Fraud Against the Government” investigation of IMC that was being conducted by a joint FBI-DOJ-HHS task force. Upon information and belief, HHS IG Richard Kusserow was the highest ranking HHS official on the joint FBI-DOJ-HHS task force investigating IMC. § II.
On December 1, 1986, President Reagan established the “Tower Commission” and appointed Senator John Tower, former Secretary of State Edmund Muskie, and former-National Security Advisor Brent Scowcroft to investigate the Iran-Contra Affair and provide a Report to the President by February 28, 1987. President Reagan also appointed former-Ambassador David Abshire, a Member of President’s Foreign Intelligence Advisory Board (PFIAB), who was not an attorney, as his Special Counselor to represent the President before the Tower Commission.
The 1986 “FBI Abshire” documents are the 3000 documents that FBI Director Judge Webster FBI agents culled for a December 1986 “task force of departmental general counselors” that were presented to President Reagan’s Special Counselor Abshire for his review prior to presenting documents to the Tower Commission. The December 1986 “task force of departmental general counselors” were tasked to protect the sources and methods of the intelligence community that could be compromised. This included protecting domestic “black operations” for which President Reagan had a National Security Act § 413 reporting duty. § K.
167 Special Counselor Abshire’s attorney, Judge Charles Brower, reviewed the 3000 documents provided by FBI Director Judge Webster’s December, 1986 task force. He then presented selected documents to the Tower Commission for their review in preparation of filing the Tower Commission with President Reagan by February 28, 1987.
In his Memoir, Saving the Reagan Presidency: Trust is the Coin of the Realm, Abshire, Texas A & M University Press 2005, Ambassador Abshire explained his own limited access to documents provided to the Tower Commission for use in their February 28, 1987 Report:
During this period, Judge Bower’s task force of departmental general counselors continued to review three thousand relevant documents identified by the FBI for investigations. Each of these documents had to be carefully sorted, and the most sensitive had to be retained for safekeeping in the executive branch, where the committee staffs and others were invited to view them. This was one of the initial problems we had with the Congress – safekeeping. The CIA was very slow in replying to requests related to the contra supply operation because they had difficulty evaluating the documents. As for the Walsh team, we had to work out arrangements to have filing cabinets and space at CIA headquarters in Langley, Virgina. This enabled the Walsh attorneys to see what the agency had blacked out as legally irrelevant but sensitive in terms of revealing sources and methods. Similar arrangements were worked out with the Treasury Department since it also wanted to follow North’s money trail. Id. 110-111. Emphasis Added.
The appellant is seeking the release of the “FBI Abshire” documents along with the 1984-1987 “OMB Jackson” documents to prove to AG Holder that the funding source for the “black operation” at IMC were off-OMB Budget “Jackson nonacquiescence policy” funds and not classified OMB Budget funds. This was the result of AAG of the Civil Division Willard knowing that the sworn July 25, 1985 House Judiciary Committee testimony of Acting SSA Commissioner Mc Steen, SSA Chief Counsel Gonya, and DAAG Kuhl that the “nonacquiesence” policy HHS General Counsel del Real had ended and that Jackson was not a “nonacquiescence” policy case, was false. This raises the question of whether AAG of the Civil Division Willard violated his 28 U.S. C. § 535 (b) duty to report this crime to AG Meese. § J.
The “FBI Abshire” documents reveal the existence of the 1985 FBI stovepipe that bypassed FBI Director Judge Webster in order that he not know the July 25, 1985 House Judiciary Subcommittee testimony that the 1985 nonacquiescence policy had ended, was false. The “OMB Jackson” documents reveal where 1985 “Jackson nonacquiescence policy” funds not paid to SSI recipients not living in the State of Indiana, were diverted. When read along with the September 4, 1985 Ruppert case file notes, those documents reveal whether AAG of the Civil Division Willard not only knew that the July 25, 1985 testimony was false, but he knew a 1985 FBI stovepipe bypassed FBI Director Judge Webster in order that he not know that the three USG witnesses had lied to the House Subcommittee because they knew the 1982 “Jackson nonacquiescence” policy had not ended and continued to be implemented in August, 1985. If so, then AAG of the Civil Division Willard knew 1985 false information had been provided to all three Branches of Government: Congress, President Reagan, and Judge Altimari. §§ D-H, S, Z.
168 U.S. Attorney Lynch’s knowledge that AAG of the Civil Division Willard knew a 1985 FBI “stovepipe” bypassed FBI Director Judge Webster as to the false July 25, 1985 House testimony, is important because she will learn that the same FBI stovepipe exists in 2010. The stovepipe bypasses FBI Director Mueller in order that FBI Director Mueller continues not to know that SSA Commissioner Nominee Astrue lied to the Senate Finance Committee on January 24, 2007 that the “nonacquiescence” policy had ended prior to 1989 when he became the HHS General Counsel. U.S. Attorney Lynch will learn that the same FBI stovepipe existed in 1989 when 1986-1992 EDNY U.S. Attorney Maloney did not inform FBI Director Judge Sessions that Associate WH Counsel-HHS General Counsel Nominee Astrue’s June 22, 1989 Senate Finance Committee testimony was false because in 1990 he expanded the “Jackson nonacquiescence policy” to include the Ruppert nonacquiescence policy. §§ J, R-U, Z, JJ, KK.
Because the “FBI Abshire” documents were in existence in December, 1986, they will first be subject to President Obama’s E.O. 13256 § 1.5 mandatory declassification rule. In 2011, they will be subject to the 25 year automatic declassification rule (1986+25=2011). These “FBI Abshire” documents will be a treasure trove for historians and investigative reporters to learn heretofore unknown facts regarding the Iran-Contras Affair and the existence of the FBI stovepipe that was used in 1985, in 1989, and continues to be used in 2010. § N, V, W, GG, HH.
The 1987 FBI “Perot” documents are the FBI’s copy of the February 25, 1987 documents President Reagan requested that FBI Director Judge Webster review to determine the validity of the allegations made to President Reagan by Electronic Data Systems (EDS) CEO H. Ross Perot re “chicanery and corruption” at DOD and CIA. EDS had the contract to process HHS Medicare-Medicaid payments to the providers. This February 24, 1987 allegation was made prior to the February 28, 1987 release of the Tower Commissioner Report.
As reported by History Professor Douglas Brinkley in The Reagan Diaries, Brinkley, HarperCollins, President Reagan wrote a log entry in his Diary of February 24, 1987 after a White House farewell party for Pat Buchanan:
Then upstairs for an hour with Ross Perot. He has laid on me a story of chicanery & corruption in our executive branch including the mil. & CIA. It’s a shocker & and has me asking where do I start. Of course all he told me was based on circumstantial evidence. Id. 477. Emphasis Added.
On February 25, 1987, President Reagan presented the Ross Perot “chicanery and corruption” at DOD and CIA documents to AG Meese and FBI Director Judge Webster:
Well this A.M. I had talked to Ed M. Im going to turn this over to him & and our Dir. of the FBI. First however I’m going to give it all a good going over –the material Ross left with me. Id. 478. Emphasis Added.
On February 28, 1987, the Tower Commission Report was publicly released. Upon information and belief, none the Tower Commission Members or there staff were informed of the “chicanery & corruption” allegations or that President Reagan had had custody of the “Perot” documents which the President delivered to AG Meese and FBI Director Judge Webster.
169 Upon information and belief, in March, 1987 FBI Director Judge Webster provided the “Perot” documents to AAG of the Criminal Division Weld for his review. Upon information AAG of the Criminal Division Weld read the “Perot” documents. Upon information and belief, he determined that these documents contained valuable evidence for the 1985-1987 FBI-DOJ- HHS joint task force investigating “Fraud Against the Government” at IMC. Upon information and belief, in April, 1987 AG Meese instructed FBI Director Webster to instruct AAG Weld to terminate the IMC “Fraud Against the Government” investigation because it placed at risk of exposure the DIA-CIA sources and methods. Upon information and belief, FBI Director Judge Webster retained the February 25, 1987 “Perot” documents for the FBI Archives. § BB.
On May 26, 1987, FBI Director Webster was confirmed as the CIA Director. Upon information and belief, CIA Director Judge Webster had access to the CIA archives that corroborated the “chicanery & corruption” at the CIA whereby CIA Director Casey had conducted a “black operation” at IMC in violation of the Boland Amendment, without the knowledge of President Reagan, and paid for with unaudited off-OMB Budget HHS funds. § Z.
On May 26, 1987, David Addington was the Counsel to the House Committees on Intelligence and Foreign Affairs, Peter Keisler was an Associate WH Counsel, SSA Commissioner Astrue was the Counselor to the SSA Commissioner, DOD Secretary Gates was the CIA Deputy Director, and CIA Director Panetta was a Congressman on the House Budget Committee. Hence, the historical significance of the 1987 “Perot” documents in 2010.
On November 18, 1987, Senate Chairman Inouye and House Chairman Hamilton released the Report of the Congressional Committees Investigating the Iran-Contra Affair. The Minority View authored by Congressman Dick Cheney. Chapter 4: Constitutional Principles in Court explains the Unitary Executive theory as to the President’s Article II authority not to enforce “unconstitutional” laws enacted by the Congress that encroached upon the President’s Article II duty to protect the national security. One of the Minority staff members who drafted the Minority View was David Addington who would become President Reagan’s 1988 Deputy Assistant, 1992-1993 DOD General Counsel, and 2001-2008 VP Counsel and Chief of Staff.
Upon information and belief, the joint Senate-House Committee Members did not know of the existence of the “Perot” documents or CEO Perot’s allegation of “chicanery & corruption” at DOD and CIA. Upon information and belief, pursuant to the Unitary Executive theory 1981-1984 CIA Assistant Counsel Addington knew that CIA Director Casey had established an off-the-shelf medical delivery system at IMC, that DOD Secretary Weinberger had established the “do not exist” NSA TSP, and he knew both were funded with off-OMB Budget unaudited HHS funds and not with classified OMB-Budget funds. §§ K, Z, AA, BB, CC.
The appellant has filed a July 27, 2010 FOIA request for the FBI’s retained copy of the February, 1987 “Perot” documents. The appellant also filed a July 27, 2010 de novo request for the NARA “Perot” documents which the NARA Archivist has heretofore refused to docket. The appellant also filed the July 27, 2010 de novo request for the connect-the-dots. Robert II v CIA “North Notebook” log of September 16, 1985 for the unredacted “North call to Perot” document. http://snowflake5391.net/perot.pdf. AG Holder will learn who instructs the 2010 Chief FBI, CIA, and NARA FOIA Officers to use the “Glomar Response” defense. § N.
170 The appellant has filed a July 27, 2010 FOIA request 1987 FBI copy of the “IMC Investigation Final Report” of the 1985-1987 joint FBI-DOJ-HHS task force that conducted the “Fraud Against the Government” investigation of IMC. This document reveals why the IMC investigation was terminated and whether this had been a “black operation” of the DIA and CIA.
The appellant filed July 27, 2010 FOIA requests for the release of the DOJ copy and the HHS copy of this document. If the July, 2010 FBI FOIA Officers are instructed to withhold this 1987 document as a classified “Glomar Response” document, then the FBI, DOJ, and HHS decisions will all be subject to the mandatory declassification review along with the 1985 “North Notebook”, 1986 “FBI Abshire”, 1987 “Perot”, and 1988 “62-0 file” documents.§ L.
Upon information and belief, this document reveals that in March, 1987 after reading the “Perot” documents, AG Meese ordered AAG of the Criminal Division Weld to terminate the “Fraud Against the Government” investigation of IMC and designate all documents as classified documents. If so, then the Members of the Senate-House Committee and their staff also had no knowledge of the “Perot” or joint FBI-DOJ-HHS “Fraud Against the Investigation” of IMC documents when on November 18, 1987 it released to the public its Iran-Contras Affair Report.
The DOJ copy of the “IMC Investigation Final Report” was at issue in Robert v DOJ and SSA. The DOJ FOIA Officer did not assert that the “IMC Investigation Final Report” was a classified document. Rather the DOJ FOIA Officer informed the FOIA requester and Judge Garaufis that a FOIA search did not locate the document. Judge Garaufis instructed the DOJ FOIA officer to conduct a more diligent search. The DOJ FOIA officer again could not locate the document. Based on the DOJ Declaration, Judge Garaufis dismissed the cause of action. If there is no quiet settlement, then the issue of the reasonableness of the DOJ “due diligence” search will be one of the issues in the Robert VIII v DOJ, HHS, and SSA reinstated appeal, and the appellant will cite to the de novo July 27, 2010 FOIA requests for the same document. § II.
The HHS copy of the “IMC Investigation Final Report” was at issue in Robert III v HHS, cv 01-6144 (Gleeson, J). HHS could not locate the document and Judge Gleeson dismissed the cause of action. The de novo July 27, 2010 HHS FOIA request is based on AG Holder’s March 19, 2009 FOIA Guidelines with the presumption of disclosure and President Obama’s December 29, 2009 E.O. 13,256 with its new procedures for the appeal of “Glomar Response” decisions. The new Interagency Security Classification Appeals Panel (ISCAP) will apply the E.O. 13,256 § 5.3 published standards to the classified “IMC Investigation Final Report” document. An ISCAP appeal will provide FBI Director Mueller with an opportunity to review the 1987 “IMC Investigation Final Report” and the “Perot” documents and know whether AG Meese knew in 1985 that a 1982-1987 FBI stovepipe re IMC bypassed FBI Director Judge Webster.
Upon information and belief, HHS IG Kusserow signed off on the “IMC Investigation Final Report” of the joint FBI-DOJ-HHS task force in May, 1987 and signed a nondisclosure agreement not to reveal the existence of the classified IMC documents. If so, then this is an important IMC time line Report because on December 15, 1987 HHS IG Kusserow testified before the House Committee on Government Operations that was conducting its own “Fraud Against the Government” investigation of IMC that would lead to its April 14, 1988 Report: Medicare Health Maintenance Organizations: The International Medical Centers Experience.
171 AG Holder will learn whether HHS IG Kusserow received a waiver from his nondisclosure agreement that permitted him to submit the FBI-DOJ-HHS joint task force “IMC Investigation Final Report” to the House Committee as a classified document not to be cited in the House Report in order to protect the DIA-CIA-FBI sources and methods. If so, then this is an important historical fact if in December, 1987 the House Committee investigating “Fraud Against the Government” at IMC was informed of the “black operation” at IMC, but the Tower Commission, joint Senate-House Committee investigating the Iran-Contras Affairs, and IC Walsh who conducted the criminal investigation, had not been informed of “black operation” at IMC because of an FBI stovepipe that bypassed FBI Director Judge Webster. §§ A, G, J, V.
The 1988 “FBI 62-0 file” are the internal FBI documents that reveal how Robert’s November 6, 1987 letter to FBI Director Judge Sessions alleging wrongdoing by USG officials, was processed. These requested documents had been withheld pursuant to FOIA Exemptions 2, 6 and 7 (C). That decision was defended by 1999-2001 U.S. Attorney Lynch in Robert v U.S. Department of Justice, 2001 WL 34077473 (EDNY), 26 Fed. Appx. 87 (2d Cir. 2002). § W.
In Robert v DOJ as to the “FBI 62-0 file” documents, Judge Mishler determined the FBI had properly provided the plaintiff with the non-exempt documents, including the redacted documents that were responsive to his requests as explained in the Declaration of FBI FOIA Officer Hodes. The use of FOIA Exemption 2, has 2010 significance if the FOIA requested “FBI Abshire”, “FBI Revell”, and FBI “Perot” documents confirm Robert’s allegation that an FBI stovepipe existed that provided FBI Director Judge Webster with a plausible deniability defense to the violations of federal laws that were 1985-1988 impeachable offenses. §§ J , M, W.
Some of the redacted “FBI 62-0” documents were in August, 1988. Hence the importance of AG Holder reading the Declaration of FBI FOIA Officer Hodes along with the FBI “Recarey extradition”, 1985 “FBI Revell” log document, the 1986 “FBI Abshire” documents, the 1987 FBI “Perot” documents, the 1987 FBI “IMC Investigation Final Report” documents, and the 1989 “FBI Agent Allison” documents. Then AG Holder will know whether the redacted FBI officials knew that the rumors as reported in the August 9, 1988 Wall Street Journal that IMC had been a domestic DIA-CIA “black operation” was funded with HHS funds, were true. Miami Mystery: Paid to Treat Elderly, IMC Moves in Worlds of Spying and Politics: Medicare Money Flowed in: Only Mr. Recarey Knows Where It Flowed Next: Congress, "bugs" and Mob.
After AG Holder reads the Robert III v DOJ and Robert v DOJ FBI Declarations, he will know whether the redacted “FBI 62-0 file” FBI officials knew whether FBI Director Judge Webster knew in 1985 that a DIA-CIA-FBI “black operation” had been conducted at IMC. He will also know whether the “Barrett nonacquiescence policy” had been implemented. §§ D, E, G.
As per the July 27, 2010 de novo FOIA request for the “FBI 62-0 file” documents filed with FBI Chief FOIA Officer Hardy, the appellant requested that he apply AG Holder’s March 19, 2009 FOIA Guidelines’ presumption of disclosure standard. In this way, if the FOIA Exemptions 2, 6 and 7 (C) are used, then there will be an Article III review that will be subject to the Second Circuit’s June 9, 2010 Dinler v City of New York decision that there is to be in camera review of withheld classified documents. AG Holder will know that Judge Garaufis will decide whether FOIA Exemptions 2, 6, and 7 were properly used in 1998 and in 2010. §§ XX.
172 The appellant’s July 27, 2010 de novo request for the “Robert v National Archives ‘Bulky evidence file” documents is a request for the March 29, 1989 “FBI Agent Allison” documents. These are the documents that on March 29, 1989 FBI Agent Allison, the FBI’s attorney-liaison with the Office of Independent Counsel (IC) Lawrence Walsh, had in the Robert case file that was in her hands, and her case file notes. The IC staff had scheduled the interview of Robert for March 29, 1989 within the IC’s Office. On that day, the trial of Lt. Col. North was proceeding with IC Walsh’s lead prosecutor Michael Bromwich conducting the trial. Ironically, the Second Circuit decided Ruppert v Bowen on March 29, 1989. § S, GG, AAA.
The “FBI Agent Allison” documents included the documents sent by Robert to IC Walsh alleging that the Boland Amendment had been violated because unaudited HHS funds had been paid to IMC for medical supplies and medical treatment of the Contras. FBI Agent Allison conducted the interview. Robert naively believed her command and control officer was IC Walsh. After the IC Walsh’s Office was closed, his files were transferred to NARA. The appellant filed a NARA FOIA request for the “FBI Agent Allison” documents. That FOIA appeal was subject to the standards established by President Clinton in his April 17, 1995 E.O. 12958, Classified National Security Information. http://www.fas.org/sgp/clinton/eo12958.html.
In Robert v National Archives, 1 Fed. Appx. 85 (2d Cir. 2001), 1999-2001 U.S. Attorney Lynch successfully argued that Second Circuit affirm Judge Wexler’s dismissal based on the NARA Declaration that NARA could not locate the “FBI Agent Allison” documents. The “FBI Agent Allison” documents were also sought in Robert’s September 3, 2008 Motion for a pre- clearance order to file the FOIA complaint that included an appeal of NARA Deputy Archivist Adrienne Thomas’ June 3, 2008 denial of the FOIA request for the “Robert v National Archives ‘Bulky Evidence file” documents that included the “FBI Agent Allison” documents. §§ V, BB.
The “FBI Agent Allison” documents have historical significance because they reveal whether FBI Agent Allison provided IC Walsh with the same information she learned from reading the “FBI Agent Allison” documents, that she provided to FBI Director Judge Sessions. The “FBI Agent Allison” documents reveal whether there was a 1989 “FBI stovepipe” that bypassed FBI Director Judge Sessions so he would not know of the allegation that unaudited HHS funds paid for medical supplies and treatment of the Contras without the knowledge of President Reagan, the Tower Commission, the Iran-Contras Senate-House Committee, and IC Walsh. This is an important fact if the March 29, 1989 “command and control” officer of FBI Agent Allison was not FBI Director Judge Sessions or IC Walsh, but the “Commander in Chief” of the 1989 daisy-chain of shadow government patriots whose “Commander in Chief” was not President Bush. If so, then this is a fact that AG Holder should know. §§ J, K, Z, CC, DD, YY.
After U.S. Attorney Lynch reads the 1999-2000 Robert v National Archives case file notes and e-mails of AUSA Mahoney, she will know that AUSA Mahoney’s “command and control” officer was not U.S. Attorney Lynch. Upon information and belief, the Robert v National Archives case file notes and e-mails reveal that her “command and control” officer was AAG of the Civil Division Ogden who was also AUSA Mahoney’s “command and control” officer during the 1999 Ford v Shalala trial. On September 29, 1999, Judge Sifton rendered the Ford decision that AAG of the Civil Division Ogden instructed U.S. Attorney Lynch to appeal. This led to DAG Holder’s 2000 decision not to perfect the Ford appeal. §§ C, R, S, T, U.
173 The July 27, 2010 FBI FOIA request for the “FBI Agent Allison” documents and the July 27, 2010 NARA FOIA request for the “Robert v National Archives ‘Bulky Evidence file” will provide an opportunity for AG Holder and FBI Director Mueller to learn what FBI Agent Allison did with the information that she had in her custody on March 29, 1989. With 2010 20/20 hindsight and the “Recarey extradition” documents, they will learn whether FBI Director Judge Sessions knew that a “black operation” had been conducted at IMC in 1985 and that HHS General Counsel del Real had been a DIA-CIA covered agent. This is an important time line fact because Associate WH Counsel Astrue’s June 22, 1989 Senate Finance Committee that the nonacquiescence policy had ended, remains as uncured false Senate testimony in July, 2010.
The July 27, 2010 FBI and DOJ FOIA requests for the “FBI Abshire FOIA request” case file notes and e-mails of FBI Chief FOIA Officer Hardy and OIP Associate Director Mc Leod, reveal the names of their command and control officers. They made the 2009 decisions that Judge Garaufis’ Robert v DOJ, and SSA injunction order extended to the FOIA request for the “FBI Abshire” documents and was not limited to Robert filing a FOIA action. AG Holder’s 2010 FOIA Officers will decide whether to use FOIA Exemption 5 and attorney-client privilege with the knowledge that Robert will argue that the “fraud” exception applies because those documents reveal whether USG attorneys committed a fraud upon the court in the information provided Judge Garaufis in AG Gonzales’ 2005 Motion seeking the injunction to prevent Robert from filing any new FOIA requests to prove that DOJ attorneys had been implementing the “Barrett nonacquiescence policy” and withholding material facts from Judge Garaufis and the Second Circuit in Robert VII v DOJ to cover up the FISA and PCA violations. §§ CC, DD.
Hence, the importance of both AG Holder and FBI Director Mueller knowing who made the 2009 injunction interpretation decision because this is evidence of a 2009 FBI “stovepipe.” FBI FOIA Chief Hardy and his command and control officer knew in 2009 that the “FBI Abshire” documents reveal who knew that the July 25, 1985 House Judiciary testimony of DAAG Kuhl that the “nonacquiescence ” policy had ended, was false. These FBI officials knew the “Jackson nonacquiescence policy” had continued to be implemented in 2009 contrary to SSA Commissioner Astrue’s sworn January 24, 2007 Senate testimony. This has historical importance because AG Holder continues in July, 2010 to violate the Social Security Act and due process and equal protection rights of 2010 Ford class members benefits by breaching his Article II duty to “take Care that the Laws are faithfully executed” and equally in all 50 states, contrary to SSA Commissioner Astrue’s January 24, 2007 testimony that the nonacquiescence policy ended. § C.
AG Holder should know which USG employees altered Judge Garaufis’ Robert Order that FBI Chief FOIA Officer Hardy OIP Associate Director Mc Leod relied upon when rendering their decisions that the Judge Garaufis Order enjoined Robert from filing his August 5, 2009 FOIA request for the “FBI Abshire” documents. AG Holder will know the names of the USG employees after he reads the case file notes and e-mails of FOIA Chief Hardy and OIP Associate Director McLeod. Given Robert’s fraud upon the court allegation, after AG Holder reads the “FBI Abshire FOIA request” documents, he will know he has a duty to conduct an investigation to learn whether this was an innocent mistake or a litigation decision. He should know whether the 2005 Judgment was altered as part of the “Barrett nonacquiecence policy” to withhold material facts from Article III Judges in the Robert FOIA actions because the “FBI Abshire” connect-the-dots documents prove true Robert’s almost incredible allegations. § AAA.
174 Therefore, AUSA Mahoney should be reading her own Robert VIII v DOJ, HHS, and SSA case file notes and e-mails re the Robert injunction being applied to the “FBI Abshire” documents along with the “FBI Abshire FOIA request” case files and e-mails. U.S. Attorney Lynch will have her own NYS Professional Model Rules Rule 3.3, duty to cure misrepresentations of fact and law made to Judge Wexler, Judge Mishler and the Second Circuit in Robert v National Archives and Robert v DOJ after she reads the “FBI Abshire” documents along with the Robert III v DOJ “Recarey extradition” ex parte Declaration, September, 1985 Robert II v CIA and DOJ “North Notebook”, September, 1985 Robert v Holz HHS documents, September, 4, 1985 Ruppert case file notes, and the Robert VII v DOJ “FISC Robert” documents, NSA TSP transcripts, case file notes, and e-mails. §§ D-H, V, W, BB, CC, AAA.
As per the July 27, 2010 letter to U.S. Attorney Lynch, if Robert does not receive an e- mail acknowledgment by August 16, 2010, then the appellant will inform AG Holder’s chain of command attorneys that a EDNY 2010 stovepipe bypasses U.S. Attorney Lynch. His August 18, 2010 letters will be a test of the existence of the main Justice 2010 stovepipe. §§ I, J.
EOUSA Director Jarrett, the 1998-2008 OPR Director, will know whether NYS Rule 3.3 applies to both U.S. Attorney Lynch and himself. Because he is the 2010 supervising attorney for all 94 U.S. Attorneys, he will understand the significance of the FBI mosaic of documents and his predecessors implementation of the “Barrett nonacquiescence policy” from 1986-2009. § D.
AAG of the Civil Division West will learn whether AAG of the Civil Division Willard knew in 1985, AAG of the Civil Division Bolton knew in 1989, AAG of the Civil Division Hunger knew in 1995, and AAG of the Civil Division Ogden knew in 2000 that the July 25, 1985 House Judiciary Subcommittee that the “nonacquiescence” policy had ended on June 3, 1985 was false testimony. He will know whether they failed to fulfill their 28 U.S. C. § 535 (b) duty to report the false House testimony to their AGs. Then AAG of the Civil Division West will have his own 2010 28 U.S. C. § 535 (b) duty to report to AG Holder his knowledge that SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee testimony that the “nonacquiescence policy” had ended prior to 1989, remains as uncured false testimony. § J.
Associate AG Perrelli is also AG Holder’s Chief FOIA Officer. Therefore, the FOIA requested 1985 “FBI Revell”, 1986 “FBI Abshire”, 1987 “Perot”, 1987 “IMC Investigation Final Report”, 1988 “FBI 62-0 file”, 1989 “FBI Agent Allison”, and 2009-2010 “FBI Abshire FOIA request” connect-the-dots will reveal whether he has a duty to explain how President Obama’s E.O. 13,256 § 1.5 declassification and § 1.7 misclassification standards apply to the July 27, 2010 FOIA requests for other agency connect-the-dots documents that corroborate the fact of the existence of the FBI stovepipe from 1984-2010. Chief FOIA Officer Perrelli will consult with the 2010 Chief FOIA Officers: CIA Chief Information Officer Adolfo Tarasiuk, Jr., NARA General Counsel Gary Stern, OMB Associate Deputy Director for Administration Robert Shea, SSA General Counsel David Black, HHS Acting Assistant Secretary for Public Affairs Bill Hall, DOD Acting Director, Administration and Management Michael Rhodes, and DNI Acting Deputy Director for Administration Lawrence Baer. Then Chief FOIA Officer Perelli will inform AG Holder whether the FBI mosaic of documents prove that a 1984-2010 FBI stovepipe bypassed the FBI Directors to provide them with plausibility deniability defenses to the violations of laws that were impeachable offenses for 1984-2010 Presidents. §§ A, CC.
175 Acting DAG Grindler will learn whether prior to his resignation, DAG Ogden knew of the mistaken Robert injunction interpretation that violated Robert’s 2009 First Amendment right of access to the Courts. This is an important fact because he was AUSA Mahoney’s 2000 command and control officer in Robert v National Archives when he approved the filing of the 2000 NARA Declaration as to the reasonable search for the “FBI Agent Allison” documents. He also was AUSA Mahony’s command and control officer in Ford v Shalala when he instructed U.S. Attorney Lynch to file the 2000 Ford appeal that was not perfected. §§ C, V, W, AAA.
AG Holder, the 1976-1988 Public Integrity Section, will learn from reading the FOIA requested FBI documents of the importance of President Obama knowing whether a 1984-2010 FBI stovepipe bypassed all of the FBI Directors: Judge Webster (1978-1987), (Acting) Otto (1987), Judge Sessions (1997-1993), (Acting) Clarke (1993), Judge Freeh (1993-2001), and Mueller (2001-). This is an important fact for President Obama to know if the connect-the-dots FOIA requested documents reveal that Presidents Reagan, Bush, Clinton, Bush, and Obama all breached their § 413 (b) of the National Security Act to report the “corrective action” taken to cure violations by the intelligence community by their violation of the Social Security Act to fund unreported § 413 (a) “black operations” at IMC and at the NSA. §§ J, L, M, N, O, P, Q.
AG Holder can consult with his chain of command attorneys and learn whether in their opinion Robert’s First Amendment right of access to the Courts is being violated in August, 2010 by FBI Chief FOIA Officer Hardy and his FBI command and control refusing to make a “FBI Abshire” FOIA decision. Chief FOIA Officer Perrelli will know whether this is 2010 connect- the-dots evidence of the violation of Robert’s First Amendment right of access to the Courts with the 1985-1988 sealed HHS Robert v Holz documents and DOJ case file notes. § AAA.
AG Holder can consult with FBI General Counsel Caproni who has a 1985-2010 institutional knowledge of the violation of Robert’s First Amendment right of access to the courts that tracks back to the 1985 “Fraud Against the Government” investigation of Robert that was supervised by EDNY Chief Begleiter when she was an EDNY AUSA. As the 2004 FBI General Counsel in Robert VII v DOJ, she read the “FISC Robert” documents that on March 1, 2004 OIPR Counsel Baker withheld by using FOIA Exemption 1 and the “Glomar Response” defense. She knows the “FISC Robert” documents contain the false facts that FBI Director Judge Webster had evidence that Robert was a terrorist or an agent of a foreign power. She also knows who authorized the Robert NSLs sent to his law firm escrow bank and to his ISP. § AAA.
As per the July 27, 2010 de novo FBI FOIA request, Robert has requested that FBI Chief FOIA Officer Hardy consult with FBI General Counsel Caproni. Upon information and belief, FBI General Counsel Caproni will provide a “heads up” memo for FBI Director Mueller and advise him of the Dinler decision, the content of the FBI documents, and that SSA Commissioner Astrue’s January 24, 2007 testimony remains as uncured false testimony. § XX.
Therefore, AUSA Mahoney should be providing a heads up memo for U.S. Attorney Lynch. Then U.S. Attorney Lynch will understand how the FBI “Recarey extradition”, “FBI Revell”, “FBI Abshire”, FBI “Perot”, FBI “IMC Investigation Final Report”, 1988 “FBI 62-0 file”, “FBI Agent Allison”, “FBI Abshire FOIA request”, and Robert VII v DOJ “FISC Robert” documents are connect-the-dots documents that answer the Jackson question. § GG.
176 Z. OMB General Counsel Bansal’s duty to read the undocketed FOIA requested 1982- 2009 “OMB Jackson” documents and determine if the decisions not to docket and the use of the “Glomar Response” defense violated the OMB April 7, 2010 Open Government Plan
The appellant has placed U.S. Attorney Lynch on Notice of OMB General Counsel Bansal’s duty to read the undocketed August 5, 2009 FOIA requested 1982-2008 “OMB Jackson” subject to the “Glomar Response” defense, and the undocketed March 11, 2009 request for 2009 “OMB Jackson” documents. These documents contain smoking gun evidence that SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee testimony was false because the implementation of the “Jackson nonacquiescence policy” reduced the monthly SSI benefits paid to 1994-2009 Ford v Shalala class members. OMB General Counsel Bansal has a duty to instruct OMB Chief FOIA Officer Robert Shea to apply OMB Director Orszag’s April 7, 2010 Open Government Plan with its mission to provide the public with OMB transparency and accountability to the FOIA requested “OMB Jackson” documents. §§ A, R-U.
As of the date of this White Paper, the OMB FOIA Officers Dionne Hardy and Donald Hawkins have not responded to the March 11, 2010 requests for docket numbers for the August 5, 2009 FOIA requested 1982-2008 “OMB Jackson” documents withheld pursuant to the use of the “Glomar Response” defense, and the 2009 “OMB Jackson” documents. Upon information and belief, this is the result of the 2009-2010 OMB stovepipe whereby the 2009-2010 daisy- chain of shadow government patriots make the decisions to distribute off-OMB Budget funds to pay for “black operations” without the knowledge of OMB Director Orszag. §§ K, J, U, DD.
As per the July 27, 2010 complaint letter filed with OMB Chief FOIA Officer Associate Director for Administration and Government Performance Robert Shea, he will learn the name of the “command and control” officer of OMB FOIA Officers Dionne Hardy and Donald Hawkins who ordered them not to docket the FOIA requests for the 1982-2008 and 2009 “OMB Jackson” documents and to use the “Glomar Response” to withhold the 1982-2008 “OMB Jackson” documents. He will learn that the FOIA Officer’s command and control officer was not OMB Director Orszag, and that a 2009-2010 OMB stovepipe had bypassed OMB Director Orszag to provide him with a plausible deniability defense to the diversion of off-OMB Budget unaudited “Jackson nonacquiescence policy” funds to pay for “black operations in 2010. § K.
In his April 7, 2010 OMB Open Government Plan, OMB Director Orszag informed the public that OMB’s purpose is to assist the President implement the Federal budget:
OMB’s Open Government Plan begins with a description of OMB’s central mission, which is to assist the President in overseeing the preparation and implementation of the Federal budget and to oversee and coordinate the Administration’s legislative, management, performance management, and regulatory practices. Unlike other Cabinet Departments and agencies that directly implement government programs and deliver services to the public, OMB’s resources are largely directed toward assisting the President to manage the Executive Branch. This unique role is reflected in the key components of the OMB’s Government Plan. Id. i. Emphasis Added. http://www.whitehouse.gov/sites/default/files/microsites/100407-omb-opengov-plan.pdf
177 OMB Director Orszag explained the OMB Open Government Plan and its key Transparency component as to the budget and regulatory oversight activities:
Transparency. OMB’s Open Government Plan discusses OMB’s current procedures and activities to promote the transparency of OMB’s operations. It also includes OMB’s Strategic Action Plan to improve Transparency and its budgetary, legislative, management, and regulatory oversight activities. Id. i. Emphasis Added.
OMB Director Orszag explained how OMB formulates and executes the Budget:
OMB has five resource management offices (RMOs), organized by agency and by program area. These offices, together with OMB’s Budget Review Division, help to carry out OMB’s central activity of assisting the President in overseeing the preparation of the Federal Budget and supervising its administration of Executive Branch agencies. In helping to formulate the President’s spending plans, the RMOs assess the effectiveness of agency program, policies, and procedures, weigh competing funding demands within and among agencies, and help work with agencies to set funding priorities. Once the Budget is enacted, RMOs are responsible for the execution of Federal budgetary policies and provide ongoing policy and management guidance to Federal agencies. As part of these and other responsibilities, the RMOs provide analysis and evaluation, oversee implementation of policy options, and support government-wide management initiatives. Id. 1. Emphasis Added.
OMB Director Orszag explained OMB Compliance with FOIA requirements and described the small OMB FOIA unit which has only one full time staff member:
In OMB’s review of documents that are responsive to a FOIA request, OMB applies the Administration’s “presumption of disclosure,” by conducting a document-by-documents, line-by-line review to identify materials that are appropriate for release. In its recent report on the Executive Branch’s FOIA activities, the National Security Archive noted that OMB has had a positive record during this Administration of “both increases in releases and decreases in denials under the FOIA”—with a decrease of over 50 percent in OMB’s full denials or withholdings.
OMB is a relatively small agency with a relatively small staff (especially as compared with the Federal departments and major agencies). OMB has a central FOIA Office, with one full time-time staff member. In addition, other OMB staff, throughout OMB, work on FOIA requests (representing an additional 1.5 “full-time equivalent” staff devoted to FOIA activities). OMB is exploring ways, including through increased reliance on information technology, to increase expeditious processing of FOIA requests. Id. 7. Emphasis Added.
178 Because there is only one full time OMB FOIA employee, OMB Chief FOIA Officer Shea will know the name of the “command and control” officer of OMB FOIA Officers Hardy and Hawkins who ordered them not to docket the OMB FOIA requests and to use the “Glomar Response” defense to withhold the FOIA requested 1982-2009 “OMB Jackson” documents. Given the gravity of the FOIA requester’s assertion that a “follow the money” audit reveals that 1982-2009 “Jackson nonacquiescence policy” funds have been used as off-OMB-Budget unaudited HHS-SSA funds to pay for domestic IC “black operations” that were not funded with classified OMB Budget funds, OMB FOIA Chief Officer Shea has a duty to read the documents, apply OMB Orszag’s April 7, 2010 Open Government Plan standards, and inform AG Holder who made the “Glomar Response” decisions on behalf of resigning OMB Director Orszag. § N.
Upon information and belief, OMB Chief FOIA Officer Shea will learn that OMB Director Orszag had recommended the release of the FOIA requested 1982-2009 “OMB Jackson” documents, but that SSA Commissioner Astrue objected to that decision. Upon information and belief, SSA Commissioner Astrue had read the “OMB Jackson” documents that SSA Actuary Stephen Goss had reviewed because he is also responsible for the analysis of the cost of all regulations including the SSI “Jackson” regulation, 20 C.F.R. § 416.1130 (b). § U.
It has been reported that there has been tension between SSA Commissioner Astrue and SSA Chief Actuary Goss and his independence in providing information to Congress:
My goal is to maintain the absolute independence and integrity of the actuary’s office. We don’t countenance any influence of any type on our assumptions or our prognostications. Our estimates may not always be right, but they will never be biased. Pear, Lawmakers Defend Social Security’s Chief Actuary in Clash with Commissioner, New York Times, 7-11-10. Emphasis added.
Upon information and belief, SSA Actuary Goss, a thirty year SSA employee, reviewed the 1982-2009 “OMB Jackson” documents prepared by OMB Associate Director for Education, Income Maintenance and Labor Robert Gordon pursuant to the FOIA request. Upon information and belief, OMB Associate Director Gordon recommended the release of the documents.
Upon information and belief, OMB Associate Director for Defense and International Affairs Steve Kosiak after consultation with SSA Commissioner Astrue, recommended the use of the “Glomar Response” defense to withhold the documents. From 1991-1996 OMB Associate Director for Defense Kosiak was a Defense Budget Analyst at the Center for Strategic and Budgetary Assessments, where he monitored and assessed defense budget issues. § K.
Upon information and belief, OMBB Chief FOIA Officer Shea will learn OMB Director Orszag was “overruled” by a member of the daisy-chain of shadow government patriots who ordered OMB FOIA Officer Hardy to use the “Glomar Response” and not to docket the FOIA Request to prevent an appeal of the denial decision. If so, then OMB FOIA Chief Shea should inform AG Holder because the “Commander-in-Chief” of the command and control officer of OMB FOIA Officers Hardy and Hawkins who made the decision to use the “Glomar Response” defense to withhold the 1982-2009 “OMB Jackson” documents, was not President Obama. § N.
179 Upon information and belief, AG Holder will learn that the OMB FOIA decision-maker made the “Glomar Response” defense decision without the knowledge of Deputy Assistant to the President-Assistant to the President for Homeland Security and Counterterrorism John Brennan and National Security Council Chief of Staff Denis McDonough in order to provide them with a “plausible deniability” defense to the fact that the “OMB Jackson” funds continue in 2010 to pay for the “do not exist” DOD Cyber Command NSA TSP and PSP data banks. If so, then President Obama and AG Holder should know whether the “Commander in Chief” of the command and control officer of the OMB FOIA officers is a member of the 1982-2010 daisy-chain of shadow government patriots who in 2010 are implementing the Unitary Executive theory of 1981-1984 Assistant CIA General Counsel Addington as explained in Congressman Cheney’s November 18, 1987 Iran-Contra Affairs: Minority View. §§ K, Y.
Deputy Assistant to the President Brennan was a 25 year CIA agent-official. He was the 1999-2001 Chief of Staff of CIA Director Tenet before becoming the 2002-2004 CIA Deputy Executive Director. Because of CIA and DOD compartmentalization, he did not know the 1984- 2004 off-OMB Budget funding source for the “do not exist” 1984-2004 NSA TSP and PSP data banks. As the 2004-2005 interim Director of the National Counterterrorism Center, he did not have the authority to learn the source of the “do not exist” 2004-2005 NSA PSP data banks which he knew were not funded with classified OMB Budget funds. § K, M, CC, DD.
It was reported that National Security Council Chief of Staff McDonough is the information gate-keeper for President Obama. “It’s a big asset for all of us to have Denis, who has known the president for so long,” General Jones said. “He knows how he thinks about issues.” Cooper, The Adviser at the Heart of National Security, NY Times, 7-10-10.
If President Obama’s June 5, 2010 NDI Nominee Lt. General James R. Clapper, retired, is confirmed, then the “Commander-in-Chief” and chain of command issue as to who makes “Glomar Response” decisions as to the use off-OMB Budget funds to pay for the “do not exist” DOD Cyber Command 1984-2010 NSA TSP and PSP data banks that have not been funded with classified OMB Budget funds, should be eliminated. Nominee Clapper is the current Under Secretary of Defense for Intelligence. He was nominated in part because of his budget experience. “As Under Secretary of Defense for Intelligence, he has successfully overseen the military and civilian intelligence personnel and budgets that make up the bulk of our 16-agency intelligence community.” Emphasis Added. President Obama also nominated him because he has the quality of informing officials what they did not want to hear, including President Obama. “ He possesses a quality that I value in all my advisors: a willingness to tell leaders what we need to know, even if it’s not what we want to hear.” Emphasis Added. http://www.whitehouse.gov/blog/2010/06/05/james-r-clapper-jr-dni-four-decades-service
NDI Director Nominee Clapper was President Clinton’s 1992-1995 Director of the Defense Intelligence Agency (DIA). He knows that the 1992-1995 funding source for the “do not exist” 1984-1995 NSA TSP data banks was not classified OMB Budget funds. As a result, he knows whether a plausible deniability defense had been provided President Clinton’s 1993- 1994 OMB Director and 1994-1997 Chief of Staff Leon Panetta as to the existence of the “do not exist” NSA TSP conducted by 1992-1996 NSA Director Mike Mc Connell. If confirmed, then DNI Director Clapper will report directly to Commander in Chief Obama. §§ K, CC, DD.
180 As per the February, 2010 PNSR Report, OMB Director Orszag and NCTC Director Leiter were working together to establish a comprehensive counterintelligence budget that would be the basis of the FY 2012 classified OMB Budget. Therefore, there should be no question of fact as to whether a 2010 OMB stovepipe existed in the OMB mailroom which bypassed OMB Director Orszag to provide him with a plausibility defense to the 2010 violation of the Social Security Act. If DOD Secretary Gates made the decision to fund the Cyber Command data banks with classified OMB Budget funds, then AG Holder should be making the not so hard decision for an AG who possesses the Chilicky “normal sensibilities” of human beings, that in the 2010-2011 transition years the millions of Ford v Shalala class members should not continue to be the 2010-2011 off-OMB Budget funding for “do not exist” data banks. §§ K, Q, CC, DD.
President Obama’s July 13, 2010 OMB Director Nominee Jacob Lew was President Clinton’s 1998-2001 OMB Director. In October 1994 he was OMB Director Panetta’s Executive Associate Director and Associate Director for Legislative Affairs. From August 1995 until July 1998, he was the Deputy Director of OMB and was responsible for day-to-day management of a staff of 500. Thus in the critical year of 1995 when Associate AG Schmidt made the key decision to continue to defend the “Jackson nonacquiescence policy” in the Gordon litigation, he was the 1995 OMB official most responsible for the distribution of the SSI funds that Congress appropriated for the April 9, 1994 nationwide certified Ford v Shalala class SSI recipients, which in 1995 were reduced by one-third in 47 States. § C, P, Q, R, S, T, U.
After his confirmation, OMB Director Lew will read the 1982-2008 and 2009 “OMB Jackson” documents withheld pursuant to the use of the “Glomar Response” defense. He will learn where the “lost” 1982-2009 “Jackson nonacquiescence policy” funds were diverted. Then he will know how it-could-have-happened that he did not know from 1994-2001 that off-OMB Budget unaudited “Jackson nonacquiescence policy” HHS-SSA funds had been diverted to pay for the “do not exist” 1994-2001 NSA TSP data banks that were not funded with classified OMB Budget funds. Then he will be able to answer the how-could-it-have-happened Jackson question and solve the Gordon riddle for President Obama because he will know the names of the 1995 USG Unitary Executive daisy-chain of shadow government patriots. §§ K, N.
If President Obama’s OMB Director Nominee Lew and his NDI Director Nominee Clapper are both confirmed in August, then the 1995 “OMB Jackson” documents are the smoking gun documents that prove that Associate WH Counsel Astrue had lied to the Senate Finance Committee at his June 22, 1989 confirmation hearing to be the HHS General Counsel because the nonacquiescence policy continued in 1995. The 1995 “OMB Jackson” documents contain “hard evidence” to confirm the source of the off-Budget construction and maintenance of the 1995 “do not exist” NSA TSP data banks that were being accessed in 1995 by President Clinton’s Director of the DIA Lt. General Clapper (1992-1995). In 1995 DAG Gorelick (1994- 1997), who had been the 1993-1994 DOD General Counsel who succeeded DOD General Counsel Addington (1992-1993), had constructed the 1995 “wall” to prevent violations of the PCA if NSA military officials crossed the “passive-active participation” line in domestic law enforcement proceeding given the “exclusivity provision” of the FISA. That 1995 “wall” was based on AAG of the OLC Dellinger’s April 5, 1994 Use of Military Personnel for Monitoring Electronic Surveillance, and February 14, 1995 Standards for Searches Under Foreign Intelligence Surveillance Act opinions interpreting the PCA and FISA. §§ K, CC, DD.
181 The 1995 “OMB Jackson” documents are also smoking gun evidence of the existence of the 1995 daisy-chain of shadow government patriots who continued to implement the Unitary Executive theory of 1981-1984 CIA Assistant Counsel Addington without the knowledge of WH Counsel Mikva. After his confirmation, OMB Director Lew will have clearance to read the FOIA requested “Mikva” documents that were at issue in Robert v DOJ and the July 27, 2010 FOIA requested “1995 Associate AG Gordon” memo. Upon information and belief, in 1995 Associate Deputy Attorney General Ogden (1995-1997), the 1994 -1995 DOD Deputy General Counsel, and Deputy Associate Attorney General Schroeder (1995-1997), the 1993-1994 Counselor to AAG of the OLC Dellinger, knew the content of this document which Associate AG Schmidt answered WH Counsel Mikva. Upon information and belief, this document explained that the 1995 DOJ Jackson and Ruppert “nonacquiescence” policies were based on the INS Mendoza offensive collateral estoppel decision as explained by SG Days and AAG of the Civil Division Hunger in n. 4 of the SG’s February, 1996 Gordon Brief. §§ H, T.
OMB Nominee Lew also has Article I experience having been the 1979-1987 Principal domestic policy adviser to House Speaker Tip O’Neill. As an attorney, he will be sensitive to the separation of powers issue caused by the violation of the Boland Amendment and the use of unaudited HHS funds to pay for the medical supplies and treatment of the Contras at IMC rather than the use of the June, 1985 Congressionally appropriated Nicaraguan Humanitarian Assistance Office (NHAO) funds that were administered by the Department of State. He will understand the Unitary Executive issue of 1985-1987 FBI Director Judge Webster not informing the “Gang of Eight” of the National Security Act § 413 reporting violation re IMC, and 1987 CIA Director Judge Webster not informing the joint Senate-House Iran-Contras Committee of the facts in the February 24, 1987 “Perot” documents. §§ K, Y, AA, BB, CC.
OMB Nominee Lew can flat out ask OMB Director Orzag whether he knew as January 2007 to November 2008 Director of the Congressional Budget Office, the funding source for the “do not exist” 1984-2010 NSA TSP and PSP data banks that were not funded with 1994-2010 classified OMB Budget funds. If not, then this highlights the importance of the appeal to ISCAP of OMB FOIA Officer Hardy’s denial of the FOIA request for the 1982-2008 and 2009 “OMB Jackson” documents with the use of the “Glomar Response. §§ K, L, M, N, CC, DD, AAA.
On the day of his confirmation, OMB Director Lew will want to be prepared to answer the questions of investigative reporters and historians as to the source of the funding for the construction and maintenance of the “do not exist” buildings used by the “Top Secret America” as mapped out by Priest and Arkin in their Washington Post July 19-21, 2010 series: Top Secret America: A hidden world, growing beyond control, Top Secret America: National Security Inc, and Top Secret America: The Secrets Next Door. He will want to know if any off-OMB budget “OMB Jackson” funds were used because classified OMB Budget funds could not be used. § K.
The 1982-2009 “OMB Jackson” documents will also provide OMB Director Lew with the answer to the 2009-2010 Commander in Chief question: Who was the 2009-2010 OMB Commander in Chief of the OMB official who made the 2009 decision to use of the “Glomar Response” defense for the “OMB Jackson” FOIA requests without the knowledge of OMB Director Orszag if it was not Commander in Chief Obama? This is an answer that 1998-2001 OMB Director Lew should be providing President Obama in 2010. §§ A, K, N, CC, DD, YY.
182 After he is confirmed, OMB Director Lew will be responsible for providing AG Holder with the cost-benefit analysis facts if AG Holder decides to cure the 1994-2010 Ford v Shalala due process violations by ordering SSA Commissioner Astrue to make true his January 24, 2007 testimony that the “nonacquiescence” policy had ended prior to his becoming HHS General Counsel in 1989. Therefore, Nominee Lew should know the names of the chain of command USG officials who instructed OMB FOIA Officer Hardy to use the “Glomar Response” defense to withhold the FOIA requested 1982-2009 “OMB Jackson” documents and not to docket those FOIA requests to bypass E. O. 13, 256 ISCAP review. §§ L, M, N, U.
After he is confirmed, OMB Director Lew will consult with OMB General Counsel and Senior Policy Advisor Preeta Bansal to learn the legal basis of the decision to use the “Glomar Response” defense to withhold the 1982-2009 “OMB Jackson” documents and not to docket the FOIA request for the “OMB Jackson” documents. Upon information and belief, she has clearance to read the FOIA requested “1995 Associate AG Gordon” memo. With 20/20 hindsight, she will determine whether Associate AG Schmidt had provided accurate information to WH Counsel Mikva as to the legal basis for defending the 1982 “Jackson nonacquiescence policy” of HHS General Counsel del Real and 1990 “Ruppert nonacquiescence policy” of HHS General Counsel Astrue given SSA Commissioner Astrue’s January 24, 2007 testimony. § H.
OMB General Counsel Bansal will consult with AAG of the OLP Schroeder. They will both read the 1982-2009 “OMB Jackson” documents and review the “Glomar Response” decision. They will determine whether President Obama has a 2010 Article II “take Care” duty to comply with 50 U.S. C. § 413 (b) duty and report to Congress the illegal intelligence community activities of using off-OMB Budget unaudited funds to pay for “do not exist” 1984- 2010 NSA TSP and PSP data banks that were not paid for with classified OMB budget funds:
(b) Reports concerning illegal intelligence activities The President shall ensure that any illegal intelligence activity is reported promptly to the congressional intelligence committees, as well as any corrective action that has been taken or is planned in connection with such illegal activity. Emphasis Added.
If so, then OMB Director Lew should request that OIPR Director Sunstein prepare a cost benefit analysis for President Obama’s § 413 (b) “corrective action” plan. This should include the cost of AG Holder agreeing to the Robert VIII v DOJ, HHS, and SSA quiet settlement offer. The 1982-2009 “OMB Jackson” documents would be the basis of cost benefit analysis. § R-U.
If OMB Director Lew determines that OMB FOIA Officer should not docket the FOIA request for the 1982-2009 “OMB Jackson” documents, then that decision will be subject to Robert’s request for E.O. 13,256 § 1.5 Mandatory Declassification Review (MDR). It will also be subject to the appellant’s request for a § 1.7 misclassification decision and the application of the § 1.7 (a)(2) embarrassment standard. Therefore, U.S. Attorney Lynch should be reading the 1982-2009 “OMB Jackson” documents to inform AG Holder where the 2010 “Jackson nonacquiescence policy” funds are being distributed that are not paid to 2010 Ford class members. This is information that AG Holder should know when he considers the appellants quiet settlement offer prior to the September 3, 2010 reinstatement date. § C, K, L, M, P, Q, N.
183 AA. CIA General Counsel Preston’s duty to read four 1985 de novo CIA FOIA requested Robert II v CIA and DOJ documents that are connect-the-dots documents to the “FBI Abshire” and “OMB Jackson” documents and reveal 1985 USG “sources and methods” and violations of the Boland Amendment, National Security Act, and Social Security Act
Given the gravity of the allegations, CIA General Counsel Preston has a duty to read the July 27, 2010 FOIA requested Robert II v CIA and DOJ, cv-02-6788 (Seybert, J), four unredacted 1985 documents along with the case file notes and e-mails which reveal whether 1985 USG sources and methods included violating the Boland Amendment, National Security Act and Social Security Act. U.S. Attorney Lynch will learn who ordered EDNY U.S. Attorney Mauskopf (2002-2007) and Acting U.S. Attorney Campbell (2007-2010), to implement the “Barrett nonacquiescence policy” and withhold material facts from Judge Seybert to protect the 1985 sources and methods. U.S. Attorney Lynch can consult with CIA General Counsel Preston, a 1995-1998 DAAG in the Civil Division who has access to the 1981-1987 CIA archives. He can confirm whether HHS General Counsel del Real had been a covered agent when he made his “Jackson nonacquiescence policy” decisions. He also can provide CIA Director Panetta with an answer to the Jackson question and solve the Gordon riddle. §§ R-Z.
EDNY AUSA Beckmann did not respond to the March 11, 2010 inquiry whether she was the AUSA assigned to Robert II v CIA and DOJ. As a result, the plaintiff will presume the March 11, 2010 inquiry was received by AUSA Mahoney’s command and control officer and was sent through the EDNY “stovepipe” to his/her 2010 “command and control officer. § I.
As per the July 27, 2010 de novo CIA FOIA request, Robert seeks the release of four 1985 documents from which CIA Director Panetta, President Clinton’s 1993-1994 OMB Director and 1994-1997 Chief of Staff, will learn whether CIA Director Casey had implemented a “black operation” at IMC which was funded with off-OMB Budget funds in violation of the Boland Amendment. These are 1985 connect-the-dots CIA documents with the “FBI Abshire” and Robert III v DOJ FBI “Recarey extradition” documents and reveal whether VP Bush’s 1985 Task Force on Terrorism knew a “black operation” was conducted at IMC that was not reported to Congress in violation of President Reagan’s 50 U.S.C. § 413(a) duty. They are connect-the- dots documents with 1985 “OMB Jackson” documents that reveal whether off-OMB Budget HHS nonacquiescence policy funds were used to pay for the “black operation”at IMC. §§ Y, Z.
The 9/3/85 North-FBI Exemptions 1,7 document reveals whether FBI Executive Assistant Director of Investigations “Buck” Revell knew of a “black operation” at IMC. http://www.snowflake5391.net/9-3-85North-FBI.pdf. The 9/6/85 CIA-FBI Exemptions 1, 3 document reveals whether FBI Director Judge Webster knew the VP’s Task Force on Terrorism believed that the “black operation” at IMC was funded with NHAO funds. http://www.snowflake5391.net/9-6-85NorthCIA.pdf. The 9/16/85 North-Call to Perot Exemptions 1 and 3 document reveals whether Lt. General North knew EDS President Perot knew unaudited HHS funds funded the “black operation” at IMC in violation of the Boland Amendment. http://snowflake5391.net/perot.pdf. The 10/1/85 CIA-DOD FOIA Exemption 1 and 3 document reveals whether the VP’s Task Force on Terrorism knew the funding source of medivac helos used by the Contras was not the June, 1985 Department of State NHAO funds, but HHS funds. http://www.snowflake5391.net/medivachelos.pdf. §§ A, L, M, N, O, P, XX.
184 CIA General Counsel Preston will read the four de novo FOIA requested unredacted 1985 Robert II v CIA and DOJ documents along with IMC CIA archived documents and know whether a DIA-CIA-FBI “black operation” was conducted at IMC which used unaudited HHS funds in violation of the Boland Amendment. He will know whether FBI Director Judge Webster knew of the IMC “black operation” in 1985 when the joint FBI-DOJ-HHS task force was conducting its “Fraud Against the Government” investigation at IMC. §§ V, W, Y, Z, BB, II.
CIA General Counsel Preston will also confirm that in September, 1985, CIA Deputy Director for Intelligence Gates did not know of Boland Amendment violations because of a CIA stovepipe which bypassed him. DOD Secretary Gates explained in his Memoir, From the Shadows, Simon and Schuster, 1996, that he had no knowledge of the violations of the Boland Amendment and the National Security Act, because of a CIA stovepipe that existed:
“Thus, by the time of the prohibition on CIA began on October 1, 1984, the action on Nicaragua and the Contras had passed from the CIA to NSC. The details of all of this were known only to a handful of people at CIA headquarter. I was not among them. Id. 392. Emphasis Added.
CIA General Counsel Preston will advise CIA Director Panetta whether CIA Director Casey’s use of off-OMB Budget unaudited HHS funds to pay for the IMC off-the-shelf medical delivery system to provide medical supplies and treatment for the Contras, violated the Boland Amendment, National Security Act, and Social Security Act. He will advise if these were 1985 impeachable offenses. CIA General Counsel Preston will inform CIA Director Panetta whether HHS General Counsel del Real was a CIA covered agent as 1981-1985 HHS General Counsel and then as IMC President Recarey’s Chief of Staff from December, 1985-1987. This is an important 1985 “Past is Prologue” fact to trigger the application of the 1986 Bowen v City of NY “clandestine” policy remedy for 1994-2010 Ford v Shalala class members. §§ A, B, V, W, Y, Z.
CIA General Counsel Preston was the 1993-1995 DOD Principal Deputy General Counsel, including an extended period as Acting DOD General Counsel. Therefore, he can also advise CIA Director Panetta, the 1993-1994 OMB Director, whether the “do not exist” 1984- 1994 NSA TSP data banks existed without the knowledge of President Clinton or the “Gang of Eight.” He can advise whether the construction and maintenance of the “do not exist” 1984- 1995 was funded with off-OMB Budget funds that were unaudited HHS funds in violation of § 413 National Security Act and Social Security Act. If so, then this is an important 1995 “Past is Prologue” fact if 1994-1997 Chief of Staff Panetta and 1995-1996 WH Counsel Mikva did not know the NSA TSP existed. If not, then this is cumulative evidence that the 1995 “Commander in Chief” of the daisy-chain of shadow government patriots was not President Clinton. § N.
CIA General Counsel Preston was the 1995-1998 DOJ DAAG responsible for civil litigation in the courts of appeals. This would include the 1995 Gordon v Shalala Second Circuit appeal. If he worked on the Gordon appeal, then he knows Associate AG Schmidt’s 1995 legal conclusion in response to AG Mikva’s January 17, 1995 request that he review the DOJ litigation position in Gordon and the defense of the Jackson and Ruppert “nonacquiescence” policies. He can provide CIA Director Panetta, an attorney, a 2010 answer to the how–could- this-have-ever-happened Jackson question and solve the Gordon riddle. §§ H, P, Q, T, U, W, Z.
185 CIA General Counsel Preston, as the 1993-1995 DOD Principal Deputy General Counsel, can advise CIA Director Panetta whether by application of AAG of the OLC Dellinger’s 1994- 1995 PCA and FISA OLC opinions, the 1993-1995 access by NSA military officers use of information from the “do not exist” 1993-1995 NSA TSP data banks, were violations of the PCA and the FISA. This is a 1995 “Past is Prologue” fact for CIA Director Panetta, DOD Secretary Gates, Under Secretary of Intelligence-DNI Director Nominee Clapper, FBI Director Mueller, AG Holder, WH Counsel Bauer, and Assistant to the President for Homeland Security and Counterterrorism Brennan (a CIA agent for 25 years), to know. If 2010 DOD Cyber Command military officers are using the information from the 2010 “do not exist” 1984-2001 NSA TSP data banks in violation of the “exclusivity provision” of the FISA and the domestic law enforcement limitations of the PCA, then President Obama should know these facts. §§ CC, DD.
CIA General Counsel Preston will be providing CIA Director Panetta with valuable “Past is Prologue” information as the July 27, 2010 FOIA requests proceed. Pursuant to President Obama’s December 29, 2009 E.O. § 1.5, the CIA declassifying officer will seek the guidance of CIA General Counsel Preston whether the 25 year automatic declassification standard applies to the 1985 documents given the 2010 “continued classification” issue that is lurking because the off-OMB Budget “Jackson nonacquiecence policy” funds continue to be generated in 2010 to pay for “black operations” not funded with 2010 calendar year OMB Budget classified funds. CIA Director Panetta will learn whether the 1985 Past is Prologue funding “black operations” without President Reagan’s knowledge, became the 1995 Past is Prologue funding “black operations” without President Clinton’s knowledge, and has now become the 2010 Past is Prologue funding “black operations” without President Obama’s knowledge. §§ K, N, CC, TT.
If CIA General Counsel Preston learns that no President has ever complied with the National Security Act § 413 duty to inform the “Gang of Eight” of the IC’s use of information from the “do not exist” 1984-2001 NSA TSP data banks, then he has a duty to consult with AG Holder whether President Obama has a 2010 duty fulfill to report this fact to Congress. At his May 21, 2009 Senate Intelligence Committee confirmation hearing, Nominee Preston discussed the President’s 50 U.S.C. § 413 duty to report IC activities to the Congress. §§ K, O.
Prior to his confirmation hearing CIA General Counsel Nominee Preston answered a set of questions from the Senate Intelligence Committee. The first question raised the issue of the CIA General Counsel providing legal opinions to the Intelligence Committees:
A. I would support providing a legal opinion to the intelligence committees where appropriate in order to keep committees fully and currently informed of intelligence activities as required by Section 502 of the National Security Act of 1947. I do not support an absolute rule—either precluding disclosure of any legal opinion of the Justice Department or of an OGC in the IC to the committees in any instance, or requiring disclosure of all legal opinions of the Justice Department or of an OGC in the IC to the committees in all instances. This is a judgment to made on a case-by-case basis in light of the particular circumstances and considerations presented. Id. 1. Emphasis Added. http://intelligence.senate.gov/090521/prestonpostqfrs.pdf
186 Nominee Preston answered an inquiry as to the responsibility of the CIA General Counsel to secure compliance with laws including the maintenance of full and accurate records:
A. At the most fundamental level, the General Counsel, like every lawyer in the Office of General Counsel, is sworn to uphold and protect the Constitution of the United States. That is an obligation that is not be taken lightly and underlies virtually everything the General Counsel does. Moreover, as I said in my response to prehearing questions, “(p)erhaps the most important, overarching role of the General Counsel is in ensuring the Agency’s compliance with applicable U.S. law in all of its activities” By “the Agency,” I mean to include the people who comprise the Agency. And by “compliance with applicable U.S. law, in all of its activities,” I would include maintaining full and accurate records where the maintenance of records is required by law or otherwise undertaken. Id. 4. Emphasis Added.
Nominee Preston answered a question whether failure to report to Congress the implementation of the NSA warrantless TSP was a violation of the National Security Act:
A. With respect to intelligence activities other than covert activities, under Section 502 of the national Security Act of 1947, the Agency is required to keep the intelligence committees fully and currently informed “(t)o the extent consistent with due regard for the protection from unauthorized disclosure of classified information” that is exceptionally sensitive. The “due regard” clause is a qualification on the obligation, requiring the Agency to inform the committees in a manner consistent with due regard for the protection from unauthorized disclosure of such classified information. Thus the law requires the complete and timely provision of information to the intelligence committees and admits of exception only in extraordinary circumstances. In my view, the norm should be to provide information to the entire membership of the committees. Id. 19. Emphasis Added.
Nominee Preston answered a question as to the authority of the IG to conduct investigations:
A. I believe that the Inspector General should have full independence to conduct investigations of CIA activities within the scope of the Inspector General’s statutory authority. By law, pursuant to Section 20 of the CIA Act of 1949, the General Counsel of the Central Intelligence Agency is the chief legal officer of the Agency. As such, the General Counsel is the final authority for the Agency in matters of law and legal policy, and his legal opinions are controlling within the Agency. Rather than the General Counsel unilaterally declaring lawful activities already under investigation or the Inspector General initiating an investigation of activities previously determined to have been lawful, this strikes me as a prime example of where the two ought to work together to ensure that the considered opinions of the former and the full independence of the latter are both respected. Id. 19-20. Emphasis Added.
187 CIA General Counsel Preston can consult with FBI General Counsel Caproni as to the July 27, 2010 de novo FOIA September 3, 1985 Robert II v CIA and DOJ document with the “FBI Revell” notation. She can review the 1985 FBI’s VP Task Force on Terrorism archived file and the joint-FBI-DOJ-HHS “Fraud Against the Government” investigation of IMC archived file. She can provide CIA General Counsel Preston with a heads up memo whether the 1985 “FBI Revell” log document is a connect-the-dots document to the 1986 “FBI Abshire” documents, the 1987 FBI “Perot” documents, the 1987 FBI “IMC Investigation Final Report” document, and the 1995 FBI Robert III v DOJ “Recarey extradition” documents. §§ Y, II.
CIA General Counsel Preston can consult with Acting NSA General Counsel Vito Potenza and learn whether the Robert NSA transcripts, that are the subject of the July 27, 2010 de novo request for the Robert VII v DOJ “FISC Robert” documents, reveal any evidence that Robert was a 1985 terrorist or an agent of a foreign power, or reveal that information was used for domestic “law enforcement” purposes in violation of the PCA. The NSA transcripts are connect-the-dots to 1985 Robert v Holz documents and September 4, 1985 Ruppert case file notes that reveal whether AAG of the Civil Division Willard made Ruppert decisions. These are important 1985 time line facts because the NSA transcripts reveal whether the 1985 DIA-CIA- FBI counterintelligence “plumber” unit provided Robert information from the NSA TSP, to AAG for the Civil Division Willard who made Ruppert litigation strategy decisions.§§ S, AAA.
CIA General Counsel Preston can read the July 27, 2010 de novo FOIA NARA “Peter Keisler Collection” documents and learn whether in 1986 Associate WH Counsel Keisler knew that the July 25, 1985 House testimony of Acting SSA Commissioner Mc Steen, SSA Chief Counsel Gonya, and DAAG Kuhl was false because HHS General Counsel del Real implemented the “Jackson nonacquiescence policy” in August, 1985. He will learn whether in 1986 Associate WH Counsel Keisler knew that the DIA-CIA-FBI “black operation” at IMC was funded with off-OMB Budget unaudited “Jackson nonacquiescence policy” funds, and not the Department of State Nicaraguan Humanitarian Assistance Office (NHAO) funds. He will learn whether he had known these 1985 facts and decided not to inform President Reagan’s 1986 WH Counsels Fielding and Wallison of these 1985 facts in order to provide President Reagan with a plausible deniability defense to what he knew to be impeachable offenses. §§ Y, Z, BB.
CIA General Counsel Preston can consult with Associate AG-Chief FOIA Officer Perrelli whether the July 27, 2010 de novo FOIA requested “Robert v National Archives ‘Bulky Evidence file” documents contain the “FBI Agent Allison” documents. He was a 1999-2001 DAAG of the Civil Division and one of the supervising attorneys of U.S. Attorney Lynch in Robert v National Archives. He knows whether the “Barrett nonacquiescence policy” was implemented whereby DOJ attorneys withheld material facts from Judge Wexler and the Second Circuit to protect 1999-2000 off-OMB Budget funding sources for the NSA TSP. §§ V, W.
Given the gravity of the appellant’s allegations, CIA General Counsel Preston should consult with AAG of the Criminal Division Lanny A. Breuer whether 2010 violations of § 413 of the National Security Act, the “exclusivity provision” of the FISA, the domestic “law enforcement” military limitations of the PCA, and the Social Security Act, are impeachable offenses. AAG of the Criminal Division Breuer was 1997-1999 Special Counsel for President Clinton. He is an expert on impeachment law and can identify 2010 impeachable offenses. § N.
188 AAG of the Criminal Division Breuer can also advise whether CIA officials have had the Article II Unitary Executive authority to purge documents that reveal CIA’s participation in the 1984-2010 DIA-CIA-FBI counterintelligence “plumber” operation to cover up the NSA TSP violations when military officers have used information from the “do not exist” 1984- 2001 data banks. This is a critical fact if CIA officials purged documents that reveal whether CIA agents participated in the DIA-CIA-FBI counterintelligence “plumber” unit that provided information to HHS General Counsel del Real, as a covered agent, for use in his 1985 “Fraud Against the Government” investigation of Robert seeking Robert’s disbarment. Putative plaintiff Robert will be citing to the Robert II v CIA and DOJ documents, case file notes and e-mail in his putative “Bivens” First Amendment right of access to the Courts action to carry his heavy evidentiary burden as explained in Christopher v. Harbury, 121 S. Ct. 2171 (2001). § AAA.
If during the pending Robert II v CIA and DOJ FOIA seeking the “North Notebook” documents there was destruction of the documents to protect the off-OMB Budget funding source for the “black operation” at IMC, then CIA Director Panetta will decide whether he will “take the heat” for the agency. CIA Director Porter Goss decided to “take the heat” for the agency for the destruction of tapes that revealed CIA implementing the enhanced interrogations:
Shortly after the tapes were destroyed at the order of Jose A. Rodriguez Jr., then the head of the C.I.A.’s clandestine service, Mr. Goss told Mr. Rodriguez that he “agreed” with the decision, according to the document. He even joked after Mr. Rodriguez offered to “take the heat” for destroying the tapes.
“PG laughed and said that actually, it would be he, PG, who would take the heat,” according to one document, an internal C.I.A. e-mail message. Mazzetti, C.I.A. Document Details Destruction of Tapes, NY Times, 4-16-10.
Given the gravity of the appellant’s allegations, CIA General Counsel Preston should also consult with 1995-1996 CIA General Counsel Jeffrey Smith. He currently serves on CIA Director Leon Panetta’s External Advisory Board and was Senator Sam Nunn’s designee to the Senate Select Committee on Intelligence and the Iran/Contra Committee. He knows whether a CIA “black operation” was conducted at IMC and whether this information was withheld from the joint Senate-House Iran/Contra Committee and the 1987-1988 House Subcommittee that investigated IMC. He also knows whether 1995-1996 off-OMB Budget funds were used to fund 1995-1996 “black operations” including the “do not exist” NSA TSP data banks. He also knows whether 1994-1997 WH Chief of Staff Panetta knew of the existence of the “do not exist” NSA TSP data banks that were subject to AAG of the OLC Dellinger’s April 5, 1994 OLC PCA Memorandum for Jo Ann Harris Assistant Attorney General Criminal Division Re: Use of Military Personnel for Monitoring Electronic Surveillance and his February 14, 1995 FISA Memorandum for Michael Vatis Deputy Director Executive Office for National Security Re: Standards for Searches Under Foreign Intelligence Surveillance Act. §§ K, O, V, W, Y, Z, CC.
As a member of the External Advisory Board, former-CIA General Counsel Smith can advise CIA Director Panetta the 2010 impact of acquiescing to the Second Circuit’s June 9, 2010 Dinler v City of New York holding that there is to be Article III in camera review of classified documents. Judge Seybert will apply this standard in Robert II v CIA and DOJ. § XX.
189 Upon information and belief, External Advisory Board Member Smith will advise CIA Director Panetta that the Dinler decision and 25 year automatic declassification rule will result in Article III Judges reading in camera documents that reveal that HHS General Counsel del Real was a DIA-CIA covered agent when he rendered his 1982 and 1985 “Jackson nonacquiescence policy” decisions. The Article III Judges will apply AG Holder’s March 19, 2009 presumption of disclosure standard with the knowledge that the simple fact that HHS General Counsel del Real was a covered agent triggers the 1986 Bowen v City of New York “clandestine” policy equitable tolling standard as applied to millions of 1994-2010 Ford v Shalala class members. Upon information and belief, because he knows that CIA Director Panetta possesses the Chilicky “normal sensibilities” of human beings, he will recommend the release of the four CIA documents subject to a 2010 appeal to the Article II ISCAP. §§ A, H, L, M, N, P, Q, T, YY.
Upon information and belief, External Advisory Board Member Smith will advise CIA Director Panetta that ISSO Director Bosanko is the ISCAP Executive Secretary who marshals the documents for the ISCAP Members to consider. ISSO Director Bosanko will have access to the July 27, 2010 de novo FOIA requested NARA “Peter Keisler Collection”, NARA “Perot”, and NARA “Robert v National Archives ‘Bulky Evidence file’” documents. He will know that those documents are at issue in the Robert VII v DOJ, HHS, and SSA appeal and the Second Circuit may decide to remand that appeal to Judge Garaufis to apply Dinler standards. § BB.
Because of Dinler, CIA General Counsel Preston has his own duty to provide a heads up memo to CIA Director Panetta, his client, as to whether the Robert II v CIA and DOJ case file notes and e-mails of Acting CIA General Counsel Rizzo reveal that he had implemented the “Barrett nonacquiescence policy” and had withheld material facts from Judge Seybert in “c (3) exclusion” ex parte Declarations filed by then-U.S. Attorney Mauskopf. If so, then he should advise CIA Director Panetta whether the Robert II v CIA and DOJ ex parte Declarations contain misrepresentations of fact and law. If so, then both co-defendants, CIA Director Panetta and AG Holder, should know whether EDNY US. Attorney Lynch will fulfill her April 1, 2009 NYS Rules of Professional Conduct Rule 3.3(a)(3) duty to cure misrepresentations of fact and law made to Judge Seybert. “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.” §§ D-H, XX.
On August 18, 2010, the appellant will request that AAG of the Civil Division West read the Robert II v CIA and DOJ case file notes and e-mails when he reviews the appellant’s Robert VIII v DOJ, HHS, and SSA offer of a quiet settlement. The appellant will suggest that Robert II v CIA and DOJ be included in the quiet settlement negotiations if Acting CIA General Counsel Rizzo’s case file notes and e-mails reveal he implemented the “Barrett nonacquiescence policy” with the intent to deceive both Judge Seybert and party plaintiff Robert. §§ F, G, AAA.
Hence, the importance of U. S. Attorney Lynch reading the Robert II v CIA and DOJ case file notes, e-mails and the USG ex parte Declarations. She will learn whether these documents reveal 1985 violations of the National Security Act, FISA, PCA and Social Security Act. She will learn whether Acting CIA General Counsel Rizzo had implemented the “Barrett nonacquiescence policy” and withheld material facts from Judge Seybert. She will also learn whether the same 1985 violations of federal laws are occurring in 2010. §§ A, J, M, N, O, XX.
190 BB. NARA General Counsel Stern’s duty to read the de novo FOIA requested NARA “Peter Keisler Collection”, NARA “Perot”, and NARA “Robert National Archives ‘Bulky evidence file’” documents that will be subject to 2010 NARA OGIS mediation services
Based on President Obama’s E.O. 13,256, NARA General Counsel Stern has a duty to read the July 27, 2010 FOIA requested NARA “Peter Keisler Collection”, NARA “Perot”, and “Robert National Archives ‘Bulky evidence file’” documents. If the NARA FOIA Officer denies the requests after applying AG Holder’s March 19, 2009 FOIA Guidelines, then the appellant will request the Article II NARA Office of Government Information Services (OGIS) mediation services. These documents had been unsuccessfully sought in the plaintiff’s September 3, 2008 Robert v DOJ and SSA Motion seeking a pre-clearance Order to file a putative FOIA complaint. Therefore, if the Robert VIII v DOJ, HHS, and SSA appeal is reinstated, then these documents will be subject to the Second Circuit’s Dinler in camera review standard. §§ V, XX.
The NARA NARA “Peter Keisler Collection” documents reveal whether in 1986 Assistant WH Counsel Keisler knew that a DIA-CIA-FBI “black operation” was being conducted at IMC funded with HHS funds in violation of the Boland Amendment. These are 1986 Past is Prologue connect-the-dots documents to the 1986 “FBI Abshire” documents which reveal whether pursuant to the extreme Unitary Executive theory, attorney-patriots had lied-by- omission to President Reagan to provide him with a plausible deniability defense to the serial violations of federal laws that the attorney-patriots knew were impeachable offenses. These are also connect-the-dots documents to the 1982-2008 “OMB Jackson” documents that establish the 2007 mens rea of AAG of the Civil Division Keisler when he approved the 2007 Ford “remedy” which he knew would not cure the due process violations. §§ C, D, P, Y, U, Z.
The NARA “Perot” documents reveal the 1987 knowledge of AG Meese and FBI Director Judge Webster after they had read the “Perot” documents that President Reagan presented them on February 27, 1987. The NARA “Perot” documents case file notes reveal the name of the representative of the Estate of President Reagan who determined that NARA should not docket the FOIA request for these documents. The NARA 2010 FOIA decision will reveal whether NARA Archivist David Ferriero complies with President Obama’s January 21, 2009 Presidential Records E.O. 13489 which rescinded President Bush’s November 1, 2001 E.O. 13233 governing the assertion of executive privilege by incumbent and former Presidents. WH Counsel Bauer and AAG of the OLP Schroeder will have advised President Obama whether in 2010 he should use the executive privilege defense to withhold the 1987 “Perot” documents.§ Y.
The NARA “Robert v National Archive ‘Bulky Evidence File” documents, case file notes, and e-mails reveal the names of government officials and attorneys who knew the content of the “FBI Agent Allison” documents and whether FBI Agent Allison ever informed FBI Director Judge Sessions of the violations of federal laws as revealed in the “Bulky Evidence File” documents. These are Past is Prologue documents because U.S. Attorney Lynch will learn from reading the case file notes and e-mails why in 1991-2001 she did not know the content of the “FBI Agent Allison” documents when she was the EDNY U.S. Attorney supervising AUSA Mahoney in Robert v National Archives. She will learn whether her 1999- 2001 supervising attorneys, AAG of the Civil Division Ogden and Associate AG Daniel Marcus, had intentionally withheld material facts from U.S. Attorney Lynch. §§ D-H, V, W.
191 NARA General Counsel Gary Stern, the 1998-2010 NARA General Counsel, was the NARA General Counsel in Robert v National Archives. He prepared the NARA Declaration that was relied upon by the Judge Wexler an the Second Circuit when the case was dismissed. Upon information and belief, he knows knows whether the “FBI Agent Allison” documents had been transferred from NARA to the CIA to circumvent compliance with the Robert’s initial FOIA request for the “FBI Agent Allison” documetns. “Robert presented no evidence whatsoever to support these allegations and therefore they have no bearing on this litigation.” Id. 88-89. § V.
Upon information and belief, NARA General Cuonsel Stern advised NARA Deputy Archivist Thomas to withhold the “Robert v National Archives ‘Bulky Evidence File” documents in her August, 2008 FOIA decisions. Those decisions were subject to the Robert’s September 3, 2008 Motion for a pre-clearance order to file a putative FOIA complaint that was denied. He knows that if Robert VIII v DOJ, HHS, and SSA appeal is reinstated, then AG Holder will be defending the withholding of the “FBI Agent Allison” documents. §§ E-H, V, Y, AAA.
The purpose of the July 27, 2010 de novo NARA FOIA requests is to utilize the NARA Office of Government Information Services (OGIS) established in the OPEN Government Act of 2007. A NARA mediator can quickly gain access to the documents. A NARA mediator who reads these three sets of NARA documents can utilize his/her mediation talents to fashion a 2010 settlement of this FOIA action that can dovetail with the Robert VIII v DOJ, HHS, and SSA offer of a quiet settlement. NARA Counsel Stern knows that if the OGIS mediation is not successful, then there will be Dinler Article III in camera review of the same documents. § XX.
In particular, a NARA mediator reading the NARA “Perot” documents should lead to a 2010 settlement. President Obama’s January 21, 2009 Presidential Records E.O. 13489 establishes a process that will result in President Obama making the final decision as to the release of these documents. President Obama can learn from these documents the “collateral damage” caused by the daisy-chain of shadow government patriots who implemented their Unitary Executive theory and made Top Secret decisions without the knowledge of President Reagan. Then President Obama will make sure that his E.O. 13,256 § 1.5 declassification and §1.7 misclassification procedures include checks and balances of “appropriate authorities” who make “Glomar Response” decisions without the President’s knowledge of those decisions. § N.
NARA General Counsel Stern will learn from reading the NARA “Peter Keisler Collection” documents that these are connect-the-dots documents to the “mosaic” of documents being requested in the July 27, 2010 DOJ, FBI, OMB, CIA, DOD, DNI, HHS, and SSA FOIA requests. He will learn whether the appellant’s almost incredible allegation is true that 1986- 1988 Assistant-Associate WH Counsel Keisler, as a patriot, had lied-by-omission to President Reagan in order to provide President Reagan with a plausible deniability defense to the violation of federal laws that were impeachable offenses. He will learn whether there has been a 1982-2010 practice of USG attorney-patriots lying-by-omission to WH Counsels Fielding (1981-1986), Wallison (1986-1987), Culvahouse (1987-1989), Gray (1989-1993), Nussbaum (1993-1994), Cutler (1994), Mikva (1995-1995), Quinn (1995-1996), Davis (1996-1998), Ruff (1998-1999), Nolan (1999-2001), Judge Gonzales (2001-2005), Miers (2005-2007), Fielding (2007-2008), Craig (2009) and Bauer (2010), to protect off-OMB Budget funding sources which have violated laws without the knowledge of WH Counsels or their Presidents. §§ A, C, YY.
192 NARA General Counsel Stern will learn from reading “Robert v National Archives ‘Bulky Evidence File’” documents along with the Robert v National Archives case file notes and e-mails of 1999-2001 DOJ attorneys, whether DOJ attorneys had implemented the “Barrett nonacquiescence policy” for the purpose of deceiving Judge Wexler, the Second Circuit, and plaintiff Robert. If so, then he has a duty to inform AG Holder the content of the “Bulky Evidence File” connect-the-dots documents which were subject of the appellant’s September 3, 2008 Motion for a pre-clearance order. These are document content facts that AG Holder should know when he considers the Robert VIII v DOJ, HHS, and SSA quiet settlement offer. § AAA.
Hence, the importance of U.S. Attorney Lynch also reading these NARA documents to learn whether U.S. Attorney Lynch unwittingly implemented the “Barrett nonacquiescence policy” and withheld material facts from Judge Wexler and the Second Circuit in Robert v National Archives. The 1999-2001 mens rea of AUSA Mahoney and U.S. Attorney Lynch is revealed in the Robert v National Archives case file notes and e-mail. Their 1999-2001 mens rea has 2010 importance because of the FRCP 11 signed pleadings. If the appeal is reinstated on September 3, 2010, then the April 1, 2009 NYS Professional Model Rules Rule 3.3 and FRCP 11 will apply to the USG’s Robert VIII v DOJ, HHS, and SSA Second Circuit Brief. §§ E-H.
U. S. Attorney Lynch knows she has an appearance of a conflict of interest in Robert VIII v DOJ, HHS, and SSA because those case file notes and e-mails reveal facts that AAG of the Civil Division Keisler and U.S. Attorney Mauskfopf had withheld from Judge Garaufis in AG Gonzales’ 2005 Motion for the Robert injunction. The conflict of interest becomes a “real time” conflict of interest if U.S. Attorney Lynch learns in 2010 that the “FBI Agent Allison” documents had in fact been transferred from NARA to the CIA for the purpose of deceiving Judge Wexler and the Second Circuit as Robert had argued to the Second Circuit in Robert v National Archives. If U.S. Attorney Lynch learns that fact, then she has a Rule § 3.3 duty to cure misrepresentations of fact made to Judge Wexler, Judge Garufis and the Second Circuit. § E.
Given the appearance of a conflict of interest because of her Robert v National Archives, U.S. Attorney Lynch should be consulting with EOUSA Director Jarrett, the 1998-2008 OPR Director, AAG of the OLP Schroeder, NARA General Counsel Stern, and DOJ Chief FOIA Officer-Associate WH Counsel Perrell. They can advise U.S. Attorney Lynch whether there is a collective USG attroneys Rule 3.3 duty to cure the misrepresentations of fact and law. §§ E-H.
As per the July 27, 2010 letter to AAG of the OLP Schroeder, the appellant has requested that he read the three sets of Past is Prologue NARA documents to test 2010 Article II review procedure to determine whether the “appropriate authorities” will make the decision that the OGIS medication process and E.O. 13256 1.5 declassification and 1.7 misclassifications requests, do not apply to “do not exist” documents that they have determined to be “Glomar Response” documents. He will learn the name of the command and control officer of the “appropriate authorities” who knows that the NARA documents reveal violations of federal laws. He will learn whether this command and control officer has lied-by-omission to President Obama to provide President Obama with a plausible deniability to military officers using “do not exist” NSA TSP information in violation of the “exclusivity provision” of the FISA, PCA limitation on military domestic law enforcement actions, § 413(b) of the National Security Act, and Social Security Act, no differently than 1980s attorneys who lied to President Reagan. § N.
193 Upon information and belief, AAG of the OLP Schroeder will learn from reading the NARA “Peter Keisler Collection” and “Perot” documents whether Associate WH Counsel Keisler had lied-by-omission to President Reagan’s WH Counsels Fielding (1981-1986), Wallison (1986-1987), Culvahouse (1987-1989), in order to provide them with a plausibility defense to the violation of federal laws that he knew were impeachable offenses. Then he will apprehend the 1984-2010 “collateral damage” that resulted from protecting the Top Secret existence of the “do not exist” 1984-2001 NSA TSP data banks by reading the 2007 Ford “remedy” plan of AAG of the Civil Division Keisler which did not end SSA Commissioner Astrue’s “rigging” of the 2007-2010 SSA computer to apply the 1982 “Jackson nonacquiescence policy” standard which he knows is contrary to his own January 24, 2007 Senate testimony. Then he will fulfill his OLP mission and advise AG Holder that these NARA documents provide a real time reason why the “appropriate authorities” should not be making the decisions that ISCAP does not have jurisdiction to review “Glomar Response” decisions. §§ C, M, N.
Upon information and belief, AAG of the OLP Schroeder will learn from reading the NARA “Robert National Archives ‘Bulky evidence file’” documents along with the 1998-2001 Robert v National Archives case file notes and e-mail, whether Associate AG Marcus knew that the “FBI Agent Allison” documents contained “smoking gun” evidence that material evidence had been withheld from the Tower Commission, the joint Senate-House Iran-Contras Committee, and IC Walsh in order to protect the Top Secret fact that the unaudited HHS “Jackson nonacquiescence policy” funds were an off-OMB Budget income stream to pay for illegal “black operations” at IMC and the 1984-2000 NSA TSP data banks. Associate AG Marcus had been the 1998 Senior White House Counsel. This is an important 2000 time line fact because 2002-2004 9/11 Commission General Counsel Marcus knew whether 9/11 Commission Member Jamie Gorelick, the 1993-1994 DOD General Counsel and the 1994-1997 DAG who created the “wall” in 1995, knew the “do not exist” 1984-2001 NSA TSP data banks morphed into the 2002-2004 “immaculate construction” NSA PSP data banks. §§ K, L, O, CC.
In the other July 27, 2010 FOIA requests, the appellant is seeking the release of a mosaic of documents to prove to AG Holder the Past is Prologue serial violations of law. Chief FOIA Officer Perrelli can discuss the release of documents that reveal violations of laws with the other Chief FOIA Officers: DOD Acting Director, Administration and Management Rhodes, CIA Chief Information Officer Tarasiuk, DNI Acting Deputy Director for Administration Baer, OMB Associate Deputy Director for Administration Shea, HHS Acting Assistant Secretary for Public Affairs Hall, and SSA General Counsel Black. U.S. Attorney Lynch and NARA General Counsel Stern should know if those documents reveal impeachable law violations. § YY.
Therefore, U.S. Attorney Lynch should be reading these three sets of July 27, 2010 de novo FOIA requested NARA documents because they reveal the “collateral damage” that results from a daisy-chain of shadow government patriots making Top Secret decisions on behalf of their Presidents that they know are impeachable offenses. She should inform AG Holder of these facts in her settlement memo whether to accept the quiet settlement offer. AG Holder should know these Past is Prologue facts when he recommends needed checks and balances to ensure that the shadow government attorneys cure their mistakes rather than hunker down and make 2010 misclassification decisions for the purpose of covering up their own participation in the violation of laws that is revealed in the three sets of NARA withheld documents. §§ AAA.
194 CC. DOD General Counsel Johnson’s duty to read the FOIA requested DOD “NSA TSP and PSP data banks access guidelines” to determine whether there continue to be violations of the FISA “exclusivity provision” and the PCA military “law enforcement” restrictions as revealed by the application of AAG of the OLC Dellinger’s 1994 PCA and 1995 FISA OLC standards to the de novo FOIA requested Robert VII v DOJ “FISC Robert” documents
Based on E.O. 13,256, DOD General Counsel Johnson has a duty to read the FOIA requested “NSA TSP and PSP data banks access guidelines” to determine whether there are 2010 violations of the FISA “exclusivity provision” and the PCA military “law enforcement” restrictions. The appellant seeks the release of these NSA Guidelines to apply to the de novo FOIA requested Robert VII v DOJ “FISC Robert” documents along with AAG of the OLC Dellinger’s 1994 PCA and 1995 FISA OLC standards, to determine whether 2010 DOJ attorneys know that Robert’s First Amendment right of access to the Courts were violated when his FOIA documents were misclassified to cover up violations of the PCA and FISA. § AAA.
DOD General Counsel Johnson has the duty to provide DOD Secretary Gates with the legal advice regarding the DOD Cyber Command’s use of information contained in the “do not exist” 1984-2010 NSA TSP and PSP data banks. The “NSA TSP and PSP data banks access guidelines” have become more important because there is no “wall” between the use of the information harvested from those data banks for counterintelligence and for law enforcement purposes DOD Secretary Gates learned that fact when in 2007 he and Under Secretary of Intelligence Clapper dismantled DOD Secretary Rumsfeld’s TALON program. § DD.
The need for effective checks and balances as to the use of the information that can be accessed from the DOD Cyber Command data banks has become a July, 2010 public issue because of the public’s new knowledge of the extent of the “Top Secret America” as mapped out by Priest and Arkin in their Washington Post July 19-21, 2010 series: Top Secret America: A hidden world, growing beyond control, Top Secret America: National Security Inc, and Top Secret America: The Secrets Next Door. Therefore, DOD General Counsel Johnson should have a lessons learned knowledge of how the DIA-CIA-FBI counterintelligence “plumber” unit used Robert information from the NSA TSP for domestic law enforcement purposes. § M.
In his Senate Armed Services Committee Nominee questionnaire, DOD General Counsel Nominee Johnson he was asked about the process by which he would review the legal opinions of the prior DOD General Counsels:
What role do you expect to play, if confirmed, in the development and consideration (or reconsideration) of legal opinions by the Office of Legal Counsel (OLC) of the Department of Justice that directly affect the Department of Defense?
If confirmed, I expect to work with the Office of legal Counsel in the development, consideration and reconsideration of OLC legal opinions, while recognizing that the ultimate responsibility for the development of those opinions resides with the Department of Justice.
195 What actions would you take in response to an opinion issued by OLC with which you disagreed as a matter of proper interpretation of the law?
If OLC issued an opinion with which I materially disagreed, I would not hesitate to inform OLC of the extend and nature of the disagreement, mindful, again, that the Attorney General is the chief legal officer of the United States and that his or her legal opinions are controlling throughout the Executive Branch.
The appellant is seeking the release of the NSA Guidelines to compare to the FOIA released 1994 and 1995 OLC opinions of AAG of the OLC Dellinger establishing PCA and FISA standards for the NSA TSP. On August 31, 2009 DOJ FOIA Officer Kovakas applied AG Holder’s March 19, 2009 Guidelines and released these heretofore unpublished OLC opinions. These two OLC opinions were the legal superstructure of the 1995 “wall” that DAG Gorelick had established after being the 1993-1994 DOD General Counsel. She had succeeded 1992-1993 DOD General Counsel Addington who had determined as 1981-1984 CIA Assistant General Counsel, that pursuant to the Unitary Executive theory the “exclusivity provision” of the FISA was an “unconstitutional” encroachment on the President’s Commander-in-Chief duties. AAG of the OLC Dellinger’s April 5, 1994, Use of Military Personnel for Monitoring Electronic Surveillance Memorandum for Jo Ann Harris Assistant Attorney General Criminal Division, established a “passive-active participation” test that limited the military participation in domestic “law enforcement” to monitoring electronic surveillance:
“We conclude that military personnel are presently authorized to perform such monitoring operations under a proper reading of the pertinent statutes. Although clarifying legislation on this issue could be considered desirable in the sense that it always is when a statute’s interpretation is not entirely free from doubt, we do not believe that such legislation is necessary in this instance.” Id. Emphasis Added.
AAG of the OLC Dellinger interpreted the PCA and concluded that mere monitoring of electronic surveillance did not cross the PCA “active-passive line” that limited the military from active participation in the domestic “law enforcement” procedures of the FBI and the DOJ:
As reflected in these cases, the courts have employed three slightly varying formulations of the test for determining whether military involvement in civilian law enforcement has crossed the line separating proper activity from violations of the PCA. (1) whether the activities constituted the exercise of regulatory, proscriptive, or compulsory military power; (2) whether they amounted to direct, active involvement in the execution of the laws; or (3) whether they pervaded the activities of civilian authorities. See United States v Yunis, 924 F. 2d at 1094. Mere assistance by military personnel in the monitoring of court-authorized electronic surveillance by civilian authorities does not violate any of those standards. It is neither regulatory nor prospective, nor is it a compulsory application of military power: it does
196 not constitute “execution of laws” at all, let alone “active” or “direct” execution; and it clearly does not “pervade” the activities of civilian authorities. Compare United States v Bacon, 851 F. 2d at 1314 (“In this case the limited military participation was nothing more than a case of assistance to civilian law enforcement efforts by military personnel and resources. This does not violate the statutory prohibition of the Posse Comitatus Act.”). Id. 11. Emphasis Added.
AAG of the OLC Dellinger’s February 14, 1995 Standards for Searches Under Foreign Intelligence Surveillance Act Memorandum for Michael Vatis Deputy Director Executive Office for National Security, established a “primary purpose” test for use of FISA warrants which, unlike traditional search warrants in ordinary criminal cases, was not based on the same probable cause” standard used for a Title III warrant that targets a U.S. citizen: “You have asked for our opinion whether a search under the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1800-1811 (“FISA”), may be approved only when the collection of foreign intelligence is the “primary purpose” of the search or whether it suffices that the collection of foreign intelligence is one of the purposes.” Id. 1. http://www.snowflake5391.net/OLC%202-14-95.pdf.
AAG of the OLC Dellinger’s opinion was based on the Second Circuit’s 1984 United States v Duggan standard that required a “primary purpose” certification of a designated official:
“Even after FISA, however, most courts have adhered to the “primary purpose” standard, either because they have read FISA as incorporating that standard or because they have considered the standard constitutionally required. In United States v Duggan, 743 F. 2d 59 (2d Cir. 1984) for example, the Second Circuit held that FISA enacted the “primary purpose” test:
FISA permits federal officials to obtain orders authorizing electronics (sic) surveillance “for the purpose of obtaining foreign intelligence information.” 50 U.S.C. § 1802(b). The requirement that foreign intelligence information be the primary objective of the surveillance is plain not only from the language of § 1802(b) but also from the requirements as to § 1804 as to what the information must contain. The application must contain a certification by a designated official of the executive branch that the purpose of the surveillance is to acquire foreign intelligence information…..” Id. 3. Emphasis Added.
DOD General Counsel Johnson knows whether AAG of the OLC Dellinger’s 1994 and 1995 OLC opinions have been rescinded and replaced by classified post-9/11 OLC opinions. If replaced, then the DOD FOIA Officer may deny the FOIA request with a “Glomar Response” decision that neither admits or denies the existence of 2010 NSA TSP access Guidelines. § L.
197 When DOD Secretary Gates and Under Secretary of Intelligence Clapper determined that the DOD TALON program should be dismantled, they concluded that DOD military officers had crossed the PCA “active-passive line” that was to prevent DOD domestice military law enforcement activities that violated the PCA. The TALON program had been established pursuant to the April 25, 1988 DOD Directive, DoD Intelligence Activities, which had canceled the November 3, 1982 DOD 5240.1-R Directive Activities of DoD Intelligence Components that Affect United States Persons. http://www.au.af.mil/au/awc/awcgate/dod/d52401p.htm.
The 1980s NSA TSP electronic surveillance of Robert revealed in the Robert VII v DOJ “FISC Robert” documents, was based on the legal authority of the November 3, 1982 DOD 5240.1-R. Robert seeks the release of DOD FOIA requested “NSA TSP and PSP data banks access guidelines” to retroactively apply those standards to the “FISC Robert” documents to determine if the 2010 NSA Guidelines would have prevented the 1980s violation of the PCA and the FISA when AAG of the OLC Dellinger’s 1994 PCA and 1995 FISA OLC standards are applied. If not, then DOD Secretary Gates should know this fact and amend appropriately the “NSA TSP and PSP data banks access guidelines” of 2010. This is especially the case if Robert’s FOIA request is denied and a 2010 “Glomar Response” defense is used. §§ L, M, N.
If there are no 2010 “NSA TSP and PSP data banks access guidelines”, then the Robert VII v DOJ “FISC Robert” and sealed Robert v Holz documents become more important. Those documents reveal facts that can be the basis for DOD Secretary Gates instructing DOD General Counsel Johnson to develop 2010 guidelines. DOD General Johnson will appreciate the collateral damage revealed in the sealed Robert v Holz documents because he was a 1989-1991 AUSA SDNY when 1989-1993 SDNY U.S. Attorney Otto Obermaier was implementing the “Thornburgh-Giuliani” policy not to defend 1989-1993 HHS General Counsel Astrue’s Jackson and Ruppert “nonacquiecence” policies, when 1986-1992 EDNY U.S. Attorney Andrew Maloney defended the Jackson and Ruppert “nonacquiescence” policies. §§ K, P, Q, R, S, T, Z.
Because of DOD Secretary Gates duty to information-share with FBI Director Mueller, CIA Director Panetta, and the new DNI Director, these DOD Guidelines should interface with the December, 2008 AG Guidelines for Domestic FBI Operations. These DOD Guidelines should be providing checks and balances to prevent 2010 violations of the PCA and the FISA because the “do not exist” 1984-2010 NSA TSP and PSP data banks are now in the custody of the DOD Cyber Command. The 2010 FBI counterintelligence “plumber” unit has access to the NSA TSP information when they enforce the nondisclosure agreements that prevent 2010 USG “whistleblowers” from revealing to Congress the 1985 Past is Prologue 2010 violation of the Social Security Act by the 2010 diversion of off-OMB Budget “Jackson nonacquiescence policy” funds to pay for the “do not exist” 1984-2010 data banks not funded with the classified OMB Budget funds and without the knowledge of the “Gang of Eight.” §§ K, M, N, O, T, U, Z.
Hence, the importance of the July 27, 2010 FOIA request for the “NSA TSP and PSP data banks access guidelines” to make sure they dovetail with the FBI AG Guidelines for Domestic FBI Operations. Although the TALON program was dismantled in 2007, the 1984- 2010 NSA TSP and PSP banks continue to exist and are accessed by the DOD Cyber Command military officers. If the “Glomar Response” defense is used, then the ISCAP review process will be triggered. This will provide an Article II review process of the NSA access standards. § L.
198 As explained in the July 27, 2010 letter to AAG of the OLP Schroeder, the Congress, the public, and terrorists all know of the existence of the 2002-2010 warrantless NSA PSP because President Bush in December, 2005 revealed the existence of that secret warrantless NSA program. However, the public has not been informed of the “do not exist” 1984-2001 pre-9-11 NSA TSP data banks. The existence of the FOIA requested NSA Guidelines is ripe because the violation of the appellant’s First Amendment right of access to the Courts continues as long as there are no public NSA Guidelines that limit NSA military officers from going “back in time” and electronically harvesting the information sought in the 1980s, but with more powerful 2010 NSA algorithms. Public NSA Guidelines should be be an Article II checks and balance because there has been no 2010 Congressional Oversight or Judicial review. §§ K, DD.
The April 7, 2010 DOD Open Government Plan stated the DOD’s “Principles of Information” management to balance national security and the public knowledge factors:
It is Department of Defense policy to make available timely and accurate information so that the public, the Congress, and the news media may assess and understand the facts about national security and defense strategy. Requests for information from organizations and private citizens shall be answered quickly…. Information shall be made fully and readily available, consistent with statutory requirements, unless its release is precluded by national security constraints or valid statutory mandates or exceptions. Id. 2. Emphasis Added. http://open.dodlive.mil/files/2010/04/DoD-Open-Gov-Plan-v1.0-2010-04-07.pdf
DOD Secretary Gates’ Open Government Plan proudly noted the value of the 40 years evolution of the DOD data banks development by the DARPA program which was the precursor to the internet. “Over 40 years ago, the precursor to today’s Internet was developed at what is now known as the Defense Advanced Research Projects Agency (DARPA).” Id. 3.
In its The Path Forward, DOD Secretary Gates highlighted the work in progress nature of the Open Government Plan to maximum transparency and protect the national security:
In the coming months, we will continue to bring tighter key officials from across the Department to formalize a governance structure and create detailed procedures for an increased culture of transparency while protecting national security. We are also committed to regularly evaluating our progress and making adjustments mid-course. Id. 34.Emphasis Added.
In 2007 Under Secretary of Intelligence Lt. General Clapper succeeded 2003-2007 Undersecretary of Defense for Intelligence Stephen Cambone, who had inherited the Total Information Awareness Program (TIP) that had been developed by Ret. Admiral John Poindexter within the DOD Defense Advanced Research Projects Agency (DARPA). Upon information and belief, Admiral Poindexter had been placed in charge of this Top Secret program because he knew the capabilities of the 1984-2001 “do not exist” NSA TSP data banks that were accessed by the 1980s DIA-CIA-FBI counterintelligence “plumber” unit that used NSA TSP information to prevent “leaks” that would place at risk 1980s Iran-Contras sources and methods. §§ K, Y, Z.
199 In February, 2003, DOD Secretary Rumsfeld had established a Technology and Privacy Advisory Committee (TAPAC) to examine the use of “advanced information technologies to identify terrorists before they act.” Report of the Technology and Privacy Advisory Committee (TAPAC): Safeguarding Privacy in the Fight Against Terrorism. The Report was in part in response to Ret. Admiral John Poindexter’s development of the TIA program within DARPA. “On September 25, 2003 Congress terminated funding for the program with the exception of “processing, analysis, and collaboration tools for counter-terrorism foreign intelligence,” specified in a classified annex to the Act.” TAPAC Report, p. viii. Emphasis Added.
In September, 2003 Congress ended the funding of the DARPA Information Awareness Office for developing the programs to use information in the DOD data banks that had been funded from the classified OMB Budget. “House and Senate negotiators have decided to close a Pentagon office that was developing a vast computerized terrorism surveillance system and bar spending that would allow those high-tech spying tools to be used against Americans on U.S. soil.”AP. Pentagon Spy Office to Close. 9-25-03. Emphasis added.
The Congress made clear that classified OMB Budget funds should not be used to fund DOD programs that develop algorithms that access NSA data banks as high-tech spying on U.S. citizens. The appellant’s putative “Bivens” complaint is grounded in the facts of the Robert VII v DOJ “FISC Robert” classified documents that reveal whether AG Meese and FBI Director Judge Webster had withheld from the FISC the existence the “do not exist” warrantless NSA TSP program that provided information to the DIA-CIA-FBI counterintelligence “plumber” unit which provided information to HHS General Counsel del Real for the use in Robert domestic law enforcement investigation in violation of Duggan “primary purpose” certifications. § AAA.
In its March, 2004 Report, TAPAC catalogued programs other than the DOD DARPA TIP that used data mining techniques: TIA was not unique in its potential for data mining.” TAPAC is aware of many other programs both within the DOD and elsewhere in the government that made similar uses of personal information concerning U.S. persons to detect and deter terrorist activities, including: (list of programs). Id. viii. Emphasis added. http://www.cdt.org/security/usapatriot/20040300tapac.pdf. On May 21, 2004, after the TAPAC report, Deputy Secretary of Defense Paul Wolkowitz issued DOD Directive 5148.11 and established the oversight responsibilities and functions of the Assistant to the Secretary of Defense for Intelligence Oversight (ATSD(IO)). “6.6 Have complete and unrestricted access to all available intelligence information, regardless of classification or compartmentation, including Special Access Programs, from all DoD components and personnel, as required, in carrying out assigned responsibilities and functions.” Id. 5. Emphasis. http://www.dtic.mil/whs/directives/corres/pdf/514811p.pdf
Undersecretary of Defense for Intelligence Stephen Cambone based the TALON program on DOD Directive 5148.11. Therefore, the 2010 DOD “NSA TSP and PSP data banks access guidelines” should have checks and balances on the access to the “do not exist” 1984- 2010 NSA TSP and PSP data banks to prevent the abuses revealed in the TALON Program that could be reconstituted as part of the “Top Secret America” as per the Washington Post report.
200 As per DOD Secretary Gates August 21, 2007 DOD Press Release, DoD to Implement Interim Threat Reporting Procedures, the TALON data base was “dismantled” but the intact data banks were forwarded to the FBI’s Guardian reporting system:
DoD’s Counterintelligence Field Activity (CIFA) will close the TALON Reporting System effective Sept. 17, 2007, and maintain a record copy of the collected data in accordance with intelligence oversight requirements.
To ensure there is a mechanism in place to document and assess potential threats to DoD resources, the Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs will propose a system to streamline such threat reporting and better meet the Defense department’s needs.
In the interim, until this new reporting program is adopted, DoD components will send information concerning force protection threats to the Federal Bureau of Investigation’s Guardian reporting system. Emphasis Added. http://www.defenselink.mil/releases/release.aspx?releaseid=11251.
In 2008, AG Judge Mukasey knew the contents of the TALON data banks had been included in the FBI’s Guardian reporting system. The FBI’s 2008 AG Guidelines for Domestic FBI Operations were drafted with the knowledge of the content of the data banks that had been accessed by the “dismantled” TALON program. Those NSA TSP data banks are now under the “command and control” of DOD Cyber Command Commander Lt. General Alexander, the 2005-2010 NSA Director. He knows the abuses that occurred during the TALON program and knows the need for DOD “NSA TSP and PSP data banks access guidelines” that are constructed to prevent the TALON abuses that occurred when he was the 2005-2007 NSA Director. § K.
As the 2005 NSA Director, DOD Cyber Command Commander Lt. General Alexander knew whether President Bush had complied with 50 U.S.C. §413 (a) and reported to Congress the existence of the pre-9/11 1984-2010 NSA TSP data banks as well as the post-9/11 2002-2005 “immaculate construction” NSA PSP data banks. President Bush’s December 22, 2005 § 413 (a) compliance was retroactive for the 2002 NSA PSP, but not for the pre-9/11 1984-2001 NSA TSP data banks that NSA Director Lt. General Alexander continues to administer in 2010.
In his December 22, 2005 letter, AAG Moschella’s letter informed the Congress of the existence of the post-9/11 NSA TSP and emphasized the fact that the classification laws that make unauthorized classified disclosures a crime, remained in full force. This included the Espionage Act, 18 U.S.C. 798, Disclosure of classified information:
The President stated that these activities are “crucial to our national security.” The President further explained that “the unauthorized disclosure of this effort damages or national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country.” These critical national security activities remain
201 classified. All United States laws and policies governing the protection and nondisclosure of national security information, including the information relating to the activities described by the President, remain in full force and effect. The unauthorized disclosure of classified information violates federal criminal law. The Government may provide further classified briefings to the Congress on these activities in an appropriate manner. Any such briefings will be conducted in a manner that will not endanger national security. Id. 1-2. Emphasis Added. http://www.fas.org/irp/agency/doj/fisa/doj122205.pdf.
AAG Moschella explained that the September 18, 2001 enactment of the Use of Military Force (AUMF) statute triggered the exception to the “exclusivity provision” of the FISA as an “except as authorized by the statute” as of September 18, 2001:
The President’s authorization of targeted electronic surveillance by the NSA is also consistent with the Foreign Intelligence Surveillance Act (“FISA”). Section 2511 (2)(f) of title 18 provides, as relevant here, that the procedures of FISA and two chapters of title 18 “shall be the exclusive means by which the electronic surveillance …may be conducted.” Section 1909 of the FISA, in turn, makes it unlawful to conduct electronic surveillance, “except as authorized by the statute.” 50 U.S.C. § 1909(a)(1). Importantly, section 109’s exception for electronic surveillance “authorized by statute” is broad, especially considered in the context of surrounding provisions. See 18 U.S.C. 2511(1) (Except as otherwise specifically provided in this chapter any person who –(a) intentionally intercepts .. any wire, oral, or electronic communication()… shall be punished …”) (emphasis added);id. 2511(2)(e)(providing a defense to liability to individuals “conduct(ing) electronic surveillance,.. as authorized by that Act (FISA)”)(emphasis added).” Id. 3. Underline Emphasis Added.
AAG Moschella explained that with the September 18, 2001 passage of the AUMF, there was no need to amend the FISA because the AUMF and FISA must be construed in harmony to avoid a conflict with the President’s Article II Commander in Chief duties:
Some might suggest that FISA could be read to require that a subsequent statutory authorization must come in the form of an amendment to the FISA itself. But under established principles of statutory construction, the AUMF and FISA must be construed in harmony to avoid any potential conflict of the President’s Article II authority as Commander in Chief. See. e.g. Zadvydas v Davis, 533 U.S. 678, 689 (2001); INS v St. Cyr. 533 U.S. 289, 300 (2001), Accordingly, any ambiguity as to whether the AUMF is a statute that satisfies the requirements of FISA and allows electronic surveillance in the conflict with al Qaeda without complying with FISA procedures must be resolved in favor of an interpretation that is consistent with the President’s long recognized authority. Id. 4. Emphasis Added.
202 AAG Moschella concluded by informing the “Gang of Eight” that because of 9/11, President Bush had to “create an early warning detection system” in 2002:
As explained above, the President determined that it was necessary following September 11, to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system. In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities. Nevertheless, I want to stress that the United States makes full use of FISA to address the terrorist threat, and FISA has proven to be a very important tool, especially in longer-term investigations. In addition, the United States is constantly assessing all available legal options, taking full advantage of any developments in the law. Id. 5. Emphasis Added.
This is an important December 22, 2005 time line fact because this letter implied that this “early warning system” did not exist prior to its post-9/11 creation by President Bush. There is no explanation as to how the 2002-2005 NSA PSP program was funded from 2002-2005 if not from classified OMB Budget funds. DOD Under Secretary for Intelligence Lt. General Clapper and NSA Director Lt. General Alexander know the Past is Prologue off-OMB funding source of the 2002-2005 “immaculate construction” data banks and 1984-2001 NSA TSP data banks. President Bush’s December, 2005 public announcement of the existence of the NSA PSP, was the “tip off” to the nation’s enemies of the heretofore Top Secret NSA electronic surveillance system. AG Holder will be deciding whether the “Glomar Response” defense should be used in 2010 to neither admit nor deny the existence of the “do not exist” pre-9/11 NSA TSP data banks given that the nation’s enemies know of the existence of the “do not exist” post-9-11 2002-2005 “immaculate construction” and the 2006-2010 NSA PSP data banks. This is key issue that the will be decided when Robert’s request for E.O. 13,526 § 1.5 declassification and §1.7 misclassification decisions are made to the Robert VII v DOJ classified documents. § L. If a § 1.5 declassification decision is made because there is no 2010 national security risk, then former-USG attorneys who signed nondisclosure agreements not to reveal the existence of the “do not exist” NSA TSP, would no longer have to fear that they would be indicted for violating The Espionage Act. Then they could inform Congressional Oversight Committees of their knowledge of the violations of the FISA, PCA, and Social Security Act by the DIA-CIA-FBI counterintelligence “plumber” unit that is corroborated by the withheld Robert v Holz, Robert v National Archives, Robert v DOJ, Robert VII v DOJ, and Robert VIII v DOJ, HHS, and SSA documents that are also subject to § 1.7 misclassification decisions. §§ D, L, Y. If a § 1.7 misclassification decision is made, then current NSA employees will not fear being indicted by AG Holder. “Our national security demands that the sort of conduct alleged here — violating the government’s trust by illegally retaining and disclosing classified information — be prosecuted and prosecuted vigorously,” Lanny A. Breuer, the assistant attorney general in charge of the Justice Department’s criminal division, said in a statement.” Shane, Former N.S.A. Official Is Charged in Leaks Case, NY Times, 4-16-10. §§ D, M, Y.
203 Which leads to President Obama’s compliance with his 50 U.S.C. § 413 (b) duty to report to Congress illegal intelligence activities with a “corrective action” plan. This is a timely issue if President Bush did not inform the Congress and the FISC Court that the “do not exist” pre-9/11 NSA TSP data banks were accessed by a DIA-CIA-FBI “plumber” unit to use information re U.S. citizens in law enforcement proceedings in violation of the “exclusivity provision” of the FISA. President Obama’s compliance with 413 (b) could include providing Congress with a copy of the DOD “NSA TSP and PSP data banks access guidelines” as part of the “correction plan” of 2010. AG Holder should inform the 2010 FISC if a 2010 review of the Robert VII v DOJ case file notes, the e-mails, and the DOJ’s internal “FISC Robert” case file documents reveal that misrepresentations of fact and law had been made to the FISC. §§ D, E, F, G, H.
The July 10, 2009 Unclassified Report on the President’s Surveillance Program revealed that the post-9/11 President’s Surveillance Program (PSP) had violated the “exclusivity provision” of the FISA. This Report was filed pursuant to FISA Amendments of 2008:
Title III of the Foreign Intelligence Surveillance Act Amendments of 2008 required the Inspector Generals ((IGs) of the elements of the Intelligence Community that participated in the President’s Surveillance Program (PSP) to conduct a comprehensive of the program. The IGs of the Department of Justice, the Department of Defense, the Central Intelligence Agency, the National Security Agency, and the Office of the Director of National Intelligence participated in the review. The Act required the IGs to submit a comprehensive report on the review to the Senate Select Committee on Intelligence, the Senate Committee on the Judiciary, the House Permanent Select Committee on Intelligence and the House Judiciary Committee. Preface. http://www.usdoj.gov/oig/special/s0907.pdf.
However, the jurisdiction of the Intelligence Community (IC) Inspector Generals (IGs): DOJ Glenn Fine, DOD (Acting) Gordon Hedell, CIA (Acting) Patricia Lewis, NSA George Ellard, and DNI Roslyn Mazer, was explicitly limited to the post-9/11 NSA PSP violations of the FISA. They were not authorized to investigate pre-9/11 NSA TSP violations of the FISA.
The IGs PSP Report explained the use of the term Terrorist Surveillance Program (TSP) as applied to the President’s Surveillance Program (PSP) that was initiated after 9/11. The Report noted that there were highly classified “Other Intelligence Activities” not subject to the Report:
The President and other Administration officials referred to this publicly disclosed activity as the “Terrorist Surveillance Program,” a convention we follow in this unclassified report. We refer to other intelligence activities authorized under the Presidential Authorizations as the “Other Intelligence Activities.” The specific details of the Other Intelligence Activities remain highly classified, although the Attorney General publicly acknowledged the existence of such activities in August, 2007. Together, the Terrorist Surveillance Program and the Other Intelligence Activities comprise the PSP. Id. 6. Emphasis Added.
204 Upon information and belief, the five IC IGs discussed the pre-9/11 NSA TSP data banks in the Classified Report on the President’s Surveillance Program. This was necessary in order that the Congress understood the source of the funding of the construction and maintenance of the 2002-2005 “immaculate construction” NSA PSP data banks that had not been funded with classified OMB Budget funds. Upon information and belief, the IC IGs explained that the funding source for the construction and maintenance of the post-9/11 NSA PSP data banks was the same off-OMB Budget funds that had been used to pay for the 1984- 2001 construction and maintenance of the “do not exist” pre-9/11 NSA TSP data banks. § Z. Upon information and belief, based on the classified information provided by the IC IGs, President Obama fulfilled his U.S.C. § 413 (b) duty to report to Congress the illegal 1984-2001 NSA TSP intelligence activities with a 2009 “corrective action” plan. Upon information and belief, that “corrective action” plan included placing the pre-9/11 NSA TSP data banks and the post-9/11 NSA PSP data banks under the jurisdiction of the new DOD Cyber Command and the funding source for “do not exist” data banks would be the classified OMB Budget for FY 2012. Upon information and belief, there was no discussion of ending the off-OMB Budget source of funding the NSA TSP and PSP data banks in the calendar 2009-2011 transition years. § K. The July 27, 2010, a DNI FOIA request was made for the release of documents cited Classified Report that discussed the funding source for the 2002-2005 NSA TSP data banks that were not funded OMB classified Budget funds. The FOIA request cited to the FOIA requests for the 1982-2009 “OMB Budget” documents that were withheld pursuant to the “Glomar Response” defense and the fact that the OMB FOIA Officer was instructed not to provide a FOIA docket number for these documents. That OMB FOIA request seeks documents to prove that “Jackson nonacquiescence policy” funds were the off-OMB Budget funds to pay for the “do not exist” 1984-2001 NSA TSP, 2001-2005 “immaculate construction” NSA PSP, and the 2002- 2010 NSA PSP data banks, that were administered by the NSA. §§ K, P, Q, R, U, Z, DD. The fact that the July 10, 2009 Unclassified Report on the President’s Surveillance Program informed the public of “Other Intelligence Activities” implies that “NSA TSP and PSP data banks access guidelines” are applied whenever the “Other Intelligence Activities” are implemented by the DIA and the NSA. Hence, the July 27, 2010 DOD FOIA request seeking the release of the “NSA TSP and PSP data banks access guidelines” exist and the funding source of the 2009-2010 NSA TSP and PSP data banks if they are not being funded with classified OMB Budget funds. It remains unclear whether the “Other Intelligenced Activities” are subject to DOD Cyber Command or DNI jurisdiction and Article II checks and balances. Given the gravity of the appellant’s allegations that a fraud upon the court” had been committed by 1980s DOJ attorneys when the FISC surveillance warrants were issued, and then in Robert VII v DOJ re the 50 U.S.C. § 1806 (f) standing issue, DOD General Counsel Johnson can sort out facts with Acting NSA General Counsel Potensa, FBI General Counsel Caproni, and DOJ Chief FOIA Officer-Associate AG Perrelli, whether the “Glomar Response” defense should apply to the de novo July 27, 2010 FOIA request for Robert VII v DOJ “FISC Robert” documents. The NSA and FBI General Counsels know the content of the 1980s “FISC Robert” documents and the reason why the “Glomar Response” defense was used. Associate AG Perrelli knows from reading the Robert VII v DOJ case file notes and e-mails who made the March, 2006 decision to instruct AUSA Mahoney to implement the “Barrett nonacquiescence policy” and withhold material facts from the Second Circuit in AUSA Mahoney’s April 3, 2006 Robert VII v DOJ letter-brief re the 50 U.S.C. § 1806 (f) standing issue. §§ D, E, F, G, H, I, M, AAA.
205 If the “Glomar Response” defense is again used to deny the July 27, 2010 FOIA request for the Robert VII v DOJ “FISC Robert” documents, then in the appellant’s 2010 Motion seeking Judge Garaufis’ pre-clearance Order to file the putative FOIA complaint seeking the “FISC Robert” documents, Robert will make the “Catch 22” argument that was made in the New York Times April 4, 2010 Editorial which explained Judge Walker’s Al Haramain v Obama decision that held the plaintiffs in that action were FISA 50 U.S.C § 1806 (f) aggrieved persons “They could not know that because the wiretapping was secret. If they somehow found out, they could not prove the wiretapping was warrantless, because that was also a secret.” Catch 22. § F. Acting NSA General Counsel Potenza testified on September 12, 2006 before the House Subcommittee on Crime, Terrorism, and Homeland Security Committee re Legislative Proposals to Update the Foreign Intelligence Surveillance Act. With the knowledge that AAG of the Civil Division Keisler has instructed AUSA Mahoney to implement the “Barrett nonacquiescence policy” on April 3, 2006 to deceive the Second Circuit on the Robert 50 U.S.C § 1806 (f) standing issue, he suggested Congress should not enact FISA amendments that altered the “settled understandings” re Article I oversight of Article II implementation of the FISA:
More generally, we believe that the longstanding laws and traditions concerning intelligence committee oversight have been effective and workable, and we therefore have concerns with changes that would amend the National Security Act in a manner that alters these settled understandings.” Id. 2. Emphasis Added. http://www.nsa.gov/public_info/speeches_testimonies/12sept06_potenza.s html
Acting NSA General Counsel Potensa can provide DOD General Counsel Johnson with a “heads up” memo as to the process by which the “do not exist” pre-9/11 NSA TSP and PSA data banks were accessed without the knowledge of Congressional Oversight Committees when the TALON program was implemented after AAG of the OLC Dellinger’s April 5, 1994, Use of Military Personnel for Monitoring Electronic Surveillance and his February 14, 1995 Standards for Searches Under Foreign Intelligence Surveillance Act. Acting NSA General Counsel Potensa knows whether a retroactive application of those 1994 and 1995 OLC standards to the 1980s access of NSA military officers actions to the Robert information secured from the NSA TSP, would have prevented the 1980s DIA-CIA-FBI counterintelligence “plumber” unit from providing the NSA TSP information to HHS General Counsel del Real, a covered agent, to use in the “Fraud Against the Government” investigation of Robert. The “primary purpose” of that investigation was to eliminate an attorney challenging the off-OMB Budget funding source for the “do not exist” NSA TSP being conducted in violation of the FISA and the PCA. § AAA. FBI General Counsel Caproni can provide DOD General Counsel Johnson with a heads up memo as to the results of applying the internet posted December, 2008 AG Guidelines for Domestic FBI Operations retroactively to the 1980s FBI counterintelligence “plumber” unit’s use of the “FISC Robert” information for domestic “law enforcement” purposes. “The DIOG is a living operational guide and its release to the public is intended to provide as much transparency as possible.” http://foia.fbi.gov/foiaindex/diog.htm. Emphasis Added. In a heads up memo FBI General Counsel Caproni could address the issue of whether FBI Director Mueller knows the Robert VII v DOJ documents are connect-the-dots to the “FBI Abshire” documents. § Y.
206 FBI Director Mueller responded to a NY Times October 19, 2008 editorial re the FBI Guidelines approved by AG Judge Mukasey. FBI Director Mueller reassured the public in a letter to the Editor that the FBI Guidelines provide a “uniform and transparent” standards for prior FBI guidelines. “Contrary to your Oct. 19 editorial “Another Invitation to Abuse,” the newly consolidated attorney general investigative guidelines do not grant any new legal authorities; rather, they provide a uniform and transparent standard to use the authorities we have long held.” Emphasis Added. New F.B.I. Guidelines, NY Times, 10-26-08. See also October 27, 2008 FBI Press Release. http://www.fbi.gov/pressrel/pressrel08/mueller_nyt102708.htm.
FBI Director Mueller informed the public that “after long and careful consideration” and in consultation with the Congress, the new FBI Guidelines were designed to include “oversight and compliance structure” to protect U.S. citizens’ rights when there is FBI surveillance:
These changes came only after long and careful consideration, including unprecedented consultation with Congress and major civil rights and civil liberties groups. We are well aware, however, that if we protect the nation from harm but sacrifice the civil rights and civil liberties that make this country great, we will have done the country a grave disservice.
For that reason, the newly consolidated guidelines reflect an oversight and compliance structure designed to ensure such respect for Americans’ liberties. Id. Emphasis Added.
DOD General Counsel Jeb Johnson should also consult with 2010 AAG of the National Security Division David Kris. He was the 2000-2003 Associate Deputy Attorney General in charge of the FISC applications who honorably resigned in 2003. He knows the 2002-2005 NSA PSP data banks were an extension of the 1984-2001 NSA TSP. §§ K, N, Y, W, QQ, SS, UU,.
DOD General Counsel Johnson should also consult with 2010 Associate Deputy Attorney General Baker who was the 2002-2007 Counsel for the National Security Division of Intelligence Policy. He knows why he was ordered to withdraw his Robert VII v DOJ “uncorrected” Declaration and replace it with his “corrected” Declaration. He knows the “smoking gun” facts not revealed in AUSA Mahoney’s Second Circuit April 3, 2006 letter-Brief, that corroborated Robert’s 50 U.S.C. § 1806 (f) standing assertion. §§ D- H, M, AAA.
DOD General Counsel Johnson should also consult with Acting AAG of the OLC Barron to determine if the April 5, 1994 OLC opinion PCA “passive-active participation” standard applies to the 2010 “NSA TSP and PSP data banks access guidelines” given the elimination of the DAG Gorelick’s 1995 “wall” and the fact that decisions to access the “do not exist” NSA TSP data banks are made by the dual-hatted military officer DOD Cyber Command Commander-NSA Director Lt. General Alexander. The Robert VII v DOJ “Robert FISC” documents and 2004-2006 case file notes and e-mails, provide “real facts” for the drafting of a 2010 update of AAG of the OLC Dellinger’s April 5, 1994 OLC opinions that established PCA domestic military limitations. This an especially important inquiry if DOD Under Secretary of Defense for Intelligence is confirmed as the NID Director because his direct chain of command officer is not DOD Secretary Gates, but Commander-in-Chief President Obama. §§ J, K, N.
207 Thus, DOD General Counsel Johnson should secure “lessons learned” information from 2007-2010 Under Secretary of Intelligence Lt. General Clapper. Upon information and belief, 1992-1995 Director of the Defense Intelligence Agency Klapper had discussions re data mining with 1993-1994 DOD General Counsel Jamie Gorelick who succeeded DOD General Counsel Addington. If so, then this is an important mens rea fact. When she became 1994-1997 DAG Gorelick, she was bound by AAG of the OLC Dellinger’s 1994 PCA and 1995 FISA OLC opinions when she constructed the “wall” to protect the Top Secret NSA TSP data mining from being revealed in Title III “law enforcement” proceedings. Upon information and belief, he also consulted with 1994-1995 DOD Deputy General Counsel David Ogden who would become the 1995-1997 Associate DAG, the 1997-1998 Counselor to AG Reno, 1998-1999 Chief of Staff to AG Reno, the 1999-2001 AAG of the Civil Division, and supervising attorney of U.S. Attorney Lynch in Ford, Robert v National Archives, and Robert v DOJ. §§ B, C, T, V, W, Z. If DOD Secretary Gates instructs DOD Johnson to update the coordination of the AG Guidelines for Domestic FBI Operations with the “NSA TSP and PSP data banks access guidelines” that are used by the 2010 DOD Cyber Command military officers when they access the “do not exist” NSA TSP and PSP data banks, then DOD Secretary Gates also has valuable “lessons learned” when he was CIA Deputy Director for Intelligence in 1982-1985 before becoming CIA Deputy Director from April 18, 1986 to March 20, 1989. He knows how the 1980s CIA “stovepipe” was used to provide a “plausibility defense” to the violations of federal laws including the funding of the “do not exist” 1984-1989 NSA TSP data banks. § AA.
DOD Secretary Gates, as the 1991-1993 CIA Director, knew that 1989-1993 DOD Secretary Cheney and his 1992-1993 DOD General Counsel Addington had access to information from the “do not exist” 1989-1993 NSA TSP data banks. This is an important 1991- 1993 Past is Prologue mens rea fact because on December 18, 2006, DOD Secretary Gates, as the DOD Secretary succeeding DOD Secretary Rumsfeld, knew that the 2006 TALON program had access to the “do not exist” 1984-2001 NSA TSP data banks as well as to the 2002-2005 “immaculate construction” NSA PSP data banks. This is an important 2006 fact if AAG of the Civil Division Keisler did not file a “c (3) exclusion” Declaration in Robert VII v DOJ that explained why the TALON program did not provide Robert with FISA 50 U.S.C. § 1806(f) standing because the “do not exist” NSA TSP data banks were being accessed in 2006. §§ G, M.
If DOD Secretary Gates instructs DOD Johnson to update the coordination of the AG Guidelines for Domestic FBI Operations with the “NSA TSP and PSP data banks access guidelines” used by 2010 DOD Cyber Command military officers, then he should consult with President Obama’s newly appointed May 21, 2010 DOD Cyber Commander Lt. General Alexander who is the dually-hatted NSA Director Lt. General Alexander. Because he became the NSA Director in 2005, succeeding NSA Director Hayden who became the 2006 CIA Director, he knows the off-OMB Budget source that paid for the “do not exist” 1984-2001 NSA TSP data banks and the 2002-2005 NSA PSP “immaculate construction” data banks. §§ K, Z. On June 3, 2010, Cyber Command Commander Lt. General Alexander, as the dual- hatted NSA Director, presented his views on the DOD’s need to balance the DOD-NSA Cyber Command’s national security mission with the protection of the civil liberties of U.S. citizens in his presentation at the Center for Strategic and International Studies (CSIS): U.S. Cybersecurity Policy and the Role of U.S. Cybercom. He identified “robust rigorous procedures” that the NSA professionals used to protect U.S. citizens civil rights:
208 U.S. Cyber command is a military command that falls under Title 10, but its business relies on the success of net-speed intelligence, which is why collocating the command with NSA was not only wise, but an imperative.
I know that some have concerns about intelligence community involvement in securing the nation’s cyber infrastructure. Those concerns are valid, which is why the professionals at the National Security Agency have robust rigorous procedures to minimize the effects of intelligence activities upon U.S. persons.
NSA also has an experienced and energetic oversight, both internally and from the Department of Justice, the FISA Court and from Congress. This explains why collocation of Cyber Command with those same professionals is perhaps the best way to ensure the transparency of operations that can affect U.S. persons’ data and the protection of privacy and civil liberties as our military operates in cyberspace. Id. 7. Emphasis Added.http://www.nsa.gov/public_info/_files/speeches_testimonies/10060 3_alexander_transcript.pdf
The appellant’s FOIA requested DOD “NSA TSP and PSP data banks access guidelines” are the internal guidelines used by the Cyber Command military officers when they access the NSA TSP and PSP data banks. These are the Guidelines that contain the “robust rigorous procedures” noted by DOD Cyber Commander-NSA Director Lt. General Alexander. These Guidelines should dovetail with the FBI’s Domestic Investigations and Operations Guide already posted on the internet. If the DOD FOIA Officer renders a “Glomar Response” of neither admitting nor denying the existence of Guidelines for the “do not exist” NSA TSP data banks, then DOD General Counsel Johnson should contact dual hatted NSA Director Alexander.
On May 5, 2009, NSA Director Lt. General Alexander explained in his Statement to the House Armed Services Committee Terrorism, Unconventional Threats, and Capabilities Subcommittee, the DOD’s Cyber Command plan to monitor cyberspace with both offensive and defensive capabilities in cyberspace which does not have foreign and domestic borders:
As the Commander, Joint Functional Component Command for Network Warfare (JFCC NW), it is my responsibility to support USSTRATCOM’s mission to plan, coordinate, an conduct offensive and defensive operations. Executing this mission requires assembling and maintaining a force capable of adapting to, and operating in, a complex and continually evolving and expanding environment. Unlike the land, sea, air and space whether the laws of physics do not change, cyperspace is a man-made creation that continually changes and evolves –operating effectively in this kind of environment requires that we leverage the expertise from a wide variety of disciplines. Moreover, we must close the seams between information assurance, network operation and defense, intelligence collection and offensive operations. Id. 1. Emphasis Added. http://www.nsa.gov/public_info/speeches_testimonies/5may09_dir.shtml
209 When DOD Cyber Command Commander-NSA Director Lt. General Alexander takes action to “close the seams” of intelligence collection and offensive actions, there needs to be DOD “NSA TSP and PSP data banks access guidelines” that establish internal Article II checks and balances not only to prevent violations of the “exclusivity provision” of the FISA, but also to be checks and balances to prevent violations of the PCA with its limitations on military officers participating in domestic law enforcement proceedings. Hence, the importance of DOD General Counsel Johnson making sure that the DOD “NSA TSP and PSP data banks access guidelines” dovetail with the AG Guidelines for Domestic FBI Operations, being applied in 2010 by DOD Cyber Command Commander Lt. General Alexander and his 2010 military officers to prevent the abuses that occurred when the TALON program was implemented. DD.
The FOIA requested DOD “NSA TSP and PSP data banks access guidelines” can be applied to the “Other Intelligence Activities” which, upon information and belief, include the 2010 harvesting of information from the “do not exist” pre-9/11 NSA TSP data banks that are now accessed by 2010 DOD Cyber Command military officers. The Congressional Oversight Committees should be able to review the Article II “checks and balances” standards that are used when accessing the information that had been illegally secured by the construction and maintenance of the pre-9/11 NSA TSP. Perhaps, if the Congress and the public had known the DOD checks and balances standards, the TALON abuses would not have occurred. § DD. If the Robert VIII v DOJ, HHS, and SSA appeal is reinstated, then the appellant will be filing a complaint with President Obama’s Privacy and Civil Liberties Oversight Board. Upon information and belief, one reason why the President has not made his appointments to the Board, is because he is awaiting the confirmation of Under Secretary of Intelligence Lt. General Clapper to be the DNI Director and DAG Nominee James M. Cole to be the DAG succeeding DAG Ogden. Nominee Cole was a 1979-1992 DOJ attorneys who became the Deputy Chief of the Public Integrity Section. He will not have DAG Ogden’s appearance of a conflict of interest.
The appellant will allege that DOJ attorneys have violated his First Amendment Right of Access to the Courts by implementing the “Barrett nonacquiescence policy” and withholding material facts from Judge Garaufis and the Second Circuit. He will request that the Board apply “NSA TSP and PSP data banks access guidelines” retroactively to the Robert VII v DOJ FISC Robert” and Robert v Holz classified documents and determine if Robert’s First Amendment Right of Access to the Courts were violated in 1985, 1988, 2006, and 2010. He will request that the Board apply AAG of the OLC Dellinger’s 1994 PCA and 1995 FISA OLC standards to the facts revealed in the Robert withheld classified documents. He will assert AG Holder’s 2010 chain of command attorneys are “covering up” the First Amendment breaches and 2010 violations of the Social Security Act, the FISA, the PCA, the National Security Act, and SSA Commissioner Astrue’s false January 24, 2007 Senate Finance Committee testimony, by their 2010 implementation of the “Barrett nonacquiescence policy” and withholding material facts from the Second Circuit notwithstanding their own ethical duty to cure misrepresentations of fact and law made to Judge Garaufis and the Second Circuit. §§ C-H, M, V, W, Y, Z, AAA.
Therefore, U.S. Attorney Lynch should read the “NSA TSP and PSP data banks Access Guidelines” along with the Robert VII v DOJ withheld classified documents. Then U.S. Attorney Lynch will know whether Robert was an “aggrieved person” by application of 50 U.S.C. § 1806 (f). This is a fact AG Holder should know when he considers the quiet settlement offer. § AAA.
210 DD. DNI General Counsel Litt’s duty to read the FOIA requested DNI “NCTC TSP and PSP data banks access guidelines” to determine whether there are any 2010 violations of the FISA “exclusivity provision” and PCA military “law enforcement” restrictions by application of AAG of the OLC Dellinger’s 1994 PCA and 1995 FISA standards
Based on President Obama’s E.O. 13,256, NID General Counsel Litt has a duty to read the DNI FOIA requested DNI “NCTC TSP and PSP data banks access guidelines” to determine whether there are 2010 violations of the FISA “exclusivity provision” and the PCA military “law enforcement” restrictions. These DNI NCTC Guidelines should dovetail with the Guidelines for Domestic FBI Operations administered by FBI Director Mueller and the DOD “NSA TSP and PSP data banks access guidelines” administered by DOD Secretary Gates. The appellant seeks release of the DNI NCTC Guidelines to apply along with AAG of the OLC Dellinger’s 1994 PCA and 1995 FISA standards, to Robert v Holz, Robert VII v DOJ, and Robert VIII v DOJ, HHS, and SSA declassified documents to determine whether the NCTC Guidelines checks and balances would prevent 1980s FISA and PCA Past is Prologue violations in 2010. §§ M, CC.
These DNI NCTC Guidelines will take on greater importance if DOD Under Secretary for Intelligence Lt. General Clapper, retired, is confirmed as the DNI Director. His chain of command officer will no longer be DOD Secretary Gates, but will be President Obama, the Commander in Chief. When DNI Director Lt. General Clapper learns of any breaches of the checks and balances of the DNI “NCTC TSP and PSP data banks access guidelines” by any of the intelligence community agencies, including DOD Cyber Command military officers, he has a duty to report these breaches directly to President Obama. As a result, if there are any 2010 violations of the FISA or the PCA, then President Obama will learn of the violations and have an Article II “take Care” duty to take action to end the violations of federal laws. §§ K, N.
The fact that Under Secretary of Intelligence Lt. General Clapper will be directly accountable to President Obama will mean that the extreme Unitary Executive theory of the daisy chain of shadow government patriots, who believe they have the Article II authority to lie-by-omission to the President to provide the President with a plausible deniability defense to the violation of federal laws that are impeachable offenses, will not apply to the enforcement of the DNI “NCTC TSP and PSP data banks access guidelines” in 2010. A vertical chain of command directly to the President will eliminate the horizontal DNI NCTC stovepipe that resulted in NCTC Leiter not having access to the universe of Intelligence Community (IC) data banks or knowing the source of the off-OMB Budget funding of the “do not exist” 2002-2005 “immaculate construction” and 2006-2010 NSA PSP data banks during the Constitutional watches of President Bush and President Obama. The DNI Director’s Commander in Chief will be President Obama and not the 2010 daisy-chain of shadow government patriots whose “Commander in Chief” knew USG attorneys lied-by-omission to President Obama to provide a plausible deniability defense to FISA, PCA, National Security Act, and Social Security Act violations which they knew were impeachable offenses if ratified by President Obama. §§ K, N.
On June 28, 2010, in Free Enterprise Fund v Public Company Accounting Oversight Board, __ S. Ct. ___(2010), Chief Justice Roberts explained that the Unitary Executive theory is based on the “buck stops with the President” Article II duty of the President to be an accountable President responsible for the enforcement all laws by any Executive Branch agency:
211 The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so. That power includes, as a general matter, the authority to remove those who assist him in carrying out his duties. Without such power, the President would not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else. Such diffusion of authority “would greatly diminish the intended and necessary responsibility of the chief magistrate himself.” The Federalist No. 70, at 478. Id. slip opinion 33. Emphasis Added.
Chief Justice Roberts Free Enterprise Fund holding that the “buck stops with the President” takes on more significance with the public reporting of a “Top Secret America” that has grown beyond the 2010 control of former- DNI Director Blair, DOD Secretary Gates, and CIA Director Panetta. As reported by Priest and Arkin, Top Secret America: A hidden world, growing beyond control, Washington Post, 7-19-10, the July, 2010 Acting DNI Director Gompert does not have command and control over the universe of 1,271 government organizations and 1,931 private companies that work on programs related to counterterrorism, homeland security, and intelligence in about 10, 0000 locations across the country:
The top-secret world the government created in response to the terrorist attacks of Sept. 11, 2001, has become so large, so unwieldy and so secretive that no one knows how much money it costs, how many people it employs, how many programs exist within it or exactly how many agencies do the same work. Id. 1. Emphasis Aded. http://projects.washingtonpost.com/top-secret-america/articles/
Priest and Arkin reported that there were a handful of DOD “Super users” that had access to all of the information, but they could not keep up with the information:
In the Department of Defense, where more than two-thirds of the intelligence programs reside, only a handful of senior officials-called Super Users-have the ability to even know about all the department's activities. But as two of the Super Users indicated in interviews, there is simply no way they can keep up with the nation's most sensitive work. Id. 2. Emphasis Added.
Priest and Arkin reported that in 2004 the DIA and CIA had hid classified data from first DNI Director Negroponte:
Even before the first director, Ambassador John D. Negroponte, was on the job, the turf battles began. The Defense Department shifted billions of dollars out of one budget and into another so that the ODNI could not touch it, according to two senior officials who watched the process. The CIA reclassified some of its most sensitive information at a higher level so the National Counterterrorism Center staff, part of the ODNI, would not be allowed to see it, said former intelligence officers involved. Id. 3.
NCTC Director Leiter described his information gathering problem:
212 The practical effect of this unwieldiness is visible, on a much smaller scale, in the office of Michael Leiter, the director of the National Counterterrorism Center. Leiter spends much of his day flipping among four computer monitors lined up on his desk. Six hard drives sit at his feet. The data flow is enormous, with dozens of databases feeding separate computer networks that cannot interact with one another. There is a long explanation for why these databases are still not connected, and it amounts to this: It's too hard, and some agency heads don't really want to give up the systems they have. But there's some progress: "All my e-mail on one computer now," Leiter says. "That's a big deal." Id. 4. Priest and Arkin reported on hundreds of DOD Special Access Programs (SAPs) to which NCTC Director Leiter does not have access:
Beyond redundancy, secrecy within the intelligence world hampers effectiveness in other ways, say defense and intelligence officers. For the Defense Department, the root of this problem goes back to an ultra-secret group of programs for which access is extremely limited and monitored by specially trained security officers.
These are called Special Access Programs - or SAPs - and the Pentagon's list of code names for them runs 300 pages. The intelligence community has hundreds more of its own, and those hundreds have thousands of sub- programs with their own limits on the number of people authorized to know anything about them. All this means that very few people have a complete sense of what's going on.
"There's only one entity in the entire universe that has visibility on all SAPs - that's God," said James R. Clapper, undersecretary of defense for intelligence and the Obama administration's nominee to be the next director of national intelligence.
Such secrecy can undermine the normal chain of command when senior officials use it to cut out rivals or when subordinates are ordered to keep secrets from their commanders. Id. 6. Emphasis Added.
In their follow up report, Top Secret America: National Security, Inc., Washington Post, 7-20-10, Priest and Arkin reported of the extraordinary expansion of the use of private companies which are contracted to perform intelligence duties, but whose obligations are to shareholders and not to DOD Secretary Gates, CIA Director Panetta, and the public interest:
What started as a temporary fix in response to the terrorist attacks has turned into a dependency that calls into questions whether the federal workforce includes too many people obligated to shareholders rather than the public interest—and whether the government is still in control of its most sensitive activities. In interviews last week, both Defense Secretary
213 Robert M Gates and CIA Director Leon Panetta said they agreed with such concerns.
The Post investigation uncovered what amounts to an alternative geography of the United States, a Top Secret America created since 9/11 that is hidden from public view, lacking in thorough oversight and so unwieldly that its effectiveness is impossible to determine. Id. 1. Emphasis Added. http://projects.washingtonpost.com/top-secret- america/articles/national-security-inc/print/
CIA Director Panetta noted the CIA’s dependency on the private contractors and the inherent conflict of interest of private contractors:
"For too long, we've depended on contractors to do the operational work that ought to be done" by CIA employees, Panetta said. But replacing them "doesn't happen overnight. When you've been dependent on contractors for so long, you have to build that expertise over time."
A second concern of Panetta's: contracting with corporations, whose responsibility "is to their shareholders, and that does present an inherent conflict." Id. 2. Emphasis Added.
DOD Secretary Gates raised the public interest and loyalty issue:
Or as Gates, who has been in and out of government his entire life, puts it: "You want somebody who's really in it for a career because they're passionate about it and because they care about the country and not just because of the money." Id. 2. Emphasis Added.
As per Free Enterprise Fund, the “buck” stops with President Obama in order that he is accountable to the public for the funding of all SAPs conducted during his Constitutional watch. Hence, the importance of the new DNI reporting vertically directly to President Obama and taking command and control over the universe of intelligence decision makers, including private contractors. This is especially the case if some the 1984-2010 daisy chain of shadow government decision-makers turn out to be “Top Secret America” major shareholders. § K.
The purpose of the FOIA requested DNI “NCTC TSP and PSP data banks access guidelines” is to learn the standards used not only by the DNI, but by the “Other Intelligence Activities” including the standards applied by the private contractors accessing the NSA TSP and PSP data banks. This FOIA request is for the DNI Guidelines that are used when information is retrieved from the 1984-2010 data banks for “law enforcement” purposes. This FOIA request is necessary because the January 21, 2009 The Intelligence Community Directive Number 501 was issued prior to President Obama’s May, 2009 decision to transfer all data banks to the new DOD Cyber Command whose command and control officer would become DOD Cyber Commander-NSA Director Lt. General Alexander. DNI Directive 501 (C) explicitly stated that it was not to be used as guidelines for “law enforcement” purposes:
214 B. PURPOSE:
1. This Intelligence Community Directive (ICD) establishes in part the Director of National Intelligence (DNI) guidelines called for in Section 1.3(b)(B) of EO 12333, as amended, addresses mandates in the Intelligence Reform and Terrorism Prevention Act of 2004 to strengthen the sharing, integration, and management of information within the Intelligence Community (IC), and establishes policies for (1) discovery; and (2) dissemination or retrieval of intelligence and intelligence-related information collected or analysis produced by the IC.
C. APPLICABILITY:
1. This Directive applies to the IC, as defined by the National Security Act of 1947, as amended; and such other elements of any other department or agency as may be designated by the President, or designated jointly by the Director of National Intelligence (DNI) and the head of the department or agency concerned, as an element of the IC.
2. This Directive does not apply to purely law enforcement information. When law enforcement information also contains intelligence or intelligence-related information, this Directive shall apply to the intelligence or intelligence-related information. Emphasis Added. http://www.dni.gov/electronic_reading_room/ICD_501.pdf
The appellant is seeking the DNI “NCTC TSP and PSP data banks access guidelines” to apply them to the Robert VII v DOJ “FISC Robert” documents along with AAG of the OLC Dellinger’s April 5, 1994 Use of Military Personnel for Monitoring Electronic Surveillance OLC opinion and his February 14, 1995 Standards for Searches Under Foreign Intelligence Surveillance Act OLC opinion, as part of “lessons learned” and “Past is Prologue” exercises to present to DNI General Counsel Robert Litt. Because no “wall” exists within the DOD Cyber Command, the DNI “NCTC TSP and PSP data banks access guidelines” should be an Article II checks and balances akin to the 1995 “wall” that DAG Gorelick had constructed to protect the NSA TSP. If so, then AAG of the OLC Dellinger’s 1994 and 1995 PCA and FISA opinions or their successors, should be applied to the DNI “law enforcement” guidelines. §§ K, M, CC, GG.
The appellant is also seeking the release of the 2010 DNI “NCTC TSP and PSP data banks access guidelines” to inform AG Holder whether they dovetail with the AG Guidelines for Domestic FBI Operations. Then AG Holder can decide whether the DNI Guidelines should also apply to “Other Intelligence Activities” not subject to the IC IGs July 10, 2009 classified Report. If not, then AG Holder should recommend that the new DNI Director and NDI General Counsel Litt establish NCTC Guidelines that apply to all IC and private contractors’ data bases. A universal 2010 NCTC Guidelines could be part of President Obama’s National Security Act, 50 U.S.C. § 413 (b), “corrective action” plan that informs the Congress of existence of the heretofore “do not exist” pre-9/11 NSA TSP data banks that NSA Directors have accessed from 1984-2010 and the new 2010 universal standards applied to access these DOD data banks. § CC.
215 Despite his best intentions, NDI Director Blair never succeeded in institutionalizing the protection of citizens civil rights during his NDI Director tenure. In his April 6, 2010 Remarks at the Bipartisan Policy Center-State of Intelligence Reform Conference, DNI Director Dennis Blair had highlighted the importance of US citizens’ rights:
And though it all, we have to continue to drive information-sharing but we also have ensure that the privacy and civil liberties protections of Americans are maintained intact. That’s not just lip service, it’s an essential part of being an American Intelligence Community. As important, a part of getting it right is ensuring that all of our activities take place within the boundaries of our Constitution and of our laws. Id. 9. Emphasis Added. http://www.dni.gov/speeches/20100406_5_speech.pdf
NID Deputy Director for Policy, Plans, and Requirements David Shield, a 27 year CIA officer, commented at the same conference on his CIA legacy from the Iran-Contra affair:
In Central America at that time, I came to a profound recognition that the Constitution, informed by the legislative process, has rules that cannot be broken without consequences. It instilled in me a passion to move from strictly the intelligence operative side in the filed to one of better understanding of how policy and intelligence come together. Id. 1. Emphasis Added. http://www.dni.gov/speeches/20100406_2_speech.pdf
Apparently, former- DNI Blair did not know the off-OMB Budget funding source for the “do not exist” 1984-2010 NSA TSP and PSP data banks to which DOD Cyber Command NSA Director Lt. General Alexander had access, but NCTC Director Leiter did not. If so, then this highlights the February, 2010 PNSR report. “Data credibility—ensuring departmental budget submissions accurately reflect their true counterterrorism programs levels—is still challenging due to the diversity and complexity of the mission.” Id. 82. Emphasis Added.
With the resignation of DNI Director Blair, there should be no question of the new DNI Director not knowing of the existence of “Other Intelligence Activities” data banks and the funding source for all of these “other” intelligence activities. This is especially the case given the Senate Intelligence Committee’s May 18, 2010 Unclassified Executive Summary of the Committee Report on the Attempted Terrorist Attack on Northwest Airlines Flight 253, and its findings of systemic failures at the NCTC. “Specifically, the NCTC was not organized adequately to full its mission.” http://intelligence.senate.gov/100518/1225report.pdf.
Based on the February, 2010 PNSR Report, NCTC Director Leiter should review information he received from OMB. As reported in his May 6, 2009 Remarks and Q & A to the ABA Standing Committee on Law and National Security, he believed the prior problems in foreign and domestic information sharing between the CIA, FBI, and DOD had been eliminated:
The vast majority of my staff are detailed to me from other organizations, so I have sitting side by side CIA, FBI, Department of Defense and every other acronym-laden agency you can imagine. And the CIA people are not
216 simply looking at CIA information, the FBI are not simply looking at FBI information. They are looking at each other’s information, and I am looking at all of that information. And we are trying to ensure that that information is crossing those traditional boundaries. Id. 5. Emphasis Added. http://www.dni.gov/speeches/20090506_speech.pdf
NCTC Director Leiter highlighted the ability to information-share has been enhanced by the active participation of OMB which is his “closest partner” re IC agencies’ expenditures:
Well my closest partner in this challenge is none other than the mighty Office of Management and Budget. My links between our organization and OMB, in Washington speak, are incredibly important for ensuring that we are not only talking about this in forums like this, but that, equally important, I am talking about it with OMB examiners so when they sit down departments and agencies, we ensure that budgets and programs, now and into the future are aligned with these priorities and not simply with priorities which, I think is fair to say, can almost guarantee support. Id. 7. Emphasis Added.
NCTC Director Leiter highlighted the foreign and domestic distinction as to civil liberties when using electronic surveillance to protect the nation from terrorists and U.S. citizens’ rights:
That distinction between the foreign and the domestic, in almost every way does not exist at this National Counterterrorism Center. Now, it does exist in one very important way, and that is in the protection of civil liberties and the way in which different information is treated, because clearly, domestically collected information about U.S. persons and the like, or information collected overseas about U.S. persons, has to be protected and done very differently. And clearly, the operations that collect that information are done very differently domestically and overseas. Id. 3. Emphasis Added.
NCTC Director Leiter’s concerns as to DNI having special standards when there is domestically collected information were apparently not considered by NDI Civil Liberties Protection Officer Alexander Joel. He did not docket Robert’s January 5, 2007 complaint that USG attorneys and officials were violating Robert’s First Amendment Right of Access to the Courts by refusing to docket Robert’s requests pursuant to President Bush’s March 23, 2003 Executive Order 13292 for § 1.5 declassification decisions re four sets of documents and for the § 1.7 misclassification of documents to “cover up” USG attorneys violations of federal law. The allegations included subordination of perjury by withholding material information from the Second Circuit in Robert VII v DOJ. NDI Civil Liberties Protection Officer Joel remains as the 2010 NDI Civil Liberties Protection Officer subject to President Obama’s E.O. 13,256. § L.
If the July 27, 2010 FOIA request for the DNI NCTC Guidelines are not docketed or a “Glomar Response” defense is used, then Robert will file a de novo complaint with Civil Liberties Protection Officer Joel. Robert will make the same 2007 “cover up” allegations. § M.
217 The appellant’s July 27, 2010 FOIA request for the DNI’s “NCTC’s TSP and PSP data banks Access Guidelines” will result in DNI Chief FOIA Officer Acting Deputy Director for Administration Lawrence Baer’s search for this document. If NCTC Leiter uses NCTC Guidelines for access to the NSA TSP and PSP data banks, then these NCTC Guidelines should be released by application of AG Holder’s March 19, 2009 FOIA Guidelines. If NCTC Director Leiter has no NCTC Guidelines, then the DNI Chief FOIA Officer should so state. AG Holder should know that there are no Guidelines for access to “do not exist” 1984-2001 NSA TSP data banks or “Other Intelligence Activities” discussed in the IGs July 10, 2009 Report. If the NCTC Guidelines exist and DNI Chief FOIA Officer Baer is ordered to use the “Glomar Response” defense, then the DNI Chief FOIA Officer Baer will issue a decision that “no responsive documents” exist. The appellant will appeal that DNI denial decision and request E.O. 13,256 § 1.5 declassification and § 1.7 misclassification decisions. He will argue that there is no national security risk because he is requesting NCTC Guidelines to data bases that are chronologically prior to the “do not exist” 2002-2005 NSA PSP data banks that President Bush made public in December, 2005. He will argue that because the nation’s enemies already know the DOD Cyber command post-9/11 data banks exist, there is no risk by releasing NCTC access Guidelines to harvest information from the 1984-2009 NSA TSP and PSP data banks. § CC. If there are no “NCTC’s TSP and PSP data banks Access Guidelines, then the prior NCTC Directors 2004-2005 (Acting) John Brennan, 2005-2007 Vice Admiral John Redd, 2007- 2008 (Acting) Michael Leiter, and 2008-2010 Michael Leiter did not establish any Guidelines. AG Holder can consult with DOD Under Secretary of Defense for Intelligence Clapper while the confirmation process proceeds and inform him that NCTC Director Leiter should establish universal NCTC Guidelines. NCTC Director Leiter is an attorney who had clerked for Justice Breyer and was a 2002-2005 in the Eastern District of Virginia. Therefore, he could use the Robert v Holz and Robert VII v DOJ withheld classified documents and DOJ case file notes and e-mails as “lessons learned” and “Past is Prologue” documents when he drafts effective checks and balances in the DNI NCTC Guidelines that would be made public. §§ E-H, L, M, AAA.
The NCTC Guidelines should dovetail with the FBI and DOD Guidelines. FBI Director Mueller posted on the internet his December, 2008 The AG Guidelines for Domestic FBI Operations. http://www.usdoj.gov/ag/readingroom/guidelines.pdf. “The vast majority of the new rules will be available to the public, in contrast to the classification of substantial portions of the previous guidelines.” October 3, 2008 Joint Press Release of AG Judge Mukasey and FBI Director Mueller. http://www.fbi.gov/pressrel/pressrel08/agg_statement100308.htm.
The FBI’s Domestic Investigations and Operations Guide was posted to provide FBI transparency. “The DIOG is a living operational guide and its release to the public is intended to provide as much transparency as possible.” http://foia.fbi.gov/foiaindex/diog.htm. The NCTC Guidelines should also be posted on the DNI website. If there are classified portions of the NCTC Guidelines, as there are classified portions of the FBI Guidelines, then the FOIA request should be granted with the redaction of the classified provisions. Those redacted provisions would be subject to a E.O. 13,526 § 1.5 declassification decision. The released NDI FOIA redacted documents would be subject to Dinler Article III in camera review. §§ D, L, XX.
NCTC Director Leiter would seek the Guidance of NDI General Counsel Robert Litt. He should also consult with FBI General Counsel Caproni re the classified portions. § AAA.
218 NID General Counsel Robert Litt has extensive DOJ experience. From 1994-1997 he was a DOJ DAAG of the Criminal Division. From 1997-1999 he was Principal Associate Deputy Attorney General. As a result, he is the appropriate NDI official to conduct a “lessons learned” the “Past is Prologue” application of AAG of the OLC Dellinger’s 1994 PCA and 1995 FISA OLC standards to the Robert v Holz and Robert VII v DOJ withheld classified documents, case file notes, and e-mails. He can read those classified documents and determine if Robert’s almost incredible 1982-2010 allegations are true. In this way, he can include in new universal NCTC Guidelines checks and balances to prevent violations of the FISA, PCA, National Security Act and Social Security Act that were revealed in the Robert classified documents that resulted from the extreme “Unitary Executive” theory of 1981-1984 CIA Assistant Counsel Addington or from “poor judgment” by DOJ attorneys or from rogue fifth column USG officials whose “Commander in Chiefs” have not been the Presidents. §§ D- H. At his May 21, 2009 Senate Intelligence Committee confirmation hearing DNI General Counsel Nominee Litt pledged to implement the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) and comply with the twin statutory mandates to “ensure” that both the President and the Congress are provided timely intelligence based on “all sources available” to the IC and “other appropriate entities” in compliance with Constitution and U.S. laws:
Our nation needs a strong and vital Intelligence Community in order to protect itself from its enemies; but the Intelligence Community equally needs clear rules that define what it can and cannot do. These are twin mandates are reflected in the twin statutory responsibilities of the Director of National Intelligence to ensure both that the President, the Executive Branch and the Congress are provided intelligence that is “timely, objective, independent of political consideration, and based upon all sources available to the intelligence community and other appropriate entities,” and that the activities of the Intelligence Community are carried out in ‘compliance with the Constitution and the laws of the United States.” Id. 1. http://intelligence.senate.gov/hearings.cfm?hearingId=3869
He explained what he learned from the Judges with whom he clerked, his private practice, SDNY U.S. Attorney Fiske as a SDNY AUSA, and at DOJ from AG Reno and DAG Holder his when he made DOJ decisions that complied with the FISA and the CIPA:
I have learned that a lawyer has the responsibility to try to help a client achieve his or her goals within the law, but equally to tell a client forthrightly when a proposed course of conduct is not within the law. I have learned that a lawyer’s duty to a client encompasses first of all a careful, dispassionate analysis and unbiased analysis to determine what thr law actually is. But a lawyer should also exercise independent judgment and advise the client as to the prudence or wisdom of the proposed course of conduct. I have learned that a lawyer for the government has obligations not only to his or her client agency but also to the public at large, and if the client’s proposed action would not serve the public interest, the government lawyer should say so even if that action is legal. Id. 2. Emphasis added.
219 He testified that he would be working with Civil Liberties Protection Officer Joel and establish clear workable DNI rules to be applied by intelligence community employees:
At the same time the collection, analysis and dissemination of intelligence information must be done in a manner that protects constitutional and statutory rights. Again, it is my understanding that the Officer of the General Counsel, along with the Civil Liberties Protection Officer, plays an important role in creating and overseeing the structures and rules that ensure that intelligence activity is consistent with the civil liberties and privacy of Americans. This is one of those areas where it is important to provide clear guidance to the Intelligence Community, so that they know what they can and cannot do and do not feel the need to consult with lawyers on a daily or hourly basis as they do their jobs-which is neither efficient or realistic. Id. 3. Emphasis added.
The “NCTC TSP and PSP data banks access guidelines” could be universally applied by the “Other Intelligence Activities” that were not subject the joint IC IGs July 10, 2009 Unclassified Report on the President’s Surveillance Program. NDI General Counsel Robert Litt could establish a joint task force of the IC General Counsels: NDI General Counsel Litt, Acting NSA General Counsel Vito Potenza, DOD General Counsel Johnson, CIA General Counsel Preston, FBI General Counsel Valerie Caproni, and AAG of the National Security Division Kris. This task force would have access to the July 10, 2009 Classified Report on the President’s Surveillance Program of the IC IGs: DNI Roslyn Mazer, DOJ Glenn Fine, DOD (Acting) Gordon Hedell, CIA (Acting) Patricia Lewis, NSA George Ellard, and DNI Roslyn Mazer, and the “Other Intelligence Activities” noted in the IC’s Report. §§ K, CC. NDI General Counsel Litt knows that CIA General Counsel Preston was from 1993- 1995 DOD Principal Deputy General Counsel and from 1995-1998 the DOJ DAAG responsible for civil litigation in the courts of appeals. He can reconcile the off-OMB funding source of the NSA TSP data banks with 1984 CIA Assistant General Counsel Addington’s Unitary Executive theory and 1981-1985 CIA General Counsel Sporkin’s subsequent 1988 harsh admonition re the HHS nonacquiescence policy as Judge Sporkin in Duggan v Bowen. “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.” §§ K, X, Z, AA, AAA.
NDI General Counsel Litt, the 1996 DAAG of the Criminal Division, and CIA General Counsel Preston, the 1996 DAAG of the Civil Division, can together solve the 1996 Gordon riddle. They can determine whether Associate WH Counsel Astrue provided false testimony to the Senate Finance Committee on June 22, 1989 that the HHS nonacquiescence policy had ended, or AAG of the Civil Division Hunger and SG Days provided false information to the U.S. Supreme Court in the USG’s February, 1996 Gordon Brief in opposition to the petition for a writ of certiorari and their defense of the “Jackson nonacquiescence policy” of HHS General Counsel del Real and the “Ruppert nonacquiescence policy” of HHS General Counsel Astrue. Upon information and belief, they will decide that Associate WH Counsel Astrue’s June 22, 1989 testimony was false, and recommend that President Obama end in 2010 the Jackson and Ruppert “nonacquiescence” policies and the 2010 transitional off-OMB Budget funding of the “do not exist” DOD TSP and PSP data banks with “Jackson nonacquiescence policy” funds. § T.
220 NDI General Counsel Litt, the 1994-1997 DAAG of the Criminal Division, also knows that FBI General Counsel Caproni was the 1994-1998 EDNY Chief of the Criminal Division. He knows that she knows whether he knows why AAG of the Criminal Division Weld in June, 1987 ended the “Fraud Against the Government” investigation of Robert. He knows whether she knows that he knows whether the 1980s DIA-CIA-FBI counterintelligence “plumber” unit had received information from the “do not exist” NSA TSP and provided that information to HHS General Counsel del Real, a covered agent. He knows that she read the Robert VII v DOJ “FISC Robert” classified documents and knows whether AG Meese’s Robert FISC petition for the FISC surveillance warrants informed the FISC of the existence of the “do not exist” NSA TSP. He knows she knows whether AG Meese’s FISC petition for the Robert FISC warrants contained the false facts that the FBI had evidence that Robert was a terrorist or an agency of a foreign power. She knows the name of the command and control officer who requested the connect-the-dots NSLs for Robert’s escrow accounts and his ISP and whether those Robert NSLs are archived along with the Robert VII v DOJ transcripts, §§ M, X, GG. As a result, together they both know that the Robert v Holz, Robert VII v DOJ, and Robert VIII v DOJ, HHS, and SSA withheld classified connect-the-dots documents contain evidence that Robert could use when drafting his putative “Bivens” complaint in which he would name FBI General Counsel Caproni as one of the co-defendants. These are important facts in order to draft universal NCTC Guidelines that contain meaningful checks and balances. § AAA.
NDI General Counsel Litt also knows that AAG of the National Security Division Kris was the 2000-2003 Associate Deputy Attorney General who had supervised the USG’s compliance with the FISA before he honorably resigned. He knows why at the infamous March 10, 2004 meeting with WH Counsel Gonzales, AG Ashcroft did not know that the post-9/11 NSA PSP program was being implemented. He can read the Robert VII v DOJ “FISC Robert” documents, DOJ case file notes, e-mail, OIPR Baker’s “uncorrected” Declaration, and the documents reviewed by OIPR Baker on March 1, 2004 when he made his FOIA Exemption 1 and “Glomar Response” decisions. He can determine whether Robert had 50 U.S.C. §1806(f) standing by applying Justice White’s June 19, 1985 Mitchell v Forsyth, “bright line” opinion that the AG does not have absolute immunity based on a good faith national security defense, and applying Mitchell to AG Meese’s approval of the Robert wiretaps. “We conclude that the Attorney General is not absolutely immune from suit for damages arising out of his allegedly unconstitutional conduct in performing his national security functions.” Id. 520. §§ M, N, AAA. AAG of the National Security Division Nominee Kris submitted answers to Senate Select Committee on Intelligence Pre Hearing Questions re the 50 U.S.C. § 413 reporting duty: Question 1(a): What is your understanding of the obligation of the Attorney General and the Director of the Federal Bureau of Investigation to keep the congressional intelligence committees, including all their Members, fully and currently informed?
Answer: The basis obligation imposed by Section 502 of the National Security Act of 1947 is to keep the two intelligence committees “fully and currently informed” of all U.S. intelligence activities (except covert operations that are covered by section 503) including “significantly anticipated intelligence activities” and “significant intelligent failures.”
221 This section clearly contemplates that the committee will be notified of all “significant” intelligence activities before they are undertaken. These obligations are conditioned by the opening phrase in this section that says “to the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive sources and methods or other exceptionally sensitive matters.” I interpret this phrase to provide the government with a degree of latitude in deciding how (not whether) it will bring extremely sensitive matters to the committees’ attention. In such cases, it may be prudent to begin by notifying the leaders and staff directors of the intelligence committees and attempt to reach an accommodation with them in terms of how and when the committee as a whole should be brought into the matter in question.” Id. 2. Emphasis Added. http://intelligence.senate.gov/090310/responses.pdf.
AAG of the National Security Division Kris knows whether President Obama has complied with his National Security Act, 50 U.S.C. § 413 (a), reporting duty and informed the Intelligence Committees that the “Other Intelligence Activities” include the military’s access to the “do not exist” 1984-2001 NSA TSP data banks. If not, AAG of the Civil Division Kris may suggest that the NCTC Guidelines be included in President Obama’s 50 U.S.C. § 413 (b) duty to file a “corrective action” plan to cure the prior illegal violations of the “exclusivity provision” of the FISA and the PCA. In this way, in 2011 there would be Article II checks and balance to the DOD Cyber Command military officers violating the PCA and FISA when accessing the “do not exist” pre-9/11 NSA TSP data banks for “law enforcement” purposes given President Bush’s 2005 admission of the NSA PSP violation of the “exclusivity provision” of the FISA. §§ K, CC. These NCTC Guidelines would not be a “wall” that shielded intelligence information from domestic “law enforcement” information. Quite the contrary, the NCTC Guidelines would incorporate the National Security Act Amendments of the 2009 which require IC information sharing. However, there would be written NCTC Guidelines when the 1984-2010 NSA TSP and PSP data banks are accessed. As per the FBI’s DIOG, there would be written standards that a putative FISA “aggrieved person” could cite in a request for § 1.5 declassification and § 1.7 misclassification decision to secure the release of documents that reveal the violation of the FISA when USG attorneys in concert have implemented the “Barrett nonacquiescence policy” to prevent Article III review of documents that reveal the violations of the FISA. §§ D, G, AAA.
After NDI General Counsel Litt reads the Robert VII v DOJ “FISC Robert” classified documents, case file notes and e-mails, he will know why NCTC Guidelines should include a mechanism that eliminates the need for DOJ attorneys to implement the “Barrett nonacquiecence policy” and deceive Article III Judges. He will learn from the Robert VII v DOJ case file notes and e-mails whether AAG of the Civil Division Keisler had intentionally withheld facts from the Second Circuit in AUSA Mahoney’s April 3, 2006 letter-Brief for the purpose of deceiving the Court. He will learn whether the 2006 decision to implement the “Barrett nonacquiescence policy” was not to protect the “secret” of NSA PSP because President Bush had revealed that “secret” to the world in December, 2005. Rather, he will learn that AAG of the Civil Division Keisler implemented the “Barrett nonacquiescence policy to maintain the classified fact that the “do not exist” 1984-2005 NSA TSP and PSP data banks were funded with off-OMB Budget “Jackson nonacquiescence policy” funds in violation of the Social Security Act. §§ C, P, Q, Z.
222 If the Robert VIII v DOJ, HHS, and SSA appeal is reinstated, then the 2006 interplay of the 50 U.S.C. §1806 (f) standing issue, the “Barrett nonacquiescence policy”, and the “fraud upon the court” issue, will be presented to the Second Circuit. The appellant will argue that pursuant to the Second Circuit’s Doe I and Doe II, Doe v Mukasey, and Dinler v City of New York decisions, the Robert VIII v DOJ, HHS, and SSA injunction should be vacated and Judge Garaufis should read in camera the FOIA requested Robert classified documents he asserts will prove that DOJ attorneys had withheld material facts from Judge Garaufis for the purpose of deceiving Judge Garaufis. Hence, the importance of AAG of NDI General Counsel Litt, the former-DAAG of the Criminal Division, reading the Robert VII v DOJ “lessons learned” documents in a Circuit that reads in camera withheld classified documents. §§ MM, PP, XX.
Because NDI General Counsel Litt possesses the Chilicky “normal sensibilities” of human beings, he will make sure that “NCTC TSP and PSP data banks access guidelines” have a remedy to cure the collateral damage visited upon U.S. citizens by a breach of the NCTC Guidelines. Ironically, if there had been a 1980s remedy for the breach of the appellant’s First Amendment right of access to the Courts, then the Robert v Holz documents would have been released based on Mitchell v Forsyth, 472 U.S. 511 (1985), with limited financial exposure. However, the 2010 financial exposure will be much greater because the Robert v Holz and Robert VII v DOJ documents, subject to in camera Article III review, contain smoking gun evidence of a HHS clandestine policy that triggers the 1986 Bowen v City of New York equitable tolling remedy for millions of 1994-2010 Ford v Shalala class members. §§ P, Q.
In his July 20, 2010 Senate Intelligence Committee confirmation hearing opening statement, Under Secretary of Defense for Intelligence- NDI Nominee Clapper, explained his commitment to keeping the Intelligence Committees “fully and currently” informed:
Additionally, keeping this Committee “fully and currently” informed is not an option. It is the law, and it is our solemn obligation. I was a young Air Force Officer at NSA in the seventies, and watched the Church-Pike hearings, which led to, among other things, the establishment of the intelligence oversight committees in both Houses of Congress. I am a strong believer in the need for an informed Congress. I say this not only as an intelligence-career professional, but as a citizen. I have interacted with the intelligence oversight committees since the mid-eighties in several capacities. If confirmed, I would seek to forge a close partnership with the oversight committees. Id. 5-6. Emphasis added. http://intelligence.senate.gov/100720/clapper.pdf
In his pre-hearing June 7, 2010 Questionnaire for Completion by Presidential Nominees, he explained how the oversight process was a check and balance on the National Intelligence Program (NIP) and Military Intelligence Program (MIP):
The oversight process provides a necessary check and balance structure ensuring that Intelligence Community resources—split between the National Intelligence Program (NIP) and Military Intelligence Program (MIP)—are appropriately aligned with national priorities. The relationship
223 between the Intelligence Community and its Congressional overseers is mutually beneficial; the obligation of the overseers is to ensure that nation’s security, as well as to be vigilant for potential abuses—particularly in the area of civil liberties. Id. Q. 48. Emphasis Added. http://intelligence.senate.gov/100720/clapperqfrs.pdf
In his pre-hearing June 7, 2010 Questionnaire, he explained his Article II duty to provide timely and accurate intelligence information to President Obama:
The DNI is responsible to the President for the performance of the entire Intelligence Community as an enterprise to ensure, ultimately, that decision makers-from the White House to the fox hole—are provided accurate, timely intelligence. This entails supervision and oversight of all aspects of the enterprise: substantive analysis, resource management, intelligence policy development, operational effectiveness, and compliance with the law. The DNI also serves as the principal intelligence advisor to the President and is responsible for ensuring that the Congress is able to carry out its oversight of the Intelligence Community. Id. Q. 49. Emphasis Added.
In his June 7, 2009 Additional Prehearing Questions, he explained the NDI’s duty to monitor activities of the IC to ensure the appropriated funds are used as allocated:
The DNI’s responsibility for the National Intelligence Program (NIP) entails building and shaping the NIP and monitoring the activities undertaken by elements of the intelligence community to ensure that appropriated funds are, in fact, allocated and spent in accordance with the National Intelligence Program budget, and that they are achieving objectives. Should elements of the community wish to allocate and spend funds that have been appropriated for a different purpose the DNI must approve such transfers or reprogramming in accordance with applicable law. If the DNI should find that appropriated funds are not being allocated or spent as provided by the National Intelligence Program, it is his responsibility to address such failures with the head of the department or agency concerned, and, if a suitable resolution of the matter cannot be found, to report the matter to the President and Congress. Id. 1-2. Emphasis Added. http://intelligence.senate.gov/100720/clapperpre.pdf
He explained his retired military officer experience to exercise civilian control over the military and develop standards counter-intelligence standards for the military:
As the Under Secretary of Defense for Intelligence, I helped exercise civilian control over the military, served as Program Executive for the Military Intelligence Program, and developed and promulgated standards and policy across the entire range of intelligence, counter-intelligence, and security dimensions of the DoD. Id. 5. Emphasis Added.
224 As to the concern that as a former-DIA Director and military officer he would be biased to the Military Intelligence Program (MIP) at the expense of the National Intelligence Program (NIP), he explained that his decades of DOD experience will make him a more effective NID:
I served as Chief of Air Force Intelligence, so I understand this domain as well, from personal experience. Having served as a Director for two these agencies (DIA and NGA), and having spent a great deal time in NSA, both on active duty, and subsequently, after retirement on the NSA Advisory Board, I believe I have a thorough understanding of the distinct roles each of these organizations play both in the Department, as well as in the IC. I tried to use the “double-hat” I wore as the DNI’s Director of Defense Intelligence, as a “bridging” capacity, to help the DNI manage the DOD intelligence components. Id. 6. Emphasis Added.
As to his review of the NCTC’s Christmas, 2009 performance as to information sharing, he commented on the need for an integrated depository for terrorism data:
NCTC has gained greater access to data since 12/25 and has accelerated efforts to integrate terrorism data, making solid progress in consolidating information and applying tools to streamline searches and correlate data. However, an integrated repository of terrorism data, capable of ingesting terrorism-related information from outside resources, remains necessary to establish a foundation form which a variety of sophisticated technology tools can be applied. These capabilities help automate the display of links and alerts, as well as provide a mechanism for visualizing complex relationships. Id. 16. Emphasis Added.
He noted NID General Counsel Litt was developing special FISA rules re U.S. persons:
3. U.S. Persons Rules and FISA handling procedures: The ODNI Office of General Counsel is also leading an interagency effort to assess, refine, and clarify U.S. Person rules and procedures for handling information obtained under FISA to improve IC information sharing, including with respect to SIGINT. By conducting extensive interviews of IC analysts and attorneys, ODNI/OGC has been working to identify each of the specific issues that need to be resolved. The next step is to prioritize these issues and assign them to ODNI offices, IC elements, as well as other U.S. Government entities, to identify and carry out solutions to these critical problems.
NSA continues to work with the Department of Justice and FIB to fully leverage all current authorities to accomplish its counterterrorism mission and effectively share USP information consist with the law. Id. 17. Emphasis Added.
He explained how he would use DNI General Counsel Litt to assist him in ensuring that there was compliance with the Constitution and all federal laws:
225 As the ODNI’s chief legal officer, the General Counsel assists the DNI by ensuring that all ODNI practices comply fully with the Constitution and laws of the United States, including all relevant Executive Branch regulations, orders, guidelines, and policies. This includes vigilantly advising the DNI, who in turn advises the President, to ensure that the Administration’s statutory reporting obligation to keep Congress “fully and currently” informed of all intelligence activities is strictly followed. To do this the General Counsel should have visibility into any IC activity that implicates the Constitution, legal, or regulatory equities.
Moreover, the General Counsel is responsible for working with IC elements’ General Counsels General to ensure that he country’s intelligence operations are also in full compliance with these legal obligations.
Finally, the General Counsel is also a necessary participant in developing directives and policies for the IC. Id. 23-24. Emphasis Added.
He explained how he would use ODNI Privacy and Civil Liberties Protection Officer Joel:
The Civil Liberties Protection Officer’s responsibilities include ensuring that the policies and procedures of IC elements incorporate appropriate privacy and civil liberties protections; overseeing compliance by the ODNI with privacy and civil liberties protections (including under the Privacy Act); ensuring that the use of technology sustains privacy protection for personal information; investigating complaints; and providing advice and oversight relating to privacy and civil liberties matters with ODNI’s purview. Id. 24. Emphasis Added. ….
The responsibility of protecting privacy and civil liberties is not that of this Officer alone. It is a responsibility that is shared by every IC professional. It is as mission imperative. We cannot accomplish our mission without the trust of the Congress and the American people. To earn and retain that trust, we must demonstrate that we can use the authorities we have in a manner that exemplifies American’s values and protects privacy and civil liberties. Id. 25. Emphasis Adde.
He noted that the domestic NDI counter-intelligence programs were under-resourced:
Yes, I believe IC funding is properly allocated. But, if confirmed, I will carefully review the composition of the National Intelligence Program (NIP), with special attention paid to the appropriate balance of funding across IC capabilities and missions to execute the National Security Strategy. With respect to counter-intelligence, I consider this area under- resourced, and, if confirmed, will do what I can to bolster allocation of resources to this crucial area. Id. 34. Emphasis Added.
226 He noted how the annual disclosure of aggregate intelligence appropriations and declassification standards, including the 25 year rule, would impact on NDI decision-making:
This section has been implemented most prominently in the IC through Intelligence Community Directive 710, ‘Classification and Control Markings System”. This policy directs the IC to implement classification in a judicious manner to protect our nation’s secrets while ensuring information is available to those how need it without delay or unnecessary restriction. …
Regarding other classified information held by the intelligence community, I support the existing policy calling for systemic review of all information deemed to constitute “permanently valuable records of the government” as it reaches 25 years of age. While much intelligence information remains sensitive even at 25 years, that which can be released to the public should be. Intelligence—especially the intelligence that informed key policy decisions –can and should ultimately become part of the country’s historical records. The ODNI and members of the IC currently advise the National Declassification center on balancing the advantages and risks of declassification of such historical information. Id. 42. Emphasis not added.
He noted the relationship of the ODNI with the FBI National Security Branch (NSB):
As is the case for all members of the IC, the FBI follows the DNI’s intelligence collection priorities as expressed in the National Intelligence Priorities Framework. The DNI is consulted on the appointment of the NSG Executive Assistant Director and can recommend his or her removal. The NSB, together with the Department of Justice’s National Security Division, has the responsibility for ensuring all national security information that is collected by the FBI is shared with the IC and the larger National Security Community, consistent with the Intelligence Reform and Terrorism Prevention Act (IRTPA). Id. 49. Emphasis Added.
He noted the relationship of the ODNI with AG Holder:
While the DNI has broad authority to set priorities for planning, budget and management of the intelligence community across the whole spectrum of activities, the Attorney General sets the guidelines and provides oversight for domestic intelligence and counter-intelligence activities, and supervises the intelligence activities of the Federal Bureau of Investigation, the lead agency for domestic counterterrorism investigations. Additionally, the Attorney General has the authority, in coordination with intelligence community element heads, to establish guidelines for reporting violations of federal laws by intelligence community employees. Id. 51. Emphasis added.
227 He noted the relationship of the OMB with the ODNI counterintelligence activities:
The DNI has broad responsibilities to collect (overtly or thorough publicly available sources), analyze, produce, and disseminate counterintelligence to support the missions of the ODNI and other national missions. The National Security Counterintelligence Executive (NCIX), a component of the ODNI, serves as the head of the counterintelligence for the United States Government. The primary responsibilities of the NCIX include producing the National Counterintelligence with regard to transfer or programming of NIP funds is also subject to the approval of the Director of OMB. Section 102A (c) establishes the Director of OMB shall allocate the funds within the NIP as the “exclusive direction” of the DNI. Additionally, the ODNI, like other Federal agencies, complies, as applicable, with general OMB guidance and policies for implementation of various Federal laws, including the Freedom of Information Act (FOIA), the Privacy Act, and the Federal Information Security Management Act (FISMA). Id. 53-54. Emphasis Added.
He noted the relationship of the NID and OMB re the consolidated IC budget:
In this latter role, the DHI has specific authorities to guide elements of the intelligence community-most of whom reside in other government departments-for the overall effectiveness of the national intelligence effort. For example, the DNI provides budget guidance to these elements and ultimately approves and presents a consolidated budget to Congress. The DNI is also authorized to provide budget guidance for any element of the intelligence community that is not in the NIP. The DNI must approve all transfers and reprogramming of appropriated funds; the DNI also has the authority to propose transfers of personnel among intelligence agencies. Id. 54. Emphasis Added.
He noted the relationship of the NID and DOJ re FISA compliance:
The IC has certain statutory collection authorities that are vital to its mission, and that also include protections for privacy and civil liberties. The Foreign Intelligence Surveillance Act (FISA) is prominent among these authorities. I believe the ODNI should engage with the Department of Justice in ensuring that the IC as a whole is in a sound compliance posture under the FISA. Id. 55. Emphasis Added.
He made crystal clear his duty to comply with the Constitution and all laws, and his investigation of allegations of First and Fourth Amendment violations or other IC wrongdoing:
The DNI must always lead by example. If confirmed, I will make clear from the start that I will fully comply with the Constitution and other laws of the United States, and that I expect all members of the Intelligence
228 Community to doe so as well. I will hold Intelligence Community element heads responsible for Constitutional or statutory violations occurring in their agencies.
If confirmed as the DNI, I would consult with the ODNI Civil Liberties Privacy Officer and the ODNI General Counsel in any matter which could have ramifications under the First or Fourth Amendments. I would utilize the capabilities of the Inspector General to help me address any allegations of wrongdoing, and I also will not hesitate to consult with the Attorney General. If confirmed, I would encourage the IC elements to make use of resources within their own organizations, and I will work directly with IC offices to ensure that adequate compliance measures are in place.
I understand that at least two agencies have recently implemented new approaches to compliance. NSA has the Office of Oversight and Compliance, which works in partnership with NSA’s OGC and OIG to ensure signals intelligence activities are compliant with applicable legal and policy requirements. The FBI has the Office of Integrity and Compliance which helps ensure that there are compliance processes in place for priority programs. Other IC elements rely on intelligence oversight offices, OGCs, OIGs, privacy and civil liberties offices, Intelligence Oversight Board reporting, and related efforts to provide compliance.
If confirmed, I will consult with the General Counsel, the Civil Liberties Protection Officer, and the Inspector General to consider IC compliance approaches, including lessons learned from different models. Id. 56.
The appellant looks forward to DOD Under Secretary for Intelligence Clapper’s confirmation as DNI Director. After he is sworn in as DNI, the appellant will file a de novo and updated complaint with Civil Liberties Protection Officer Joel. He will inform DNI Clapper of the fact that in January, 2007 Civil Liberties Protection Officer Joel’s command and control officer had ordered him not to docket Robert’s January 5, 2007 complaint. §§ M, AAA.
DNI Clapper will have an opportunity recommend to President Obama that the 2010 Project National Security Reform Report Recommendations 7.3 be implemented. Recommendation 7.3 is that the NCTC Director be vested with overseeing all USG counterterrorism funding. “Recommendation 7.3: Through Executive Order, vest the director of NCTC with the responsibility to oversee all USG counterterrorism funding as an analytical arm of OMB and recommend such realignment to OMB and the NSC.” Emphasis Added.
DNI Clapper will be deciding whether the 2011 OMB calendar year funding source for the 1984-2010 “do not exist” NSA TSP and PSP data banks should be off-OMB Budget “Jackson nonacquiescence policy” funds or classified OMB Budget funds. Upon information and belief, because he possesses the Chilicky “normal sensibilities, DNI Clapper will recommend reallocated NIP or MIP funds to pay for the NSA TSP data banks. §§ K, Z, CC.
229 DNI Clapper will consult with DNI General Counsel Litt. Upon information and belief, DNI General Counsel Litt will advise DNI Clapper that the reallocation of NIP or MIP funds to pay for the 1984-2010 “do not exist” NSA TSP and PSP data banks, is an Article II decision that is consistent with Free Enterprise Fund v Public Company Accounting Oversight Board. Upon information and belief, he will advise that President Obama’s reallocation of NIP or MIP funds could be based on Chief Justice Roberts’ “thr buck stops with the President” holding being applied to the 2010 funding of the universe of classified NIP and MIP intelligence programs.
NDI Director Clapper will be able to provide President Obama with the answer to the riddle of the 2002-2005 “immaculate construction” NSA PSP funding source. He will explain that the 2002-2005 off-OMB Budget source was the same as used in 1992-1995 when he was 1992-1995 Director of the DIA. Then President Obama will learn the name of the 2010 “Commander in Chief” of the OMB “command and control” officer of OMB FOIA Officer Hardy, and the content of 1982-2009 “OMB Jackson” documents which reveal where the 2009 “Jackson nonacquiescence policy” funds were diverted. Because the buck stops with President Obama, he should be making the decision whether off-OMB Budget unaudited HHS funds should be Cyber Command transition funds until using classified OMB FY 2012 funds. § Q.
Pursuant to Free Enterprise Fund, the “buck” does not stop with the 2009-2010 daisy chain of shadow government patriots’ “Commander in Chief” of the OMB command and control officer of the OMB FOIA Officer Hardy who ordered her to use the “Glomar Response” defense to withhold the 1982-2010 “OMB Jackson” documents. Since President Obama is the Commander in Chief of all WH OMB employees, DNI Clapper, the 2009 Under Secretary of Defense, will be able to identify for WH Deputy Assistant to the President and Deputy National Security Adviser for Homeland Security and Counterterrorism John Brennan any 2010 fifth column OMB staff whose “Commander in Chief” is not President Obama. § N.
Pursuant to Free Enterprise Fund, the “buck” also stops with President Obama if the DOD Cyber Command military officers violate the PCA or the FISA by accessing the “do not exist” NSA TSP and PSP data banks, administered by DOD Cyber Command Commander-NSA Director Lt. General Alexander, in breach of the DNI “NCTC TSP and PSP data banks access guidelines” that should dovetail with the Guidelines for Domestic FBI Operations and the DOD “NSA TSP and PSP data banks access guidelines”. DNI General Counsel Litt will be able to provide NDI Clapper with a “lessons learned” set of facts by his “Past is Prologue” analysis of the 1980s withheld classified Robert v Holz and Robert VII v DOJ FOIA connect-the-dots documents. He can provide a vertical, horizontal, and time analysis and name the USG officials who made the 1986 and 2006 decisions to implement the “Barrett nonacquiescence policy” and withhold material facts from the Second Circuit in the USG’s April 3, 2006 letter-Brief arguing that Robert was not a FISA “aggrieved person” who had 50 U.S.C. § 1806 (f) standing. § AAA.
Hence, the importance of U.S. Attorney Lynch reviewing the FOIA requested “NCTC’s TSP and PSP data banks Access Guidelines” and applying AAG of the OLC Dellinger’s April 5, 1994, Use of Military Personnel for Monitoring Electronic Surveillance, and his February 14, 1995, Standards for Searches Under Foreign Intelligence Surveillance Act, OLC opinion standards. When in August, 2010 AG Holder considers the quiet settlement offer, he should know whether NCTC Guidelines prevent 2010 First Amendment violations. § AAA.
230 EE. Acting HHS General Counsel Childress’ duty to read the de novo HHS FOIA requested HHS documents prior to recommending to HHS Secretary Sebelius whether she should accept the quiet settlement offer that would “make true” co-appellee SSA Commissioner Astrue’s sworn January 24, 2007 Senate testimony
Acting HHS General Counsel Childress’ duty to read the de novo HHS FOIA requested HHS documents prior to recommending to HHS Secretary Sebelius whether she should accept the appellant’s quiet settlement offer that would make true co-appellee SSA Commissioner Astrue’s sworn January 24, 2007 Senate testimony. Acting HHS General Counsel Mark Childress will learn whether a 2010 HHS stovepipe has bypassed HHS Secretary Sebelius in order that she not learn whether HHS General Counsel del Real had been a covered agent whose “client” and command and control officer was CIA Director Casey. U.S. Attorney Lynch and Acting HHS General Counsel Childress can inform HHS Secretary Sebelius why SSA Commissioner Astrue’s false February 22, 1989 and January 24, 2007 Senate Finance Committee testimony triggers the application of the Bowen v City of New York “clandestine” policy for 2010 Ford v Shalala class members. §§ A, B, C, E, P, Y, Z. Because HHS Secretary Sebelius is the Ford v Shalala successor defendant, U.S. Attorney Lynch has a duty to present the quiet settlement offer through Acting HHS General Counsel Childress. He has access to the HHS General Counsel archives re the implementation of the 1982 “Jackson nonacquiescence” policy” of HHS General Counsel del Real and the 1990 “Ruppert nonacquiescence policy” of HHS General Counsel Astrue. As a result, Acting HHS General Counsel Childress knows that the sworn Senate Finance Committee testimony of Associate WH Counsel Astrue that the HHS “nonacquiescence policy had ended at his June 22, 1989 HHS General Counsel confirmation hearing and of SSA Commissioner Astrue Nominee Astrue at his January 24, 2007 confirmation hearing, remains in July, 2010 as uncured false testimony. He knows that HHS Secretary Sebelius cannot make a reasoned Robert VIII v DOJ, HHS, and SSA decision without knowing this fact that affects the Ford class. §§ C, R, S, T. Acting HHS General Counsel Childress was the General Counsel for the Senate Health, Education Labor and Pensions Committee under Sen. Ted Kennedy. Therefore, he understands the Unitary Executive and separation of powers issues when the Congress enacts federal legislation, such as the SSI program, that the HHS Secretary is to equally implement in all 50 States. He will understand why the April 21, 1986 Jackson SSI income regulation, 20 C.F.R. 416.1130 (b), should be equally applied to 2010 Ford v Shalala class members. §§ C, R, U.
Acting HHS General Counsel Childress will read SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee testimony and know that this false testimony could be cured by the quiet settlement offer whereby he makes true his testimony. If that testimony is not cured, then he will have his own 28 U.S.C. 535(b) duty to report this crime to AG Holder:
(b) Any information, allegation, matter, or complaint witnessed, discovered, or received in a department or agency of the executive branch of the Government relating to violations of Federal criminal law involving Government officers and employees shall be expeditiously reported to the Attorney General by the head of the department or agency, or the witness, discoverer, or recipient, as appropriate, .. Emphasis Added.
231 Both U.S. Attorney Lynch and Acting HHS General Counsel Childress have a duty to inform HHS Secretary Sebelius, their client, that the 2010 HHS “nonacquiescence” policy of SSA Commissioner Astrue tracks back to the false July 25, 1985 House Judiciary testimony that the “nonacquiescence” policy had ended on June 3, 1985. They both have a duty to inform their client whether HHS General Counsels Robertson (1985-1988), Sterrett (1988-1989), Astrue 1989-1989, Raab (1993-20001), Azar (2001-2005) Meron (2006-2007), Acting Cade (2008), and Acting Barker (2008-2009), had known that HHS General Counsel del Real had been a 1981-1985 DIA-CIA-FBI covered agent. This is an important fact in order that HHS General Counsel Sebelius, who has clearance to read classified documents, knows whether the 1981-2010 HHS stovepipe was implemented with their knowledge. §§ G, K, X, Y, Z, AA.
Needless to say, they have a duty to inform HHS Secretary Sebelius if they learn that her Robert v DOJ, HHS, and SSA co-appellee SSA Commissioner Astrue was a 1989-1993 covered agent when he extended HHS General Counsel del Real’s 1982 “Jackson nonacquiescence policy” to the “Ruppert nonacquiescence policy” of 1990. HHS Secretary Sebelius should know if he is a 2010 covered agent who is “rigging” the 2010 SSA computer to apply the Jackson and Ruppert nonacquiescence standards with a license to lie to the Senate Finance Committee, President Obama, and Judges in order that the off-OMB Budget funding for the “do not exist” 1984-2010 NSA TSP and PSP data banks continues through to FY 2012. §§ K, Z, CC.
Both U.S. Attorney Lynch and Acting HHS General Counsel Childress have a duty to inform HHS Secretary Sebelius, their client, that former-CIA General Counsel Judge Sporkin’s Duggan v. Bowen, 691 F. Supp. 1487 (D.C.D.C. 1988), admonition made to HHS Secretary Bowen could be made to HHS Secretary Sebelius because the 2010 Jackson and Ruppert nonacquiescence policies continue to be applied to millions of Ford v Shalala class members:
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.
One of the purposes of the de novo FOIA requests is to prove to Acting HHS General Counsel Childress that SSA Commissioner Astrue knows his own June 22, 1989 and January 24, 2007 Senate testimony was false. His July, 2010 mens rea is the trigger for the Bowen v City of New York “clandestine” policy remedy. When HHS Chief FOIA Officer Acting Assistant Secretary for Public Affairs Bill Hall applies AG Holder’s March 19, 2009 presumption of disclosure standard, he will seek legal guidance from Acting HHS General Counsel Childress. Because Acting HHS General Counsel Childress has the Chilicky “normal sensibilities” of human beings, he may recommend that HHS Secretary Sebelius agree to the Robert VIII v DOJ, HHS, and SSA quiet settlement which includes withdrawal of all 2010 FOIA requests. §§ P, Q.
Because HHS Secretary Sebelius also possesses the Chilicky “normal sensibilities” of human beings, if HHS Secretary Sebelius does not accept the quiet settlement offer, then this is evidence that U.S. Attorney Lynch knows the 2010 “stovepipe” bypasses HHS Secretary Sebelius. Then in the reinstated appeal, U.S. Attorney Lynch will be defending HHS Sebelius without knowing her own client’s position on the quiet settlement offer. §§ E- I.
232 As per the July 27, 2010 de novo HHS FOIA request, the HHS “1982 -1985 Jackson nonacquiescence policy” documents process by which the decisions were made that the Seventh Circuit had “incorrectly” decided Jackson and that the remedy should be an amended regulation that only applied to the Seventh Circuit states. These documents reveal whether the “Jackson nonacquiescence policy” decisions were made by HHS Secretaries Schweiker, Heckler, and Bowen, or by HHS General Counsels del Real and Robertson. This is a critical 2010 attorney- client fact issue if the mosaic of documents prove that HHS General Counsel del Real was a covered agent and his “client” was CIA Director Casey. If HHS General Counsel del Real was a covered agent when he made 1982-1985 “Jackson nonacquiescence policy” decisions, then this is the clandestine ” policy fact that triggers the 1986 Bowen v City of New York remedy for millions of 1994-2010 Ford v Shalala class members. §§ C, E-H, P, Y, Z, AA. As per the July 27, 2010 de novo HHS FOIA request, the 1985-1988 HHS “Robert v Holz ‘Fraud Against the Government’ investigation” documents reveal the reason why HHS General Counsel del Real initiated the investigation of Robert seeking his incarceration and disbarment. U.S. Attorney Lynch and Acting HHS General Counsel Childress will learn the information that HHS General Counsel del Real received from the six Special Agents that he assigned to interrogate, ex parte, Robert’s aged, blind, and disabled clients to learn the legal advice that Robert provided and fees charged. They will also learn whether HHS General Counsel Robertson received information from the DIA-CIA-FBI counterintelligence “plumber” unit that the “plumbers” received from the unwarranted NSA TSP and the FISC warrants. § M. As per the July 27, 2010 de novo HHS FOIA request, the 1986 HHS “universe of April 21, 1986 Jackson regulation comments” documents reveal the knowledge of 1983-1986 Acting SSA Commissioner Mc Steen and SSA Chief Counsel Gonya of the public comments that the “Jackson” regulation, 20 C.F.R. 416.1130(b) should apply equally in all 50 States. These are important documents because of the sworn July 25, 1985 House Judiciary Subcommittee testimony of Acting SSA Commissioner Mc Steen and SSA Chief Counsel Gonya that the nonacquiescence policy had ended and that Jackson was not a “nonacquiescence” case. There is a duplicate July 27, 2010 SSA FOIA request in order to determine the interplay between HHS and SSA when SSA was a sub-agency of HHS. This is in order that Acting HHS General Counsel Childress determine the 1986 mens rea of 1986 Legal Counsel to the SSA Deputy Commissioner for Programs Astrue and 1986-1988 Counselor to the SSA Commissioner Astrue before HHS General Counsel Nominee Astrue presented his June 22, 1989 testimony. §§ C, P.
As per the July 27, 2010 de novo HHS FOIA request, the 1987 HHS “IMC Investigation Final Report” document is HHS IG Kusserow’s 1987 copy of the joint FBI-DOJ-HHS task force that was investigating “Fraud Against the Government” at IMC. Acting HHS General Counsel Childress will learn why AAG of the Criminal Division Weld terminated the joint FBI-DOJ- HHS investigation of IMC after he read the “Perot” documents and prior to HHS IG Kusserow’s December 15, 1987 testimony before the House Committee on Government Operations Report which conducted its own “Fraud Against the Government” investigation of IMC. The HHS copy is being requested because in Robert v DOJ and SSA, AG Judge Mukasey’s DOJ FOIA Officer could not locate the FOIA requested DOJ copy of the “IMC Investigation Final Report” document. The fact issue of whether the DOJ FOIA Officer had conducted a sham due diligence search for this document, will be one of the issues presented to the Second Circuit in the Robert VIII v DOJ, HHS, and SSA reinstated appeal. Hence, the importance of the HHS IMC “Investigation Final Report” document if the DOJ and FBI copies were purged. §§ E, F, G, Y, II.
233 As per the July 27, 2010 de novo HHS FOIA request, the 1990 HHS “Ruppert Acquiescence Ruling” supporting documents reveal why HHS Secretary Sullivan made his decision to adopt the “Ruppert Acquiescence” Ruling in response to the Second Circuit’s March 29, 1989 Ruppert decision. These 1990 documents reveal the mens rea of HHS General Counsel Astrue given his June 22, 1989 Senate Finance Committee testimony as the HHS General Counsel Nominee that the nonacquiescence policy had ended. Given SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee testimony, Acting HHS General Counsel Childress can determine whether Robert’s 1989 assertion in Ruppert that the USG attorneys made “Janus-faced” representations to Second Circuit was true because the “Ruppert Acquiescence” Ruling documents contain fraud upon the court evidence. These documents provide AG Holder with evidence to answer the Jackson question and solve the Gordon riddle when he reviews 2007 AAG of the Civil Division Keisler’s Ford v Shalala remedy that SSA Commissioner Astrue has implemented from 2007-2010. § C, G, S, T.
As per the July 27, 2010 de novo HHS FOIA request, the 1991 HHS “Navarro nonacquiescence policy” documents reveal whether any HHS General Counsel had determined that Judge Nickerson had “incorrectly” decided Navarro v. Sullivan, 751 F. Supp. 349 (E.D..N.Y. 1990). Acting HHS General Counsel Childress will learn that Region II HHS Chief Regional Counsel Blum ratified the NYS AG’s Civil Recovery Bureau (CRB) 1991-2008 decisions to violate 20 C.F.R § 416.1201 and seize the resources of disabled persons which Congress intended to be transferred into Supplemental Needs Trusts. He will also learn that HHS Chief Blum ratified the decision of AG Spitzer’s Counsel David Nocenti, the 1986-1990 EDNY AUSA, that the AG’s CRB could retain the federal government’s 50 % share “incorrectly” provided Medicaid that was not reimbursed to the HHS Secretaries. He will learn whether NYS had violated the NYS Medicaid Plan from 1991-2010. §§ D, F, G, H, I, X, AAA.
As per the July 27, 2010 de novo HHS FOIA request, the 2004 HHS “CMS Jackson” documents not adjudicated in Robert II v HHS, 217 Fed. Appx. 50 (2d Cir. 2007), reveal HHS Chief Blum’s knowledge of NYS’s use of the Medicaid “priority” lien standard rather than the federal “pro rata share” lien standard. Acting HHS General Counsel Childress will learn who withhold the “CMS Jackson” documents from Judge Irizarry given the content of the documents which confirmed Robert’s assertion that NYS was using the wrong lien standard. §§ E -H, AAA.
As per the July 27, 2010 HHS FOIA request, the 2007 “Ahlborn nonacquiescence policy” documents reveal the actions taken by HHS IG Levinson when he was placed on Notice that the NYS Medicaid Plan had been in violation of federal regulations by its use of the “priority” lien standard. Acting HHS General Counsel Childress will learn why HHS Chief Blum ratified NYS AG Counsel Nocenti’s implementation of the NYS Arkansas Department of Human Services v Ahlborn, 125 S. Ct. 1742 (2006), “nonacquiescence” policy. He will also learn who made the decision that HHS IG Levinson should not investigate Robert’s complaint of violation of the NYS Medicaid Plan and that HHS Secretary Shalala was not applying the same federal regulations to the NYS Medicaid plan that HHS Secretary Shalala applied to the California and Washington State Medicaid plans when she fined the each state millions of dollars for their violations of the federal Medicaid lien regulations NYS was violating. §§ E, F, G, X., AAA. HHS Chief FOIA Officer Hall will read these July 27, 2010 FOIA requested documents. Therefore, U.S. Attorney Lynch should know the content of these “smoking gun” documents.
234 FF. Acting SSA General Counsel Black’s duty to read the July 27, 2010 FOIA requested SSA documents that prove whether SSA Commissioner Astrue’s January 24, 2007 Senate testimony was false, prior to recommending to SSA Commissioner Astrue, their client, whether he should accept the appellant’s Robert VIII v DOJ, HHS, and SSA quiet settlement offer and “make true” his Senate testimony
U Acting SSA General Counsel David Black has a duty to read the July 27, 2010 FOIA requested SSA documents that prove whether SSA Commissioner Astrue’s January 24, 2007 Senate testimony was false, prior to recommending to SSA Commissioner Astrue, their client, whether he should accept the appellant’s Robert VIII v DOJ, HHS, and SSA quiet settlement offer and “make true” his sworn Senate testimony. When U.S. Attorney Lynch reads the July 27, 2010 FOIA requested documents along with the 2001-2007 Ford v. Shalala, 87 F. Supp 2d 163 (E.D.N.Y. 1999), case file notes and e-mails, she will know whether SSA Commissioner’s January 24, 2007 Senate Finance Committee testimony remains as uncured July, 2010 false Senate testimony for which she will have a 28 U.S.C. § 535 (b) duty to inform AG Holder in her settlement memo. §§ A, B, C, D, G, H, GG,
Acting SSA General Counsel Black is also the SSA Chief FOIA Officer. Therefore, he has a duty to apply AG Holder’s March 19, 2009 presumption of disclosure standard to the FOIA requested SSA documents. Given the gravity of the FOIA requester’s allegations, he has his own 28 U.S.C. § 535 (b) duty to report to AG Holder if the FOIA requested documents that he reads prove that SSA Commissioner Astrue’s June 22, 1989 and January 24, 2007 Senate Finance Committee testimony that the “nonacquiescence” policy had ended, is uncured false testimony.
As per the July 27, 2010 de novo SSA FOIA request, the SSA “Ford-Ruppert-Jackson” documents had been sought in the plaintiff’s September 3, 2008 Robert v DOJ and SSA Motion seeking a pre-clearance Order to file the putative FOIA complaint that was denied. U.S. Attorney Lynch and Acting SSA General Counsel Black will learn that these documents contain smoking gun evidence that SSA Commissioner Astrue knows that his June 22, 1989 and January 24, 2007 Senate testimony that the nonacquiescence policy had ended, was false. They will learn from reading SSA Commissioner Astrue’s 2007 “Ford Remedy Plan” that SSA Commissioner Astrue knows the SSA template Notices to cure the Ford due process violations do not cite to Jackson regulation, 20 C.F.R. § 416.1130 (b). Acting SSA General Counsel Black will learn that SSA Commissioner Astrue knows that the 2010 Ford class members due process and equal protection rights continue to be violated and why his command and control officer ordered him to take no action with the knowledge that this meant President Obama was violating his Article II “take Care” duty that SSI regulations be equally enforced. §§ C, F, J.
As per the July 27, 2010 SSA FOIA request, the “annual 1982-2009 reductions in SSI expenditures because of the ‘Jackson nonacquiescence policy’” documents quantify the amount of yearly funds appropriated by the Congress which were not paid to SSI recipients. These documents are the SSA companion documents to the 1982-2009 “OMB Jackson” documents that are being withheld pursuant to the use of the “Glomar Response” defense. AG Holder needs these documents when he considers the Robert VIII v DOJ, HHS, and SSA quiet settlement offer, in order that AG Holder knows the cost of SSA Commissioner Astrue “making true” his January 24, 2007 Senate testimony that the nonacquiescence policy ended prior to 1989. § Z.
235 As per the July 27, 2010 SSA FOIA request, the “universe of April 21, 1986 Jackson regulation comments” documents reveal the knowledge of 1983-1986 Acting SSA Commissioner Mc Steen and SSA Chief Counsel Gonya of the public comments that the Jackson regulation, 20 C.F.R. 416.1130(b), should apply equally in all 50 States. These are important documents because of the sworn July 25, 1985 House Judiciary Subcommittee testimony of Acting SSA Commissioner Mc Steen and SSA Chief Counsel Gonya that the “nonacquiescence” policy had ended, and that Jackson was not a nonacquiescence case. This is a duplicate SSA FOIA request with the HHS in order to establish the 1986 mens rea of 1986- 1988 SSA Commissioner Counselor Astrue prior to his June 22, 1989 Senate testimony as HHS General Counsel Nominee and becoming the 1989 HHS General Counsel. §§ C, P, U, Z, EE.
As per the July 27, 1990 SSA FOIA request, the “the January 11, 1990 SSA nonacquiescence regulation public comments” reveal the factors that SSA Commissioner King considered when promulgating 20 C.F.R. 416.1485, Application of circuit court law. 55 FR 1012. These public comments will reveal whether any public members commented that the proposed regulation was contrary to the June 22, 1989 Senate Finance Committee testimony of HHS General Counsel Nominee Astrue that the nonacquiescence policy had ended. The FOIA released comments can be considered by SSA Commissioner Astrue when he provides AG Holder with his answer to the how-could-this-have-ever-happened Jackson question. §§ R-U.
As per the July 27, 2010 SSA FOIA request, the July 16, 1990 “Ruppert Acquiescence ruling” supporting documents reveal the SSA decision making process and whether 1989-1992 SSA Commissioner King knew that the “Ruppert Acquiescence” ruling was a “Ruppert nonacquiescence policy” decision that resulted in the Jackson regulation, 20 C.F.R. §416.1130 (b), not being applied in the Second Circuit after the March 29, 1989 Ruppert remand decision. This is a SSA companion request with the HHS “Ruppert Acquiescence Ruling” supporting documents and reveals the information HHS General Counsel Astrue provided to SSA Commissioner King. U.S. Attorney Lynch and Acting SSA General Counsel Black will learn from the attorney-client communications whether SSA Commissioner King relied upon HHS General Counsel Astrue’s legal advice as to her “acquiescence” to the March 29, 1989 Ruppert decision which had adopted the Jackson “actual economic benefit” standard. §§ C, D-H, R-U.
As per the July 27, 2010 SSA FOIA request, the “unredacted June 14, 1991 ‘Rental Subsidies Decision’ and Tabs” documents reveal whether SSA Commissioner King signed off on the option that did not result in the end to the Jackson and Ruppert nonacquiescence policies, and HHS General Counsel Astrue’s Tab Comments. SSA Associate Deputy Commissioner Enoff’s unredacted memo explained why a decision should be made to end the Jackson and Ruppert “nonacquiescence” policies because they were facial equal protection violations in the SSI program that Congress intended the SSA Commissioner to have uniform federal regulations. http://www.snowflake5391.net/6-14-91%20Enoff%20re%20Jackson.pdf. These documents reveal the 1991 SSA decision making process and the 1991 mens rea of HHS General Counsel Astrue after his June 22, 1989 Senate Finance Committee testimony that the nonacquiescence policy had ended. This is an important SSA Commissioner Astrue 1991 mens rea time line fact because Associate Director Enoff would become the 1992-1993 Acting SSA Commissioner Enoff. He would rely upon the legal advice of HHS General Counsel Astrue when as 1992-1993 SSA Commissioner he enforced the Jackson regulation. §§ C, R, S, T, U.
236 As per the July 27, 2010 SSA FOIA request, the 1996 “SSA General Counsel Fried SSR-96-1p” supporting documents reveal the 1996 mens rea of SSA General Counsel Fried when SSA became an independent agency. SSA General Counsel Fried’s 1996 mens rea has 2010 importance because the Ford v Shalala class certification date is April 9, 1994. Acting SSA General Counsel Black will learn why SSA General Counsel Fried adopted the Jackson and Ruppert nonacquiescence policies of HHS General Counsel del Real and HHS General Counsel Astrue, which triggers the Bowen v City of New York remedy for the Ford class. § P.
As per the July 27, 2010 FOIA request, the 2008 “SSA v Robert Blum exculpatory documents” explain why SSA Commissioner Astrue denied Robert’s SSA v Robert, Docket No. R-005-06, request for these exculpatory documents in the pending SSA representative disqualification hearing. Robert sought the release of the “Blum exculpatory” documents that reveal HHS Chief Regional Counsel’s Blum’s knowledge that government attorneys had provided false facts to the NYS Grievance Committee seeking the disbarment of Robert. Chief Blum knew that government attorneys had proved false information because she had supervised the “Fraud Against the Government” investigation of Robert. She knew that HHS General Counsel del Real was a covered agent and that the HHS nonacquiescence ” policy was to have ended on June 3, 1985. Acting SSA General Counsel Black will learn whether SSA Commissioner Astrue was a covered agent when he instructed then-Acting SSA General Counsel Crawley, the 2010 Deputy General Counsel, to deny defendant Robert’s application. §§ E, AAA. Acting SSA General Counsel Black will learn that the SSA v Robert Blum exculpatory documents” are connect-the-dots that prove that SSA Chief Counsel Gonya had deceived President Reagan’s Chief of Staff Regan as evidenced by his February 21, 1986 letter to Robert explaining the “Jackson nonacquiescence policy” after July 25, 1985. “No issue of acquiescence or non-acquiescence is raised by claims filed in jurisdictions outside that circuit.” Emphasis Added.http://www.snowflake5391.net/2-21-86%20SSA%20Gen.%20Cou.%20Gonya.pdf. These are also connect-the-dots that prove that SSA Chief Counsel Gonya had deceived ACUS regarding the Jackson regulation, 20 C.F.R. 416.1130 (b), in his March 23, 1987 letter explaining the “all or nothing” Jackson income regulation. “ Unless the court’s order is reversed or stayed on appeal, the agency, of course, complies with such a court order.” Gonya, at p. 3. Emphasis Added. http://www.snowflake5391.net/ssagonya.pdf. §§ F, P, Q, R, S, T, U, Z, EE.
After reading these SSA documents, U.S. Attorney Lynch and Acting SSA General Counsel Black will have a K & A duty to read the Ford v Shalala 2001-2007 case file notes and e-mails to learn the reason why SSA Commissioner Astrue approved the 2007 Ford “remedy” Notices sent to Ford class members to “cure” the due process violations. They will learn the 2007 mens rea of SSA Commissioner Astrue, and whether their client knows that his January 24, 2007 Senate Finance Committee testimony remains as uncured false testimony. §§ A-H.
After U.S. Attorney Lynch and Acting SSA General Counsel Black read these FOIA requested SSA documents, they will also be able to answer the Gordon riddle whether SSA Commissioner Astrue’s January 24, 2007 Senate Finance Company testimony was false or whether the SG Days and AAG of the Civil Division Hunger’s Gordon Brief in opposition to the petition for a writ of certiorari was false. If they conclude that SSA Commissioner Astrue’s January 24, 2007 Senate testimony was false, then they will have a 28 U.S.C. 535(b) duty to report to AG Holder their knowledge that SSA Commissioner Astrue’s testimony was false. § J.
237 When U.S. Attorney Lynch and Acting SSA General Counsel Black inform AG Holder that SSA Commissioner Astrue’s June 22, 1989 and January 24, 2007 testimony was false because the nonacquiescence policy did not end, then AG Holder has his own due diligence duty to request that FBI Director Mueller conduct a preliminary investigation to determine whether SSA Commissioner Nominee Astrue lied to Senators. FBI Director Mueller can also determine but whether USG attorneys breached their 28 U.S.C. 535(b) duty to report their knowledge of obstruction of the confirmation process of SSA Commissioner Astru, by attorneys acting in cocert with their command and control officers to violate 18 U.S.C. § 1505:
Section 1505. Obstruction of proceedings before departments, agencies, and committees
Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part, with any civil investigative demand duly and properly made under the Antitrust Civil Process Act, willfully withhold, misrepresents, removes from any place, conceals, covers up, destroys, mutilates, alters, or by other means falsified any documentary material, answers to written interrogatories, or oral testimony, which is subject of such demand; or attempts to do so or solicits another to do so, or
Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct or impede or endeavors to influence, or obstruct, or impeded the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due process and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress
Shall be fined under this title or imprisoned not more than five years, or both. Emphasis Added.
If U.S. Attorney Lynch and Acting SSA General Counsel Black solve the Gordon riddle by determining that SSA Commissioner Astrue did not lie to the Senate Finance Committee, then they will have the April 1, 2009 NYS Professional Model Rules Rule 3.3 duty to cure misrepresentations of fact and law made to tribunals. Compliance with Rule 3.3 would include curing misrepresentations of fact and law to the Second Circuit and the Supreme Court in Gordon. It also would include misrepresentations of fact and law made to Judge Sifton in Ford that has affected millions of 1994-2010 Ford class members whose federal benefits have been reduced because the Jackson regulation was not equally applied in 50 States. §§ E, F, G, H, P.
Hence, the importance of U.S. Attorney Lynch and Acting SSA General Counsel Black reading the July 27, 2010 FOIA requested documents. After they read the documents, then they can recommend to SSA Commissioner Astrue, their client, whether he should accept the appellant’s Robert VIII v DOJ, HHS, and SSA offer of a quiet settlement and make true his June 22, 1989 and January 24, 2007 Senate testimony. If he rejects the offer, then U.S. Attorney Lynch can recommend whether AG Holder should order him to accept the quiet settlement offer.
238 GG. U.S. Attorney Lynch’s K & A duty to read the July 27, 2010 FOIA requested DOJ Robert v Holz, Robert VII v DOJ, and Robert VIII v DOJ, HHS, and SSA documents, case file notes, and e-mails, and other DOJ mosaic of documents to provide AG Holder the answers to the how-could-it-have- happened Jackson question and the Gordon riddle
U.S. Attorney Lynch has a K & A duty to read the July 27, 2010 FOIA requested DOJ Robert v Holz, Robert VII v DOJ, Robert VIII v DOJ, HHS, and SSA, and other DOJ mosaic of documents to provide AG Holder with answers to the how-could-it-have happened Jackson question presented to the Second Circuit at the Robert VIII v DOJ, HHS, and SSA pre-argument conference and to the Gordon riddle. AG Holder’s chain of command attorneys can read these 1985-2010 connect-the-dots documents when they perform their K & A duty to supervise the litigation decisions of U.S. Attorney Lynch. Then they can recommend to AG Holder whether he should accept the offer of a quiet settlement whereby AG Holder instructs SSA Commissioner Astrue to make true his January 24, 2007 Senate testimony. §§ A, J, R, T, ZZ.
U.S. Attorney Lynch and her chain of command attorneys: EOUSA Director Jarrett, AAG of the Civil Division West, Associate AG Perrelli, Acting DAG Grindler, and AG Holder can apply the three dimensional analysis of the 1982-2010 “mosaic” of documents. They can use a vertical analysis and learn the names of the DOJ chain of command attorneys who made decisions on behalf of their AGs. They can use a horizontal analysis and learn the names of the litigation decision-makers who were not DOJ attorneys. They can use a time analysis and learn the names of the 1982-2010 daisy-chain of shadow government patriots who made decisions on behalf of the AGs without the AGs’ knowledge in violation of 28 U.S.C. § 516. “Except as otherwise authorized by law, the conduct of litigation in which the United States, and agency or officer thereof is a party, or is interested, and securing evidence therefore, is reserved to officers of the Department of Justice, under the direction of the Attorney General.”Emphasis Added. § N.
U.S. Attorney Lynch and her chain of command attorneys will be able to determine whether Robert’s almost incredible allegations are true. They can apply the “Glomar Explorer II test” that the appellant requested that AAG of the OLP Schroeder apply to each document that was withheld pursuant to FOIA Exemptions 1, 3, and the “Glomar Response” defense and learn the names of the decision makers by application of E.O. 13,256 § 1.7 misclassification standard. This is an important assessment because if any the July 27, 2010 FOIA requests are denied by the use of FOIA Exemption 1, 3, or the “Glomar Response, then the appellant will request a § 1.5 declassification decision. The 2010 derivative declassifiers will have to identify themselves by name and their decisions will be subject to review by the ISCAP. §§ A, L, M, N, AAA.
From reviewing the DOJ Robert v Holz documents and case file notes, the U.S. Attorney Lynch and her chain of command attorneys will learn who instructed EDNY Chief Begleiter, AUSA Greenwald, and AUSA Noyer that they were to implement the “Barrett nonacquiescence policy” and withhold material facts from Judge Wexler. Those names have 2010 significance because they identify the 1985-1988 daisy-chain of shadow government decision makers who knew that the DIA-CIA-FBI counterintelligence “plumber” unit provided information from the “do not exist” NSA TSP data banks for use in the “Fraud Against the Government” investigation of Robert. Those USG attorneys knew of the breach of the NYS Judiciary Law § 487 prohibition of deception of Judges and parties standard for national security reasons. §§ F, AAA.
239 From reviewing the DOJ Robert VII v DOJ documents, case file notes, and e-mails, U.S. Attorney Lynch and her chain of command attorneys will learn who instructed EDNY U.S. Attorney Mauskopf, Chief Riley, and AUSA Mahoney to implement the “Barrett nonacquiescence policy” and withhold material facts from Judge Garaufis and the Second Circuit. Those names have 2010 significance because they knew the “FISC Robert” documents revealed that Robert had 50 U.S.C. §1806 (f) standing in Robert VII v DOJ. As revealed by application of the NYS Judiciary Law § 487 intent to deceive Judges and parties standard, the Robert VII v DOJ case file notes and e-mails reveal whether they intended that AUSA Mahoney deceive the Second Circuit and Robert in her April 3, 2006 letter-Brief. They know this “intent to deceive” fact is revealed in the 2006 case file notes and e-mails of AAG of the Civil Division Keisler to SG Clement which reveal the reasons why SG Clement decided not to file a Robert VII v DOJ Brief in opposition to the petition for a writ of certiorari. §§ E-H, M, CC, ZZ, AAA.
From reviewing the DOJ Robert VIII v DOJ, HHS, and SSA documents, case file notes, and e-mails, U.S. Attorney Lynch and her chain of command attorneys will learn who instructed EDNY U.S. Attorney Mauskopf, Chief Riley, and AUSA Mahoney to implement the “Barrett nonacquiescence policy” and withhold the material facts from Judge Garaufis that corroborated the plaintiff’s almost incredible allegations. This included withholding material facts in AG Gonzales’ 2005 Motion that successfully secured the Robert injunction prohibiting Robert from filing a FOIA action without Judge Garaufis’ pre-clearance order. Robert needs those names to draft his putative “Bivens” First Amendment right of access to the Courts action in order to survive AG Holder’s putative Motion to Dismiss for failing the Ashcroft v Iqbal “implausibility” standard. Those names and facts make Robert’s allegations plausible when the Article III Judge applies the Dinler v City of New York review standard. §§ XX, AAA.
DOJ Chief FOIA Officer-Associate AG Perrelli, the 1997-1999 Counsel to AG Reno and 1999-2001 DAAG of the Civil Division, has the 2010 K&A supervisory duty to review the decisions of all of the components of the DOJ FOIA Offices. As a result, the DOJ FOIA subcomponents historical ping-ponging should not occur by application of AG Holder’s March 19, 2009 presumption of disclosure standard. Indeed, the August 31, 2009 decision of OLC FOIA Officer Kovakas to release the August 5, 2009 FOIA requested AAG of the OLC Dellinger’s April 5, 1994 Use of Military Personnel for Monitoring Electronic Surveillance, and the February 14, 1995 Standards for Searches Under Foreign Intelligence Surveillance Act, may have been the first time those two documents were released to a member of the public. § CC.
DOJ Chief FOIA Officer-Associate AG Perrelli will have a K & A duty to review OLC FOIA Officer Kovakas’ FOIA decision re the de novo request for the OLC opinions re the 1982 Jackson, 1985 Mitchell, 1986 Barrett, 1990 Ruppert, 1991 Navarro, 2000 Christensen, 2006 Ahlborn, and 2007 Ford “nonacquiescence” policy decisions. If the OLC FOIA Officer decides there are no unclassified or classified 28 U.S.C. §530D “nonacquiescence” case documents, then DOJ Chief Officer-Associate AG Perrelli will have the K & A duty to apply a 1982-2010 time line analysis when he reviews the vertical architecture of the DOJ to learn who made those nonacquiescence policy decisions. If the OLC FOIA Officer decides that Jackson is a classified 28 U.S.C. §530D “exception” case, then he will read the 1982 “Jackson nonacquiescence policy” document. Then Chief FOIA Officer-Associate AG Perrelli will be able to provide AG Holder with answers to the Jackson question and to the Gordon riddle. § D, R-U.
240 Based on AG Holder’s April 17, 2010 Open Government Plan, Chief FOIA Officer- Associate AG Perrelli will take a second look at all of the prior FOIA decisions:
If we are to open up the government, officials and employees at every level must dedicate themselves to taking a second look at old practices and considering, for example, whether information that has long been withheld could be released to the public without harm. Second, the memorandum exhorted work activity to identify ways in which their agency can provide accurate information without being asked. Id. 1. Emphasis Added.
Pursuant to the AG Holder’s Open Government Plan, DOJ Chief FOIA Officer- Associate AG Perrelli is to convene regular meetings with the other Chief FOIA Officers: OMB Associate Deputy Director for Administration Robert Shea, CIA Chief Information Officer Adolfo Tarasiuk, Jr., NARA General Counsel Gary Stern, DOD Acting Director, Administration and Management Michael Rhodes, DNI Acting Deputy Director for Administration Lawrence Baer, HHS Acting Assistant Secretary for Public Affairs Bill Hall, and SSA General Counsel David Black. Give the gravity of the appellant’s allegations, he will know the status and progress of the FOIA requests for the mosaic of OMB, CIA, NARA, DOD, DIA, HHS, and SSA connect-the-dots documents with the DOJ documents. §§ A, Y, AA, BB, CC, DD, EE.
The OMB, CIA, NARA, DOD, DNI, HHS, and SSA Chief FOIA Officers will inform DOJ Chief FOIA Officer-Associate AG Perrelli whether the July 27, 2010 FOIA requested documents will be released or withheld pursuant to which FOIA Exemptions. They will explain how those decisions complied with President Obama’s January 19, 2009 FOIA Proclamation and AG Holder’ March 19, 2009 FOIA Guidelines having been served with this July 27, 2010 White Paper. After DOJ Chief FOIA Officer-Associate AG Perrelli reads the “mosaic” of documents, he will know whether 1982-2010 stovepipes were honeycombed within the agencies. §§ A, J.
DOJ Chief FOIA Officer-Associate AG Perrelli will learn from reading those connect- the-dots documents how the USG “works” when USG attorneys implemented the 1982-2010 “Unitary Executive” theory to protect Top Secrets before and after President Obama’s January 19, 2009 FOIA Proclamation. “Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.” http://www.whitehouse.gov/the_press_office/FreedomofInformationAct/
DOJ Chief FOIA Officer-Associate AG Perrelli will also learn from reading the “mosaic” of FOIA requested OMB, NARA, DOD, DIA, HHS, and SSA documents that are withheld pursuant to FOIA Exemptions 1, 3, 5, 7, and the “Glomar Response” defenses, that they contain smoking gun facts that identify the horizontal 1982-2010 daisy-chain of shadow government patriots who have been implementing the 1982-2010 extreme Unitary Executive theory. This has included the Article I lying to Congressional Oversight Committees to protect Top Secret 1981-2010 decisions to violate the National Security Act 413 (a) reporting duty, the “exclusivity provision” of the FISA, the domestic “law enforcement” limitations of the PCA, and the Social Security Act; the Article II lying-by-omission to Presidents Reagan, Bush, Clinton, Bush, and Obama; and the Article III implementation of the “Barrett nonacquiescence policy” by intentionally withholding material facts from Article III Judges. §§ A, E-H, J, K, M, N, CC.
241 Then when DOJ Chief FOIA Officer-Associate AG Perrelli performs his K & A duty and reads the DOJ connect-the-dots FOIA withheld documents, he will know that these 1982- 2010 documents are a treasure trove for investigative reporters and historians to answer not only the how-could-this-have-happened Jackson question and the Gordon riddle, but also how the DOJ “works” when 1982-2010 DOJ attorneys act in concert with the 1982-2010 daisy-chain of shadow government patriots to implement the extreme Unitary Executive theory of David Addington, the 1981-1984 CIA Assistant General Counsel, 1984-1987 Counsel to the House Committees on Intelligence and Foreign Affairs, 1987 Special Assistant to President Ronald Reagan, 1988 Deputy Assistant to Reagan, 1989-1992 Special Assistant to Defense Secretary Cheney, 1992-1993 DOD General Counsel for Defense Secretary Cheney, and 2001-2008 Counsel-Chief of Staff of Cheney. Then the public will learn why there have been 1982-2010 violations of National Security Act, the FISA, the PCA and the Social Security Act without the knowledge of Presidents Reagan, Bush, Clinton, Bush, and Obama, which continue in 2010. § N.
What AUSA Mahoney should not be doing is continuing to follow her command and control officer’s orders to implement the “conscious avoidance” of facts litigation strategy. “Conscious avoidance occurs when a person deliberately closes his eyes to avoid having knowledge of what would otherwise be obvious to him.” U.S. v. Reyes, 302 F.3d 48, 49-50 (2d Cir. 2002). That strategy will not work if AG Holder acquiesces to the Second Circuit’s Dinler v City of New York decision whereby a District Court Judge is not to defer to the USG national security representations, but is to read in camera classified documents. §§ KK, XX.
The purpose of sending all of the July 27, 2010 FOIA requests to AUSA Mahoney along with the July 27, 2010 White Paper, is to make sure that AUSA Mahoney provides an accurate heads up memo to U.S. Attorney Lynch. Then U.S. Attorney Lynch can provide a meaningful settlement memo to AG Holder as to whether he should accept the appellant’s quiet settlement offer. Because AUSA Mahoney, the 1998-2010 Ford v Shalala lead counsel, has been the lead counsel in most of the 1998-2010 Robert FOIA actions, AUSA Mahoney knows how each of DOJ FOIA requested documents fits into the mosaic of documents that reveal violations of the National Security Act, the FISA, the PCA, and the Social Security Act. Hence, the importance of AUSA Mahoney informing U.S. Attorney Lynch whether the mosaic of connect-the-dots- documents prove true Robert’s almost incredible allegations, answer the how-could-it-have- happened Jackson question and the Gordon riddle, and prove that AUSA Mahoney followed her command and control officer’s orders to implement the “Barrett nonacquiescence policy” and thereby violate Robert’s First Amendment right of access to the Courts. §§ F, AAA.
Therefore, AUSA Mahoney should take the time to prepare a “heads up” memo for U.S. Attorney Lynch that outlines the significance of each of the July 27, 2010 FOIA requested documents. This will be time well spent because it will assist U.S. Attorney Lynch provide her settlement memo recommending to AG Holder whether he should accept the appellant’s offer of a quiet settlement and end in 2010 all of the FOIA actions and the FOIA requests by mooting the need for the release of the mosaic of documents. If the Robert VIII v DOJ, HHS, and SSA appeal is reinstated, then in 2010 the appellant will file his Motion for a pre-clearance order to file the putative FOIA complaint. U.S. Attorney Lynch will assign AUSA Mahoney to oppose that Motion knowing that AUSA Mahoney knows she has a NYS Professional Model Rules Rule 3.3 duty to cure misrepresentations of fact and law and not deceive Judge Garaufis. §§ E-H.
242 HH. U.S. Attorney Lynch’s K & A duty to read the FOIA requested documents sought in plaintiff’s Robert v DOJ and SSA September 3, 2008 Motion for a pre-clearance order to file a putative complaint that Judge Garaufis denied without prejudice
U.S. Attorney Lynch has a K & A duty read the FOIA requested documents sought in plaintiff’s Motion for a pre-clearance order to file a putative September 3, 2008 complaint that Judge Garaufis denied, without prejudice. As per the July 27, 2010 FOIA requests for the connect-the-dots DOJ, FBI, OMB, CIA, NARA, DOD, DNI, HHS, and SSA documents by application of AG Holder’s March 19, 2009 FOIA guidelines, when U.S. Attorney Lynch reads the documents sought in the September 3, 2008 Motion, she will know whether the 2008 DOJ, FBI, OMB, CIA, NARA, DOD, DNI, HHS, and SSA “stovepipes” continue in 2010 to provide plausible deniability defenses to the ongoing 2010 serial violations of federal laws. §§ J, N.
All of the documents sought in the September 3, 2008 putative complaint, are connect- the-dots to the FOIA requested “FBI Abshire” documents for which FBI Chief FOIA Officer Hardy refuses to issue a FOIA decision. They are also related to the FOIA requested 1982-2009 “OMB Jackson” documents which are being withheld pursuant to the “Glomar Response” defense. Therefore, U.S. Attorney Lynch should be reading the July 27, 2010 FOIA requested September 3, 2008 documents along with the “FBI Abshire” and 1982-2009 “OMB Jackson” documents which will be subject to President Obama’s December 29, 2009 E.O. 13,256 § 1.5 declassification and § 1.7 misclassification standards and ISCAP review. §§ L, M, Y, Z.
§ A of the complaint sought a mandamus order that a CIA declassification officer docket the plaintiff’s request for declassification of the Robert v National Archives “Bulky Evidence File”, Robert II v CIA and DOJ “North Notebook”, Robert VII v DOJ “FISC Robert”, Robert III v DOJ “Recarey extradition”, and “Robert v Holz sealed “Fraud Against the Government” documents. The “FBI Abshire” documents are connect-the-dots documents to these classified documents because the 2010 command and control officers of the 2010 DIA-CIA-FBI TSP counterintelligence “plumber” unit know whether the “FBI Abshire” documents reveal a 1980s CIA-DIA-FBI counterintelligence “plumber” unit’s violation of the PCA and the FISA by backwards application of the August 31, 2009 released OLC opinions of AAG of the OLC Dellinger: the PCA “passive-active participation” test of the April 5, 1994 Use of Military Personnel for Monitoring Electronic Surveillance, and the “primary purpose” test of the February 14, 1995 OLC Memorandum for Michael Vatis Deputy Director Executive Office for National Security Re Standards for Searches Under Foreign Intelligence Surveillance Act. § CC.
§ B of the complaint sought a mandamus order that the DOJ declassification officer docket the plaintiff’s request for declassification of the same Robert FOIA documents. The “FBI Abshire” documents are connect-the-dots documents to classified DOJ Robert FOIA documents because FBI General Counsel Caproni knows whether the 2010 “command and control” officer of the DIA-CIA-FBI domestic counterintelligence “plumber” unit knows the documents reveal PCA violations by backwards application of the August 31, 2009 released OLC documents. She knows whether the 2010 FBI “stovepipe” bypasses FBI Director Mueller to provide him with a plausible deniability defense for the serial violations of federal laws, including the National Security Act, FISA, PCA and the Social Security Act. She knows the guileless FBI Director Mueller does not know the 1986 “smoking gun” content of the “FBI Abshire” documents. § G.
243 § C of the complaint sought a mandamus order that the NARA President Ronald Reagan Library Archivist Shelly Jacobs Williams docket and release the February 25, 1987 Ross Perot documents. As explained in the complaint, President Reagan identified the “Perot” documents in his Diary as reported by Professor Douglas Brinkley in the Reagan Diaries. President Reagan provided FBI Director Judge Webster with the documents re alleged “corruption & chicanery” at CIA and DOD. The “FBI Abshire” documents are connect-the-dots documents to the “Perot” documents because they reveal whether the alleged CIA and DOD “corruption & chicanery” was in fact “sources and methods” of the CIA and DIA to fund the “black operation” at IMC. § BB.
§ D of the complaint sought a mandamus order that the NARA President Ronald Reagan Library Archivist Shelly Jacobs Williams docket and release the “Peter Keisler Collection” documents located in NARA Box: Peter Keisler Collection OA 16033: Legal Analysis Contra Aid laws, Congress Notification, and Application States re: Contras. These documents were generated in 1986 by WH Counsel Peter Wallison’s Assistant WH Counsel Keisler and in 1987 by WH Counsel Arthur Culvahouse’s Associate WH Counsel Keisler. The “FBI Abshire” documents are connect-the-dots documents to the “Peter Keisler Collection” documents because they establish whether Assistant WH Counsel Keisler knew in December, 1986 that the “FBI Abshire” documents revealed the Top Secret DIA-CIA “black operation” at IMC to fund the Contras was with HHS funds, and not with State Department Nicaraguan Humanitarian Assistance Office (NHAO) funds, in direct violation of the Boland Amendment. §§ Y, AA, BB.
§ E of the complaint sought the release of the Robert v National Archives “Bulky Evidence File” documents that were determined not to be at issue in Robert v National Archives, 1 Fed. Appx. 85 (2d Cir. 2001). These “Bulky Evidence File” documents reveal the mens rea of FBI Agent Allison, the FBI Director’s liaison to IC Walsh, as to Robert’s allegation that a DIA- CIA “black operation” was conducted at IMC in violation of the Boland Amendment and the National Security Act. The “FBI Abshire” documents are connect-the-dots documents to “Bulky Evidence File” documents because they reveal whether FBI Agent Allison knew in 1989 that Robert’s allegations made to IC Walsh were true, and whether a 1989 FBI “stovepipe” existed whereby classified information bypassed FBI Director Judge Sessions. §§ D, E, F, G, V, Y, BB.
§ F of the complaint sought the release of the OLC 28 U.S.C. § 530D documents that establish the DOJ “nonacquiescence” policies in Jackson, Barrett, Ruppert, Navarro, Christensen, National Council, Ahlborn, and Ford, decisions that were to be reported to Congress, and the DOJ 28 U.S.C. § 530(B) state licensing authorities’ ethics standards that apply to the 94 U.S. Attorneys and their AUSAs. These are DOJ connect-the-dots documents if the DOJ FOIA Officers do not locate the FOIA requested documents which would explain the DOJ nonacquiescence and ethics policies that have been applied by the EDNY U.S. Attorneys in the Robert FOIA and Ford v Shalala litigation. A de novo search of the OLC documents will reveal whether any of the OLC nonacquiescence policy documents are classified “exception” documents pursuant to President Bush’s November 2, 2002 Presidential Signing Statement. If a de novo due diligence search reveals that there are no OLC documents, then this will be smoking gun evidence that the EDNY U.S. Attorneys have been implementing de facto nonacquiescence policies based on policies not established by the OLC. Upon information and belief, Associate AG Perrelli will learn that these ad hoc nonacquiesence decisions were made by the 1982-2007 daisy-chain of shadow government attorney-patriots. §§ D, N, CC.
244 § G of the complaint sought the release of the SSA “Ford-Ruppert-Jackson” documents that revealed the 1982-2006 annual reductions of Congressional appropriations resulting from the implementation of 20 C.F.R. §416.1130(b). The FOIA requested 1982-2008 and 2009 “OMB Jackson” documents are connect-the-dots documents because the Jackson regulation, 20 C.F.R. §416.1130(b), continues to be enforced in 2010. These are now smoking gun documents because SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee testimony that the nonacquiecence policy had ended prior to his becoming HHS General Counsel in 1989, remains as July 2010 uncured false testimony with the knowledge of FBI General Counsel Caproni and EDNY AUSA Mahoney, the DOJ 1998-2010 lead counsel in Ford.
§ H of the complaint sought the release of the HHS “Navarro nonacquiescence policy” documents that prove that HHS Chief Regional Counsel Blum implemented this policy in concert with the NYS AG Civil Recovery Bureau attorneys contrary to 20 C.F.R. §416.1201. The “FBI Abshire” documents are connect-the-dots documents because FBI General Counsel Caproni, a 1985-1989 and 1992-1998 EDNY AUSA, knows that HHS Chief Regional Counsel Blum and EDNY Chief of the Civil Division Begleiter worked in concert during the “Fraud Against the Government” investigation of Robert initiated by HHS General Counsel del Real, as a DIA-CIA covered agent. The “Navarro nonacquiescence policy” documents are relevant because NYS licensed attorneys have a Rules of Professional Conduct Rule 3.3(a)(3) duty to cure misrepresentations of fact made to tribunals including the government attorneys who provided false information to the NYS Grievance Committee seeking Robert’s disbarment to eliminate counsel opposing the Jackson and Navarro nonacquiescence policies. §§ X, EE.
§ I of the complaint sought the release of the SSA “CMS Jackson” documents that establish HHS Chief Blum’s mens rea that the “Barrett nonacquiescence policy” had been implemented by NYS attorneys implementing the “Navarro nonacquiescence policy” in concert with HHS Chief Blum and EDNY Chief Begleiter. The “CMS Jackson” documents are connect- the-dots documents with the Barrett and Navarro nonacquiescence” policy documents because 1985-2004 NYS licensed government attorneys, including HHS Chief Blum, Chief Begleiter, and EDNY AUSA Nocenti, had knowledge of the violations of the Social Security Act. They knew their “command and control” attorneys knew that the DIA-CIA-FBI counterintelligence “plumber” unit tasked to protect HHS nonacquiescence policies, had used information re Robert from the “do not exist” NSA TSP data banks and the FISC warrants. §§ X, CC, EE.
§ J of the complaint sought a mandamus cause of action that the NARA Office of Government Information Services (OGIS) docket the plaintiff’s request for OGIS mediation services. As per the July 27, 2010 DOJ, FBI, CIA, DNI, HHS, and SSA FOIA requests, the FOIA requester will again seek the services of the OGIS mediator. President Obama’s NARA OGIS Director Miriam Nesbit was the 1982-1994 DOJ Deputy Director of the DOJ OIP and the 1994-1999 NARA Special Counsel. She will know the historical significance of the “FBI Abshire” documents as connect-the-dots documents to the NARA “Peter Keisler Collection”, NARA “Perot”, and NARA Robert v National Archives “Bulk Evidence File” documents. She will know these documents will trigger an application of the Bowen v City of New York, 106 S. Ct. 2022 (1986), clandestine policy equitable tolling remedy, and the Schweiker v. Chilicky, 108 S. Ct. 2460 (1988), “normal sensibilities” of human beings standard, as applied to 1994- 2010 Ford v Shalala class members residing in all 50 States. §§ A, P, Q, Y, BB.
245 § K of the complaint sought a mandamus cause of action that Office of Public Integrity (OPI) Chief William Welch docket the plaintiff’s complaint that DOJ attorneys violated their 28 U.S.C. § 535 (b) duty to report to FBI Director Mueller their knowledge that SSA Commissioner Astrue’s sworn January 24, 2007 Senate Finance Committee testimony that the nonacquiesence policy had ended was false. The “FBI Abshire” documents are related because they reveal whether the December 1986 “task force of departmental general counselors” knew the July 25, 1985 House DAAG Kuhl that the nonacquiescence policy had ended on June 3, 1985 was false, in order that Congress continued to appropriate SSI funds undiminished by the one-third reductions of the “Jackson nonacquiescence policy” of HHS General Counsel del Real. AG Holder, a 1976-1988 OPI attorney, can review OPI Chief Welch’s case file notes. §§ K, Y.
§ L of the complaint sought a mandamus cause of action that DOJ IG Glenn Fine docket the plaintiff’s complaint that DOJ attorneys violated their 28 U.S.C. § 535 duty to report to FBI Director Mueller their knowledge that SSA Commissioner Astrue’s sworn January 24, 2007 Senate Finance Committee testimony that the nonacquiesence policy had ended was false. This mandamus application takes on greater importance because on July 10, 2009, IG Fine and four other Intelligence Community (IC) IGs released the Unclassified Report on the President’s Surveillance Program which concluded that the post-9-11 NSA warrantless TSP may have violated the FISA. http://www.usdoj.gov/oig/special/s0907.pdf. Upon information and belief, in the classified report IG Fine raised the issue of the construction and maintenance 1984-2009 pre- 9/11 and post-9/11 NSA TSP data banks being funded with off-OMB Budget funds and not classified OMB Budget funds. The “OMB Jackson” documents reveal whether 1984-2009 OMB Directors knew whether the off-OMB Budget used to pay for the “do not exist’ NSA TSP and PSP data banks were unaudited “Jackson nonacquiescence policy” funds. §§ Z, CC.
§ M of the complaint sought a mandamus cause of action that DOJ IG Fine docket the plaintiff’s complaint that DOJ attorneys had misused information from the domestic surveillance of Robert that was revealed during the Robert VII v DOJ litigation. IG Fine will learn whether pursuant to the February 14, 1995 Memorandum for Michael Vatis Deputy Director Executive Office for National Security Re Standards for Searches Under Foreign Intelligence Surveillance Act “primary purpose” standard, the “FBI Abshire” and the Robert VII v DOJ “FISC Robert” connect-the-dots classified documents reveal whether the “primary purpose” of surveillance of Robert was to assist the “plumber” unit protect the “black operation” at IMC and the funding of the construction and maintenance of the “do not exist” NSA TSP data banks. §§ K, CC.
§ N of the complaint sought a mandamus cause of action that HHS IG Daniel Levinson docket plaintiff’s complaint that HHS Chief Regional Counsel Blum failed to report to FBI Director Mueller her knowledge that SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee testimony that the nonacquiescence policy ended prior to his becoming HHS General Counsel in 1989, was false. The appellant alleged that Chief Blum knew that the testimony was false because she defended the 1990 Ruppert v Bowen, 871 F. 2d 1172 (2d Cir. 1989) nonacquiescence policy of HHS General Counsel Astrue in her representation of the HHS Secretaries during the 1994-2008 Ford v Shalala litigation. The sealed Robert v Holz documents reveal whether HHS Chief Regional Counsel Blum knew HHS General Counsel del Real was a covered agent when he made her the supervising attorney of the HHS “Fraud Against the Government” investigation of Robert seeking Robert’s disbarment. §§ B, C, E, F, G, S, EE, GG.
246 § O of the complaint sought a mandamus cause of action that SSA IG Patrick O’Carroll docket plaintiff’s complaint against SSA Regional Counsel Barbara Spivak that she failed to inform FBI Director Mueller of her knowledge that SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee that the nonacquiescence policy had ended prior to his becoming HHS General Counsel in 1989, was false. Throughout the 1982-1989 Ruppert litigation and the 1994-2007 Ford v Shalala litigation, she defended the 1982 “Jackson nonacquiescence policy. She knew in 1986 whether then-Legal Counsel to the SSA Deputy Commissioner for Programs Michael Astrue knew that the July 25, 1985 House testimony of Acting SSA Commissioner Martha Mc Steen, SSA Chief Counsel Donald Gonya, and DAAG Kuhl that the nonacquiescence policy had ended on June 3, 1985, was false testimony. § FF.
§ P of the complaint sought a mandamus cause of action that NARA IG Paul Brachfield docket plaintiff’s complaint that President Reagan’s Library Archivist Shelly Jacobs Williams did not docket the FOIA request for the “Perot” documents. Upon information and belief, he learned that a representative of the Estate of President Reagan had ordered NARA Archivist Williams not to docket the FOIA request for the “Perot” documents because those documents revealed that AG Meese had lied-by-omission to President Reagan because he knew HHS off- OMB Budget funds had been used to pay for CIA Director’s “black operations” that included the off-the-shelf medical delivery system at IMC. As per the July 27, 2010 de novo FOIA request, the NARA FOIA Officer will make a decision pursuant to President Obama’s January 21, 2009 E.O. Presidential Records which rescinded President Bush’s November 1, 2001 E.O. 13233 governing the assertion of executive privilege by estates and former Presidents. §§ Y, Z, BB.
If pursuant to the appellant’s July 27, 2010 FOIA request U.S. Attorney Lynch agrees to an informal conference to discuss the appellant’s quiet settlement offer, then Robert will cite to this mosaic of documents as the connect-the-dots documents that contain the fact details he needs to carry his Iqbal burden of “plausibility” in his putative “Bivens” First Amendment Right of Access to the Courts complaint against the DOJ chain of command attorneys. The appellant will respectfully inform U.S. Attorney Lynch that if it is necessary to reinstate the VIII v DOJ, HHS, and SSA appeal on September 3, 2010 and the FOIA requested documents are not released, then the appellant will file a 2010 Motion with Judge Garaufis seeking a pre-clearance order to file a putative FOIA complaint. He will be seeking the release of documents to prove to Judge Garaufis that AUSA Mahoney and her chain of command attorneys have implemented the “Barrett nonacquiescence policy” and intentionally withheld material facts from Judge Garaufis for the purpose of deceiving Judge Garaufis based on their license to lie-by-omission to federal court judges in order to protect the Tops Secret violations the National Security Act, FISA, PCA, and Social Security Act necessary to protect the nation from terrorists. §§ D-H.
Therefore, if U.S. Attorney Lynch does not acknowledge the request for an informal conference by August 16, 2010, then on August 18, 2010 the appellant will serve this White Paper on AG Holder’s chain of command” attorneys. He will respectfully inform each of the attorneys that the Robert VIII v DOJ, HHS, and SSA case file notes reveal that AUSA Mahoney and her command and control officers knew that the content of the documents being sought in the September 3, 2008 Motion proved that they had withheld material facts from Judge Garaufis. He will place them on Notice that their implementation of a 2010 “Barrett nonacquiescence policy” would be a breach of Robert’ First Amendment Right of Access to the Courts. AAA.
247 II. U.S. Attorney Lynch’s K & A duty to review the due diligence search for three documents for which Judge Garaufis had explicitly ordered the defendants to conduct a supplemental due diligence search and to review the due diligence search for the de novo July 27, 2010 FOIA requests subject to AG Holder’s March 19, 2009 FOIA Guidelines
U.S. Attorney Lynch has a K & A duty to review the due diligence search for three documents for which Judge Garaufis had explicitly ordered the defendants to conduct supplemental due diligence searches. The de novo July 27, 2010 FOIA requests for those same documents will be decided by application AG Holder’s March 19, 2009 presumption of disclosure Guidelines. U.S. Attorney Lynch will learn from reading the Robert VIII v DOJ, HHS, and SSA case file notes and e-mails whether three sham due diligence searches had been conducted with the intent to deceive Judge Garaufis by application of the NYS Judiciary Law § 487 standard. § F.
On May 9, 2008, Judge Garaufis granted in part the government’s Motion for Summary Judgment. However, he ordered the Robert v DOJ and SSA defendants to conduct supplemental due diligence searches for the “IMC Investigation Final Report”, “Barrett nonacquiescence policy”, and “Christensen nonacquiescence policy” documents. In his September 21, 2009 final decision that is subject to a September 3, 2010 reinstatement Notice, Judge Garaufis held that the original and supplemental DOJ searches for the FOIA requested documents were adequate to satisfy a due diligence standard for a summary judgment Motion. “In this Memorandum & Order, the court addresses the adequacy of Defendants’ supplemental submissions, concluding that Defendants’ follow-up submissions are sufficient for summary judgment.” Id. 1.
The appellant filed the July 27, 2010 de novo FOIA requests for these three documents in order that AG Holder’s March 19, 2009 presumption of disclosure standard is applied after a 2010 due diligence search that is subject to the K & A supervising attorney review by DOJ Chief FOIA Officer Perrelli, the 2000 DAAG of the Civil Division who had K & A Robert v National Archives and Ford duties. If these three documents are not located, then this means the “Glomar Response” defense is being used, or the documents never existed, or the documents were purged. These are important 2010 K and A facts for AG Holder to know when AG Holder considers the appellant’s quiet settlement offer. If the Robert VIII v DOJ, HHS, and SSA appeal is reinstated, then the appellant will inform the Court the results of the July 27, 2010 FOIA requests. §§ B, E, F, G.
The “IMC Investigation Final Report” is the FBI-DOJ-HHS joint task force’s Final Report after conducting the 1985-1987 “Fraud Against the Government” investigation of IMC that AAG of the Criminal Division William Weld terminated after learning the content of the February 25, 1987 “Perot” documents that President Reagan had provided AG Meese and FBI Director Judge Webster. This is not a difficult DOJ document to locate for the FOIA Officers of AAG of the Criminal Division Breuer and AAG of the Civil Division West because scores of DOJ and FBI joint task force members participated in the IMC “Fraud Against the Government” investigation. The IMC Report is a connect-the-dots document to the NARA “Perot” documents that are how subject to President Obama’s January 21, 2009 Presidential Records E.O. 13489. §§ Y, AA, BB.
Judge Garaufis determined the Southern District of Florida AUSA’s search for the “IMC Investigation Final Report” document was an adequate search notwithstanding plaintiff’s identification of the joint DOJ-FBI task force “Fraud Against the Government” investigation:
248 With respect to Request A, the court previously denied summary judgment because Defendants had not offered affidavits describing the searches they conducted for a Department of Justice report relating to an investigation of a Florida HMO. (See May 9 M&O 9-10). Defendants’ subsequent submissions detail these searches. (See Docket Entries ## 78-79). Following this court’s May 9 M&O, an Assistant United States Attorney in the Southern District of Florida conducted new searches for the requested document by electronic and manual means, but did not locate responsive documents. (See Docket Entry # 79.). Id. 2. Emphasis Added.
As per the July 27, 2010 FOIA requests for the FBI, DOJ, and HHS “IMC Investigation Final Report” document, each of the joint task force agencies three agencies should have a copy of this joint task force report. Each report is a connect-the-dots to the “FBI Abshire” documents because they reveal what FBI Director Judge Webster knew and when he knew it. When located, U.S. Attorney Lynch will have an ethics Rule 3.3 duty to inform Judge Garaufis. §§ E, F, Y, BB.
If there is a reinstated appeal, then the appellant will argue that the search was limited to an AUSA from the Southern District of Florida who did not have clearance to search the FBI’s classified document index, was a sham search not a reasonably calculated search to locate the document. The July 27, 2010 DOJ FOIA request suggested a reasonable search for the “IMC Investigation Final Report” would include contacting DAAG of the Civil Division Hertz. He has access to the universe of qui tam cases including the IMC qui tam case. He knows whether the “IMC Investigation Final Report” reveals that in December, 1987 HHS IG Kusserow withheld IMC classified sources and methods documents from the House Committee on Government Operations investigating “Fraud Against the Government” at IMC. See Medicare Health Maintenance Organizations: The International Medical Centers Experience. §§ V, Y, AA, BB, EE.
As per the DOJ “Barrett nonacquiescence policy” and “Christensen nonacquiescence policy” documents, Judge Garaufis determined that the EOUSA FOIA Officer had conducted a reasonable due search for these documents and could not locate the documents. The July 27, 2010 FOIA requests will result in de novo due diligence FOIA searches for these two documents:
With respect to Requests D and E, the court denied summary judgment because Defendants had not provided documents sufficiently settling for the basis for Defendant’s position that they did not maintain documents relating to supposed Justice Department policies not to “acquiesce” to certain judicial rulings. (See May 9 M&O 10-12). Defendants’ subsequent submissions set forth the steps Defendants took to search for these documents. The primary contact for FOIA requests in the Front Office of the Executive Office for United States Attorneys (“EOUSA”) performed various electronic work searches of a database repository holding EOUSA Front Office documents. (See Docket Entry # 10 80.). Similarly, the primary contact for FOIA requests in the EOUSA’s General Counsel Office (“GCO”) performed electronic word searches on a database system containing documents relating to GCO assignments. (See Docket Entry # 81.). These searches turned up no responsive documents. Id. 2-3. Emphasis Added.
249 As per the July 27, 2010 DOJ FOIA requests, the FOIA requester instructed the OLC FOIA Officer to contact Acting AAG of the OLC Barron to locate the 28 U.S.C. §530D unclassified or classified Barrett and Christensen nonacquiescence policy documents. If Acting AAG of the OLC Barron informs the OLC FOIA Officer that no unclassified documents exist, then the OLC FOIA Officer should so inform Robert. This is a critical FOIA decision because this would mean there are no DOJ de jure Barrett or Christensen nonacquiescence policy documents. This means that EOUSA Director Jarrett and AG Holder should know that the Barrett and Christensen nonacquiescence policies that AUSA Mahoney has implemented in the Robert FOIAs and in Ford v Shalala, have been based on the de facto Barrett and Christensen nonacquiecence policies of her 1998-2010 “command and control” officers. §§ C, D, F, G, R.
As explained in the July 27, 2010 FOIA request, if there are no unclassified OLC Barrett or Christensen nonacquiescence policy documents, then AG Holder has his own K & A duty to learn the names of the USG attorneys who made these de facto nonacquiescence litigation decisions that affect millions of 2010 Ford v Shalala class members. Then AG Holder can ask these USG attorneys the names of their “clients” who requested the de facto litigation decisions given 28 U.S.C. § 516 requirement that litigation decisions are made by the AG, not the client.
However, if Acting AAG of the OLC Barron informs the OLC FOIA Officer that classified Barrett and Christensen nonacquiescence documents exist which are subject to President Bush’s November 2, 2002 Presidential Signing Statement national security “exception” standard, then the OLC FOIA Officer should be using the “Glomar Response” defense as has the OMB FOIA Officer used that defense to withhold the 1982-2008 “OMB Jackson” documents. The appellant will appeal any decision to withhold these classified nonacquiescence cases documents and request § 1.5 declassification and § 1.7 misclassification decisions. §§ L, M.
If these are classified Barrett and Christensen nonacquiescence policy cases, then AG Holder will determine whether there has been a violation of the 28 U.S.C. § 516 requirement that litigation decisions are made by the AG, not the client. “Except as otherwise authorized by law, the conduct of litigation in which the United States, and agency or officer thereof is a party, or is interested, and securing evidence therefore, is reserved to officers of the Department of Justice, under the direction of the Attorney General.” §§ E-H.
If these were vertical decisions, then AG Ashcroft would have made these decisions pursuant to President Bush’s November 2, 2002 Presidential Signing statement which established the national security “exception” to 28 U.S.C. § 530D. AAG of the OLC Barron will inform AG Holder who made AG Ashcroft’s classified nonacquiescence decisions. § D.
If these are classified Barrett and Christensen nonacquiescence policy cases and DOJ attorneys did not make the § 530D “exception” decisions, then AG Holder will learn that this was a horizontal decision. If so, then this was a facial violation of 28 U.S.C. § 516, and U.S. Attorney Lynch will have a Rule 3.3 duty to report this fact to Judge Garaufis. If compliance with Rule 3.3 is not sua sponte, then U.S. Attorney Lynch will decide whether to comply with Rule 3.3 after Robert files his 2010 Motion with Judge Garaufis seeking a pre-clearance Order to file a FOIA complaint seeking the release of these documents to which the DOJ FOIA Officer made “Glomar Response” decisions and requests a Dinler in camera review. §§ E, F, G, XX.
250 As per the July 27, 2010 FOIA request, if there is no unclassified or classified “Barrett nonacquiescence policy” document, then AG Holder will have his own K & A duty to learn who made the “Unitary Executive” theory decision that the Second Circuit had “incorrectly” decided Barrett and that DOJ attorneys were not to acquiesce to its immunity holding that there was no absolute immunity to USG attorneys’ good faith national security decisions. “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.
AG Holder will learn from the “FBI Abshire” documents the names of the December 1986 “task force of departmental general counselors” who apparently made a de facto “Barrett nonacquiescence policy decision after the July 31, 1986 Barrett decision. AG Holder will learn from reading the FBI and DOJ 2009-2010 “FBI Abshire” FOIA case file notes of FBI Chief FOIA Officer Hardy and OIP Associate Director Janice Galli McLeod, the name of their “command and control” officer who interpreted the Robert VIII v DOJ, HHS, and SSA injunction and who ordered them not to make a 2010 “FBI Abshire” FOIA decision. §§ Y, AAA.
As per the July 27, 2010 FOIA request, if there is no unclassified or classified “Christensen nonacquiescence policy” document, then AG Holder will have his own K & A duty to learn who made the “Unitary Executive” theory decision the Supreme Court had “incorrectly” decided Christensen that the “law” is the duly promulgated regulation and not a USG attorney’s interpretation of the regulation. “To defer to the agency's position would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.” Christensen v. Harris County, 120 S. Ct. 1655, 1663 (2000). Emphasis Added.
AG Holder will have proof of the “Christensen nonacquiescence policy” decision from reading the the 2001-2009 “OMB Jackson” documents. Those documents reveal that after the 2000 Christensen decision, the OMB Director continued to apply the the Jackson regulation, 20 C.F.R. 416.1130 (b), which was not cited in the Ford v Shalala reduction notices sent to millions of Ford class members. AG Holder will learn from reading the OMB 2009-2010 “OMB Jackson” FOIA case file notes of OMB FOIA Officer Hardy, the name of her “command and control” officer who ordered her to to withhold documents that proved the “Christensen nonacquiescence policy” implementation during his Constitutional watch. §§ C, H, N, Z.
If AG Holder decides to “acquiesce” to Justice Thomas’ Christensen administrative law decision, then he will instruct his chain of command attorneys: Acting DAG Grindler, Associate AG Perrelli, and AAG of the Civil Division West, to review the 2007 Ford “remedy” approved by AAG of the Civil Division Keisler and SSA Commissioner Astrue. AG Holder’s “chain of command” attorneys will report that a de facto “Christensen nonacquiescence policy” decision was made because the Ford “remedy” Notices do not cite to any regulations. § R-U.
Hence, the appellant’s respectful suggestion that after U.S. Attorney Lynch reads the 2009 Robert v DOJ and SSA due diligence Affidavits, she consult with EOUSA Director Jarrett, her supervising attorney and the 1998-2008 OPR Director. He will advise whether during the reinstated appeal, the NYS Judiciary Law § 487 deception of Judges and parties standard would apply to the Second Circuit, appellant Robert, and the 2010 Ford plaintiffs. §§ F, G, H.
251 JJ. U.S. Attorney Lynch’s K & A duty to ask the 1985-2010 former-U.S. Attorneys and EDNY AUSAs whether they knew the “Jackson nonacquiescence policy” implemented after the July 25, 1985 House Judiciary Subcommittee testimony, was a “clandestine” policy that would trigger the 1986 Bowen v City of New York equitable tolling standard
U.S. Attorney Lynch has a K & A duty to ask the 1985-2010 former-U.S. Attorneys and EDNY AUSAs whether they knew that the “Jackson nonacquiescence policy” implemented after the July 25, 1985 House Subcommittee testimony, was a “clandestine” policy that would trigger the 1986 Bowen v City of New York equitable tolling standard. This is an important mens rea inquiry because of SSA Commissioner Astrue’s June 22, 1989 and January 24, 2007 Senate Finance Committee testimony that the nonacquiescence policy had ended prior to 1989, and his 2010 programming of the SSA computer to apply the 1982 “Jackson nonacquiese policy to reduce the benefits of millions of 1994-2010 Ford nationwide class members. §§ B-H, P.
The former-U.S. Attorneys can provide background information to U.S. Attorney Lynch in order that she can answer the how-could-it-have-happened Jackson question:
How could it have happened that in 2010 SSA Commissioner Astrue is programming the 2010 SSA computer to apply the 1982-2010 “Jackson nonacquiescence policy” of HHS General Counsel del Real to deny 2010 Ford v Shalala nationwide class members benefits contrary to the sworn January 24, 2007 Senate Finance Committee testimony of SSA Commissioner Nominee Astrue that the “nonacquiescence” policy had ended prior to his becoming HHS General Counsel in 1989, and contrary to the 2000 Christensen administrative law decision of Justice Thomas that the “law” to be applied is the duly promulgated regulation and not an agency’s attorney’s interpretation of the regulation?
AG Holder should know the answer to this question when he considers the appellant’s quiet settlement offer. He should know why 2010 U.S. Attorney Lynch and her EDNY U.S. Attorney predecessors defended the 1982 “Jackson nonacquiescence policy” of HHS General Counsel del Real and AAG of the Civil Division Willard contrary to the 1985 “just say no” policy of the honorable SDNY U.S. Attorney Giuliani, the 1981-1983 Associate AG who knew whether HHS General Counsel del Real was a DIA-CIA-FBI covered agent when he made his 1982 and 1985 “Jackson nonacquiescence policy” decisions. §§ K-S, Y, Z, AA, BB, CC, AAA.
Upon information and belief, if asked the Jackson question, EDNY U.S. Attorneys Dearie (1982-1986), Raggi (1986), Maloney (1986-1992), White (1992-1993), Carter (1993- 1999), Lynch (1999-2001), Vinegrad (2001-2002), Mauskopf (2002-2007), and (Acting) Campbell (2007-), all would answer that their EDNY Chiefs Civil Division informed them that based on the decision of AAG of the Civil Division Willard, in any cases in which an SSI plaintiff argued that the Seventh Circuit’s Jackson holding should apply in the Second Circuit, the litigation decision would be made by the AAG of the Civil Division. If so, then this is corroboration of the appellant’s assertion that an EDNY stovepipe has existed from 1985-2010 that has bypassed the ENDY U.S. Attorneys to provide a plausible deniability defense for the EDNY U.S. Attorneys to the 1985-2010 serial violations of the Social Security Act. §§ B, C.
252 Upon information and belief, if asked, all of the former-U.S. Attorneys would advise U.S. Attorney Lynch that if she reads documents that reveal that HHS General Counsel Astrue approved the 1990 Ruppert nonacquiescence policy, then she has a 28 U.S.C. §535(b) duty to report to AG Holder that this is evidence that SSA Commissioner Nominee Astrue’s January 24, 2007 Senate Finance Committee testimony was false and that a crime has been committed. Upon information and belief, if asked, all of the former-U.S. Attorneys would also advise U.S. Attorney Lynch to seek the guidance of AAG of the Criminal Division Breuer to determine whether SSA Commissioner Astrue has a 2010 “gray mail” defense whereby if indicted, he would invoke his Sixth Amendment right and request that the USG release classified documents that reveal he that was implementing a USG clandestine policy to “rig” the HHS-SSA computer to apply the “Jackson nonacquiescence policy” to generate off-OMB Budget funds necessary to pay for DIA-CIA-FBI “black operations” to protect the national security. §§ K, P.
U.S. Attorney Lynch, a 2009 Member of the New York State Commission on Public Integrity, does not have to perform her K & A duty by asking her U.S. Attorney predecessors embarrassing questions. Rather, she can answer the Jackson question by asking questions of EDNY AUSAs in the class of 1990 when she first became an EDNY AUSA. In 1990, EDNY Chief Robert Begleiter and AUSAs Valerie Caproni, Deborah Zwany, Robin Greenwald, AUSA David Nocenti, AUSA Arthur Hui, Bruce Nims, Igou Allbray, and Susan Riley all knew that EDNY AUSAs were defending the 1982 “Jackson nonacquiescence policy” and 1990 “Ruppert nonacquiescence policy” in the EDNY contrary to the “Thornburgh-Giuliani” acquiescence policy as explained by OPR Director Shaheen in his January 9, 1989 letter to Ruppert-Gordon counsel. http://www.snowflake5391.net/1-9-89Shaheen.pdf.
Upon information and belief, all of these 1990 EDNY AUSAs signed DOJ non- disclosure agreements because they knew that the “Fraud Against the Government” investigation of Robert, supervised by Chief Begleiter and HHS Chief Regional Counsel Blum, was initiated by HHS General Counsel del Real as a covered agent. They knew that Chief Begleiter knew that the July 25, 1985 House Judiciary Subcommittee testimony of Acting Commissioner Mc Steen, SSA Chief Counsel Gonya, and DAAG Kuhl that the nonacquiescence policy had ended on June 3, 1985 and that Jackson was not a nonacquiescence case, remained as false testimony in 1990. They knew Chief Begleiter was defending the 1990 Ruppert nonacquiescence policy for the same reasons he stated in his August 14, 1986 letter to OPR Advisor Rodriguez. http://www.snowflake5391.net/begleiter.pdf.
If AG Holder provides the AUSA class of 1990 with waivers to their nondisclosure agreements, and if these 1990 AUSAs are asked questions re their defense of the 1982 “Jackson nonacquiescence policy” of HHS General Counsel del Real, then they will not lie to EDNY U.S. Attorney Lynch or AG Holder or FBI Director Mueller or Congressional Oversight Committees. If asked, they will inform U.S. Attorney Lynch that they knew the “Jackson nonacquiescence policy” was a City of NY v Bowen clandestine policy, but that they were bound by their non- disclosure agreements not to reveal directly or indirectly the fact that HHS General Counsel del Real was a covered agent. Upon information and belief, if asked, they will inform U.S. Attorney Lynch that they possess the Chilicky “normal sensibilities” of other human beings, but their nondisclosure agreements with the penal sanctions, continue in 2010 to trump their Rule 3.3 duties to cure misrepresentations of fact and law they had made to tribunals. §§ E, F, G, H, Q.
253 1985-1994 EDNY Chief Begleiter is a 1994 founding partner of Constantine Cannon. If provided a non-disclosure agreement waiver and if asked, he will provide U.S. Attorney Lynch, AG Holder, and FBI Director Mueller the names of his command and control officers during the Ruppert and Robert v Holz litigation who were not U.S. Attorneys Dearie (1982-1986), Raggi (1986), Maloney (1986-1992), White (1992-1993), and Carter (1993-1999). He will explain how the EDNY tovepipe bypassed the EDNY U.S. Attorneys to provide the U.S. Attorneys with a plausible deniability defense to the serial violations of federal laws that included the Social Security Act and the implementation of the 1986 “Barrett nonacquiescence policy” of AAG of the OLC Cooper. He will confirm whether he knew HHS General Counsel del Real was a covered agent and whether AAG of the Civil Division Willard was the “main Washington” attorney at the September 4, 1985 Ruppert conference held in Judge Altimari’s Chambers after the July 25, 1985 House Judiciary Committee testimony of DAAG Kuhl that the “nonacquiescence” policy had ended and Jackson was not a nonacquiescence case. He will advise whether with a waiver he would fulfill his Rule 3.3 duty to cure misrepresentations of fact and law made when he had a K & A duty to supervise the AUSAs in the Ruppert litigation.
EDNY AUSA Caproni became FBI Director Mueller’s FBI General Counsel in 2003. If provided a non-disclosure agreement waiver and if asked, she will provide U.S. Attorney Lynch, AG Holder, and FBI Director Mueller the names of her FBI General Counsel command and control officers who were not FBI Director Mueller. She will explain how the FBI stovepipe bypassed FBI Directors (Acting) John Otto (1987), Judge William Sessions (1987-1993), (Acting) Floyd Clarke (1993), Judge Louis Freeh (1993-2001), (Acting) Thomas Pickard (2001), and Robert Mueller (2001- ), in order to provide them with a plausible deniability defense to the serial violations of federal that included the National Security Act, FISA, PCA and Social Security Act. If asked, she will confirm whether SSA Commissioner Astrue is a covered agent successor of HHS General Counsel del Real, tasked to fund the NSA TSP data banks with unaudited off-OMB Budget funds to protect the nation from terrorists, and whether he lied to the Senate Finance Committee that the nonacquiescence policy had ended. §§ E, Y.
Because in 2004 AUSA Caproni read the Robert VII v DOJ “FISC Robert” documents, she knows whether AG Meese and FBI Director Judge Webster had provided uncured false facts to the FISC that the FBI had evidence that Robert was a terrorist or an agent of a foreign power. She knows whether the FISC was informed of the existence of the “do not exist” pre-9/11 NSA TSP used by FBI counterintelligence “plumber” units to secure information re U.S. citizens contrary to the “exclusivity provision” of the FISA. She knows who ordered the Robert National Security Letters (SNLs) to secure information from Robert’s attorney escrow accounts and ISP. She knows whether in 2010 her command and control officer is a military officer who has access to the DOD Cyber Command “do not exist” pre-9/11 NSA TSP data banks for domestic “law enforcement” purposes. If provided a non-disclosure agreement waiver, then she would advise whether she would fulfill her Rule 3.3 duty to cure misrepresentations of fact and law re serial violations of laws including National Security Act, FISA, PCA and Social Security Act.
1984-2010 EDNY AUSA Zwany knows who ordered her to defend the “Jackson nonacquiescence policy in Ruppert. She knows whether HHS General Counsel del Real was a CIA-DIA covered agent when he initiated the “Fraud Against the Government” investigation of Robert to eliminate the attorney opposing his “Jackson nonacquiescence” policy in Ruppert. § S.
254 She knows whether on September 4, 1985, AAG of the Civil Division Willard was the “main Washington” attorney who had ex parte communication with Judge Altimari. She was co- counsel with Chief Begleiter in Platsky v CIA, 953 F. 2d 26 (2d Cir 1991), and knows the evidentiary burden to prove a Bivens First Amendment claim. She reviewed for accuracy the 1995 Gordon Brief submitted to the Second Circuit. If provided a non-disclosure agreement waiver, she would advise whether she would fulfill her Rule 3.3 duty to cure misrepresentations of fact and law including in her Ruppert Brief submitted to Judge Altimari. §§ E, P, S, T, U.
1990 AUSA Greenwald was the AUSA originally assigned in 1985 to Robert v Holz and was replaced by AUSA Noyer (deceased). She knows the reason why she was replaced as Robert v Holz lead counsel. She knows whether her command and control officer ordered AUSA Noyer to implement the “Barrett nonacquiescence policy” and withhold material facts from Judge Wexler with the intent to deceive Judge Wexler in order to protect the sources and methods of a DIA-CIA-FBI counterintelligence “plumber” unit. If provided a non-disclosure agreement waiver, she will advise whether in 2010 she would fulfill her Rule 3.3 duty to cure misrepresentations of fact and law made to Judge Wexler when she was Robert v Holz counsel.
1990 AUSA David Nocenti was one of the EDNY AUSAs assigned to the Ruppert cases who implemented the “Jackson nonacquiescence policy” of Chief Begleiter. He knew that DAAG Kuhl’s July 25, 1985 House Judiciary Subcommittee testimony that the nonacquiescence policy had ended on June 3, 1985 was false testimony because he knew the 1986 HHS computer was “rigged” to apply the Jackson regulation, 20 C.F.R. § 416.1130 (b). He became AG Spitzer’s 1998-2007 General Counsel and implemented the NYS Navarro and Ahlborn “nonacquiescence” policies whereby the federal government’s 50 % share of “incorrectly” provided Medicaid was not reimbursed to the HHS Secretaries, but diverted for purposes not intended by the Congress or the NYS Legislature. If provided a non-disclosure agreement waiver, he would advise whether in 2010 he would fulfill his Rule 3.3 duty to cure misrepresentations of fact and law made regarding the Jackson “nonacquiescence” policy in federal Court, the Navarro and Ahlborn nonacquiescence policies in federal and state court, and communications with the Grievance Committee seeking Robert’s disbarment. §§ E, F, X, EE.
1990 AUSA Arthur Hui was one of the EDNY AUSAs assigned to the Ruppert cases who implemented the “Jackson nonacquiescence policy” of Chief Begleiter with the knowledge that DAAG Kuhl’s July 25, 1985 House Judiciary Subcommittee testimony that the nonacquiescence policy had ended on June 3, 1985 was false. He was the EDNY lead counsel in, Robert v Diefenderfer, cv 90-3430 (Wexler, J). He knew the content of the OMB documents revealed the $ amount of the “Jackson nonacquiesence policy” reductions. He knew the 1986- 1991 SSA computer had been “rigged” to apply the Jackson regulation, 20 C.F.R. § 416.1130 (b). He knew that Robert agreed to withdraw the complaint without prejudice because Robert knew AUSA Hui knew he had a duty to inform AG Barr that HHS General Counsel Astrue was implementing the 1982 Jackson and 1990 Ruppert “nonacquiescence” policies contrary to his June 22, 1989 Senate Finance Committee testimony that the nonacquiescence policy had ended. He knew the “Barrett nonacquiescence policy” had been implemented and material facts were withheld from Judge Wexler in the FBI and OMB Declarations that he filed with the Court. If provided a non-disclosure agreement waiver, he would advise whether in 2010 he would fulfill his Rule 3.3(a)(3) duty to cure misrepresentations of fact and law made to Judge Wexler.
255 1990 AUSA Bruce Nims was one of the EDNY AUSAs assigned to the Ruppert cases who implemented the “Jackson nonacquiescence policy” of Chief Begleiter with the knowledge that DAAG Kuhl’s July 25, 1985 House Judiciary Subcommittee testimony that the nonacquiescence policy had ended on June 3, 1985. He became the EDNY lead counsel in 1986-1996 Gordon and knew that the Barrett nonacquiescence policy had been implemented whereby material facts regarding the clandestine “Jackson nonacquiescence policy” was withheld from Judge Spatt, the Second Circuit, and the Supreme Court. If provided a non- disclosure agreement waiver, he would advise whether he would fulfill his Rule 3.3(a)(3) duty to cure misrepresentations of fact and law that he made to the Second Circuit in Gordon. § T.
1990 AUSA Igou Allbray was one of the EDNY AUSAs assigned to the Ruppert cases who implemented the “Jackson nonacquiescence policy” of Chief Begleiter with the knowledge that DAAG Kuhl’s July 25, 1985 House Judiciary Subcommittee testimony that the nonacquiescence policy had ended on June 3, 1985. In 1995 he became the Chief of the Civil Division successor to Chief Begleiter. He knew the Barrett nonacquiescence policy had been implemented in Gordon whereby material facts were withheld from Judge Spatt, Second Circuit and Supreme Court. If provided a non-disclosure agreement waiver, he would advise whether in 2010 he would fulfill his Rule 3.3 duty to cure misrepresentations of fact and law that SG Days and AAG of the Civil Division Hunger made to the Supreme Court in their Gordon Brief. § T.
1990-2010 AUSA Susan Riley was one of the EDNY AUSAs assigned to the Ruppert cases who implemented the “Jackson nonacquiescence policy” of Chief Begleiter with the knowledge that DAAG Kuhl’s July 25, 1985 House Judiciary Subcommittee testimony that the nonacquiescence policy had ended on June 3, 1985 was false. She would become the Chief of the Civil Division succeeding Chief Begleiter and Chief Allbray. She has been the supervising attorney of AUSA Mahoney in Ford v Shalala. She knows that the 2007 Ford remedy approved by AAG of the Civil Division Keisler and SSA Commissioner Astrue is based on the “Christensen nonacquiescence policy” because the Ford remedy Notices do not include citations to the “Jackson” regulation, 20 C.F.R. § 416.1130 (b), which she knows is not being equally enforced for Ford class members residing 47 states including NYS. She knows that the January 24, 2007 Senate Finance Committee testimony of SSA Commissioner Astrue, her client, was false testimony and she has an ongoing 28 U.S.C. §535(b) duty to report this fact to AG Holder. . Chief Riley was also AUSA Mahoney’s K & A supervising attorney in Robert VII v DOJ and knows whether the “Barrett nonacquiescence policy” was implemented whereby material facts were withheld from the Second Circuit in AUSA Mahoney’s April 3, 2006 letter- Brief. She is presently the K & A supervising attorney in Robert VIII v DOJ, HHS, and SSA and knows whether the “Barrett nonacquiescence policy” was implemented in the 2005 Robert injunction Motion of U.S. Attorney Mauskopf. She knows why U.S. Attorney Mauskopf withheld material facts from Judge Garaufis that confirmed Robert’ allegation that the DIA- CIA-FBI sources and methods included the “rigging” of the HHS-SSA computer to apply nonacquiescence standards which were to have ended prior to 1989. She knows that SSA Commissioner Astrue’s June 22, 1989 and January 24, 2007 Senate testimony was false. If provided a non-disclosure agreement waiver, she would advise whether in 2010 she would fulfill her Rule 3.3 duty to cure misrepresentations of fact and law were made to Judge Garaufis and the Second Circuit in Robert VII v DOJ and in Robert VIII v DOJ, HHS, and SSA. § E.
256 As to the application of the Bowen v City of New York clandestine policy remedy, Robert placed EDNY U.S. Attorney Lynch on Notice that she has a K & A duty to ask former- 1992-1993 EDNY U.S. Attorney and 1993- 2002 SDNY U.S. Attorney White how in 2000 she reconciled the continued application of the “Jackson nonacquiescence policy” to deny 1994-2010 SDNY April 9, 1994 Ford class members benefits after DAG Holder’s 2000 decision not to perfect U.S. Attorney Lynch’s Ford appeal. Upon information and belief, former-EDNY-SDNY U.S. Attorney White would request a nondisclosure agreement waiver to answer the question.
Upon information and belief, SDNY U.S. Attorney White knows that the “Jackson nonacquiescence policy” funds had been diverted to pay for the construction and maintenance of the “do not exist” NSA TSP data banks. She had objected to the 1995 “wall” that 1994-1997 DAG Gorelick established to shield DOJ attorneys from illegal NSA warrantless wiretaps. http://media.collegepublisher.com/media/paper441/documents/5nkzph1t.pdf. She knew whether FBI counterintelligence agents had accessed the “do not exist” NSA TSP data banks. She knew whether FBI Director Judge Freeh knew that FBI counterintelligence agents were accessing information from the NSA TSP data banks without the knowledge of the FISC based on the Unitary Executive theory that the “exclusivity provision” of the FISA “unconstitutionally” encroached upon the President’s Article II duty to protect the nation from terrorists. §§ K, CC.
EDNY U.S. Attorney Lynch’s knowledge of the mens rea of 1993- 2002 SDNY U.S. Attorney White’s knowledge of the “do not exist” 1993-2002 NSA TSP data banks and of AAG of the OLC Dellinger’s April 5, 1994 Use of Military Personnel for Monitoring Electronic Surveillance, and the February 14, 1995 Standards for Searches Under Foreign Intelligence Surveillance Act, takes on greater importance because 2002-2003 SDNY U.S. Attorney Comey had been a 1987-1993 SDNY AUSA. As a result on March 10, 2004 in his confrontation with WH Counsel Gonzales in AG Ashcroft’s hospital room in the presence of FBI Director Mueller, 2004 DAG Comey had an institutional memory of whether he ever had knowledge of the existence of the “do not exist” pre-9/11 NSA TSP data banks that SDNY U.S. Attorney White knew existed in 1995 when the “wall” was established by DAG Gorelick, the 1993-1994 DOD General Counsel who succeeded 1989-1993 DOD Secretary Dick Cheney’s 1992-1993 DOD General Counsel Addington. Hence, the importance of U.S. Attorney Lynch reading the Robert VII v DOJ “FISC Robert” documents that on March 1, 2004 OIPR Attorney Baker determined to withhold pursuant to the FOIA Exemption 1 and the “Glomar Response” defenses.
Then, if after U.S. Attorney Lynch performs her K & A duty and reads for accuracy the Robert VII v DOJ FRCP 11 signed “uncorrected” and the “corrected” 2004 Declarations of OIPR Attorney Baker, and AUSA Mahoney’s FRCP 11 signed Second Circuit April 3, 2006 letter-Brief, along with any Robert VII v DOJ ex parte “c (3) exclusion” Declarations and Robert VII v DOJ case file notes and e-mails, U.S. Attorney Lynch will know whether AUSA Mahoney implemented the “Barrett nonacquiescence policy” by withholding material facts from Judge Garaufis and the Second Circuit. Then if AG Holder provides non-disclosure agreement waivers for 1990 EDNY AUSAs: EDNY Chief Robert Begleiter, Caproni, Zwany, Greenwald, Nocenti, Hui, Nims, Allbray, and Riley, and U.S. Attorney Lynch reads the Robert FOIA, Ruppert, Gordon, and Ford case file notes and e-mails, she can perform her K & A duty by contacting this class of 1990 EDNY U.S. Attorneys and asking appropriate questions. Then she can provide a “heads up” memo for AG Holder when he considers the quiet settlement offer.
257 KK. U.S. Attorney Lynch is on Notice that the Second Circuit 2002 U.S. v Reyes “conscious avoidance” of facts holding applies to her own July, 2010 K & A duty to review the Ford and the Robert FOIA litigation decisions of AUSA Mahoney
The appellant has placed U.S. Attorney Lynch on Notice that the Second Circuit U.S. v. Reyes, 302 F. 3d 48 (2d Cir. 2002), definition of the “conscious avoidance” of facts applies to her own July, 2010 K & A supervising attorney review of the Ford v Shalala and Robert FOIA litigation decisions of EDNY AUSA Mahoney. When reviewing the Ford and Robert FOIA case file notes and e-mails, U.S. Attorney Lynch will learn facts known by AUSA Mahoney when her command and control officer ordered her to implement a “conscious avoidance” of facts litigation strategy as part of her implementation of the “Barrett nonacquiescence policy” by withholding material facts from Judge Sifton in Ford and Judge Garaufis and Second Circuit in Robert VII v DOJ. U.S. Attorney Lynch should inform AG Holder of this “conscious avoidance” of facts strategy when he considers the appellant’s offer of a quiet settlement. §§ B, C, AAA.
In its August 26, 2002 decision, the Second Circuit provided a “conscious avoidance” definition. “Conscious avoidance” occurs when a person deliberately closes his eyes to avoid having knowledge of what would otherwise be obvious to him.” Id. 49-50. Emphasis added.
Although the 2002 Reyes standard was applied in a criminal case, if the Robert VIII v DOJ, HHS, and SSA appeal is reinstated, then appellant will argue that the Second Circuit should apply the “conscious avoidance” of facts standard to U.S. Attorney Lynch’s July, 2010 review of the Robert VIII v DOJ, HHS, and SSA case file notes and e-mails. Therefore, U.S. Attorney Lynch should have her eyes wide open when she applies the Reyes standard to the facts that she will learn from reading AUSA Mahoney’s Robert VIII v DOJ, HHS, and SSA case file notes and e-mails and her 2001-2010 Ford v Shalala case file notes and e-mails. § F.
AG Holder will learn that the overuse use of the “Glomar Response” has affected the ability of DOJ attorneys to recognize facts. A DOJ culture of “conscience avoidance” of facts has been created because of the extension of the “do not admit or deny” analysis to obvious facts that are “denied” in order to protect a Top Secret that results in the violations of federal laws. This leads to the “Barrett nonacquiescence policy” whereby DOJ attorneys have a duty to withhold material facts from Judges and the AG’s chain of command in order to provide the AG with a plausible deniability defense to the fact that federal laws were violated based on the Unitary Executive theory that this is necessary to protect the nation from terrorists. § D.
Former-CIA General Counsel Sporkin understood the DOJ “conscious avoidance” of facts culture when he rendered his Duggan v. Bowen, 691 F. Supp. 1487 (D.C.D.C. 1988), decision. He admonished AG Meese for continuing to defend the HHS nonacquiescence policy after the July 25, 1985 sworn House Judiciary Subcommittee testimony when the Congress was informed that the HHS “nonacquiescence” policy had ended on June 3, 1985:
“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.
258 U.S. Attorney Lynch will understand the DOJ “conscious avoidance” of facts culture continues in 2010 when she asks AUSA Mahoney to answer the “Jackson question the appellant presented to the Second Circuit at the Robert VIII v DOJ, HHS, and SSA pre-argument conference. AUSA Mahoney will be unable to answer the Jackson question without informing U.S. Attorney Lynch that she knows that SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee testimony that the nonacquiescence policy had ended prior to his becoming HHS General Counsel in 1989, remains in July, 2010 as uncured false testimony. §§ J, U.
U.S. Attorney Lynch will understand the DOJ “conscious avoidance” of facts culture continues in 2010 when she asks AUSA Mahoney to solve the Gordon riddle AUSA Mahoney will be unable to solve the Gordon riddle without informing U.S. Attorney Lynch that she knows that HHS General Counsel Nominee Astrue’s June 22, 1989 Senate Finance Committee testimony that the nonacquiescence policy had ended remains in July, 2010 as uncured false testimony. In the alternative, AUSA Mahoney will solve the Gordon riddle by informing U.S. Attorney Lynch that she knows that February, 1996 Supreme Court Gordon Brief of SG Days and AAG of the Civil Division Hunger included false information. §§ G, T.
The following are 10 “obvious” facts that U.S. Attorney Lynch should consider when drafting her “settlement” memo to include answers to the Jackson question and the Gordon riddle in her recommendation whether AG Holder should accept the quiet settlement offer:
1. The July 25, 1985 House Judiciary Subcommittee testimony of DAAG Kuhl that the “Jackson nonacquiescence” policy of HHS General Counsel del Real had ended on June 3, 1985, and that Jackson was not listed as a nonacquiescence case.
2. The June 22, 1989 Senate Finance Committee testimony of Associate WH Counsel Astrue that the HHS nonacquiescence policy had ended.
3. The January 24, 2007 Senate Finance Committee testimony of SSA Commissioner Nominee Astrue that the nonacquiescence policy ended prior to his becoming HHS General Counsel.
4. The April 21, 1986 “Jackson” regulation, 20 C.F.R. § 416.1130 (b), continues in 2010 only to be applied in the Seventh Circuit States.
5. DOJ attorneys provided “Janus-faced” information to Judge Altimari, Judge Wexler, and the Second Circuit in Ruppert v Bowen because the 1982-1989 “Jackson nonacquiescence policy” continues to be applied in the Second Circuit from 1990-2010 as evidenced by the July 16, 1990 ”Ruppert Acquiescence” Ruling and the programming of the 2010 SSA computer not to apply the “Jackson” regulation when computing Second Circuit Ford class members’ 2010 benefits.
6. Either Assistant WH Counsel Astrue lied to the June 22, 1989 Senate Finance Committee that the nonacquiescence policy had ended or SG Days and AAG of the Civil Division Hunger provided false information to the Supreme Court in their February, 1996 Gordon Brief in opposition to the petition for a writ of certiorari defending the nonacquiescence policies by applying the 1984 Mendoza INS offensive collateral estoppel holding to Jackson and Ruppert.
259 7. President Obama and AG Holder, without their knowledge, have breached their 2010 Article II “take Care” duty to equally enforce the law in all 50 States by enforcing the Jackson regulation, 20 C.F.R. § 416.1130 (b), only in Indiana, Illinois, and Wisconsin.
8. President Obama and AG Holder, without their knowledge, have breached their 2010 Article II “take Care” duty because they have not cured the Ford due process violations by including in the 2010 Ford remedy Notices a citation to the regulations upon which benefits were reduced or terminated from 1994-2010 as required by Judge Sifton’s unappealed 1999 Ford decision.
9. The 2010 DOD Cyber command 1982-2001 pre-9/11 NSA TSP data banks and the 2002-2005 post-9/11 NSA PSP data banks, were not funded with classified OMB Budget funds.
10. No government attorneys has complied with the April 1, 2009 NYS Professional Model Rules Rule 3.3 duty to cure misrepresentations of facts and law made to Judges or tribunals.
When U.S. Attorney Lynch applies the Reyes “conscious avoidance” standard to these 10 “obvious” facts and answers the Jackson ” question and the Gordon riddle, she will know AG Holder has to be provided a settlement memo that comes to grips with the fact that in July, 2010 AG Holder is breaching his Article II “take Care” duty to equally enforce the SSI regulations in all 50 States. AG Holder has a 2010 Article II duty to end the due process violations visited upon the Ford class members whose July, 2010 Notices that reduce their monthly SSI checks by one third, do not cite to the Jackson regulation, 20 C.F.R. § 416.1130 (b). Therefore, U.S. Attorney Lynch, the 2000 U.S. Attorney when DAG Holder decided not to perfect the Ford appeal, should not be implementing a 2010 “conscious avoidance” of facts litigation strategy in Ford v Shalala or in Robert VIII v DOJ, HHS, and SSA. §§ B, C, E, G, H.
U.S. Attorney Lynch should consider using the U.S. v Reyes “conscious avoidance” of facts standard when consulting with her clients’ General Counsels as to whether they should recommend to their clients that they accept the quiet settlement offer. Acting HHS General Counsel Childress can discuss these 10 “obvious” facts when presenting the offer of a quiet settlement to HHS Secretary Sebelius. Acting SSA General Counsel Black can present these 10 “obvious” facts when presenting the offer of a quiet settlement to SSA Commissioner Astrue. If they determine the “obvious” facts are not so obvious, then they will have their own K and A supervising attorneys to read the July 27, 2010 FOIA requested documents and answer the Jackson question and the Gordon riddle for their clients. §§ B, R, S, T, X, Y, Z, EE, FF.
U.S. Attorney Lynch should consider using the U.S. v Reyes “conscious avoidance” of facts standard when seeking the guidance of AG Holder’s chain of command attorney DOJ Chief FOIA Officer-Associate AG Perrelli. Because he was the 2000 DAAG of the Civil Division, he will apprehend the significance of applying the “conscious avoidance” of facts standard to his own knowledge of the 2000 Ford case file notes and e-mails and the 2000 Robert v National Archives case file notes and e-mails. He knows that he had a K & A duty to make sure accurate information was provided to Judge Sifton, Judge Wexler, and the Second Circuit in those cases. When he reads the Robert v National Archives, Robert III v DOJ, Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA case file notes and e-mails, he will know the answer to the Jackson question and Gordon riddle and recommend a quiet settlement. §§ B-K, Z.
260 LL. U.S. Attorney Lynch’s Notice of the Second Circuit’s 2005 National Council holding that the attorney-client privilege does not apply to secret DOJ policy decisions
The appellant has placed U.S. Attorney Lynch on Notice that the Second Circuit National Council of La Raza, et. al. v DOJ, 411 F. 3d 350 (2d Cir. 2005), decision that the attorney-client privilege does not apply to DOJ policy decisions. This National Council holding applies to documents upon which the DOJ “silent nonacquiescence policies” have been applied to Ford class members that have not been reported to Congress as required by 28 U.S.C. § 530D, and which are not national security “exception” standards that AG Holder has ratified.
In its May 31, 2005 National Council decision, the Second Circuit held that the attorney-client privilege could not be used to shield the release of a FOIA requested document that established an immigration DOJ policy that was being enforced by DOJ:
We cannot allow the Department to make public use of the Memorandum when it serves the Department’s ends but claim the attorney-client privilege when it does not. Because the Department, in light of all the facts and circumstances set forth above, incorporated the OLC Memorandum into the Department’s policy, the attorney-client privilege cannot here be invoked to bar that Memorandum’s disclosure.” Id. 361. Emphasis Added.
One purpose of the FOIA request for the DOJ “Jackson nonacquiescence policy” documents is to pierce the attorney-client privilege veil. By application of the Second Circuit’s National Council decision, AG Holder should make public the DOJ document upon which the 1982-2010 DOJ “Jackson nonacquiescence policy” is based because this is the standard upon which the federal SSI benefits of millions of 2010 Ford v Shalala class members residing in 47 States are reduced by one-third. If as per the DAAG Kuhl’s April 20, 1984 letter to ACUS, the “Jackson nonacquiescence policy” is based on SG Lee’s memo upon which he decided not to file a Jackson petition for a writ of certiorari, then this would be the document that should be released. “We have reviewed the memoranda to the Solicitor General which led to the decision not to petition for certiorari in Jackson.” http://www.snowflake5391.net/kuhl.pdf. §§ R, S, T.
One purpose of the FOIA request for the DOJ “Ruppert nonacquiescence policy” documents is to apply 28 U.S.C. § 516 because the AG is to make all litigation decisions. Whereas HHS Secretary Bowen, the client, published the July 16, 1990 “Ruppert Acquiescence” Ruling, no AG has made public the DOJ “Ruppert nonacquiescence policy” document of the attorney. When in 2002 Congress enacted 28 U.S.C. §530D and established the duty of the AG to report nonacquiescence cases to Congress, there was no attorney-client exception. The only “exception” not to report a “nonacquiescence” case to Congress is if the nonacquiescence policy is a national security secret. Acting AAG of the OLC Barron knows whether the DOJ Ruppert nonacquiescence policy” is a DOJ classified case as determined by 1988-1991 AG Thornburgh when in 1990 he applied the “Thornburgh-Giuliani” acquiescence analysis. “Although, in our view, the position adopted by Mr. Giuliani's office -- not to defend the Secretary of Health and Human Service's non-acquiescence policy -- is the correct legal formulation, we do not accept the proposition that espousal of non-acquiescence by other U.S. Attorneys' offices constitutes misconduct.” http://www.snowflake5391.net/1-9-89Shaheen.pdf.
261 If AG Holder acquiesces to the Second Circuit’s 2005 National Council holding, then he will make public the DOJ 1982 “Jackson nonacquiescence policy” and the DOJ 1990 “Ruppert nonacquiescence policy” documents. This would be consistent with AG Holder’s March 19, 2009 FOIA Guidelines and his April 7, 2010 Open Government Plan. §§ A, D, YY, ZZ.
If U.S. Attorney White performs her K & A supervising attorney duty and learns from Acting AAG of the OLC Barron that there is a “National Council nonacquiescence policy” document, then that document should be released. Then the public will know that AG Holder has adopted AG Gonzales’ decision that the Second Circuit had “incorrectly” decided National Council and that pursuant to the Unitary Executive theory, DOJ attorneys have a duty not to acquiesce to its holding because the DOJ policy continues to be application of the attorney- client privilege to nonacquiescence decisions. If Acting AAG of the OLC Barron informs U.S. Attorney Lynch that National Council is a classified nonacquiescence policy case subject to President Bush’s § 530D “exception” to protect the national security, then DOJ FOIA Officer will use the “Glomar Response” to deny the July 27, 2010 FOIA request. §§ D, L.
The May 31, 2005 National Counsel decision was rendered prior to Judge Garaufis deciding AG Gonzales’ Robert VIII v DOJ, HHS, and SSA Motion for the Robert injunction that was approved by AAG of the Civil Division Keisler. 2010 AAG of the Civil Division West will learn from reading the 2005 National Council and Robert VIII v DOJ, HHS, and SSA case file notes and e-mails the names of the “client” and the “attorney” who made the litigation decision that the Second Circuit had “incorrectly” decided National Council. 2010 AAG of the Civil Division West can learn whether AAG of the Civil Division Keisler made this 2005 decision because he knew in 2005 that in 2002 Barrett was one of the President Bush’s November 2, 2002 Presidential Signing Statement “exception” cases. AAG of the Civil Division West’s knowledge of whether AAG of the Civil Division Keisler made the “National Council nonacquiescence policy” decision is an important fact if AAG of the Civil Division Keisler implemented the “Barrett nonacquiescence policy” and withheld material facts from Judge Garaufis in AG Gonzales’ 2005 successful Motion securing the Robert injunction. § AAA.
If Acting AAG of the OLC Barron informs U.S. Attorney Lynch that the there is no unclassified or classified “National Council nonacquiescence policy” document because the DOJ policy has always been to acquiesce to the Second Circuit’s National Council holding, then AG Holder should be making public the DOJ Jackson and Ruppert “nonacquiescence” policy documents. If the attorney-client privilege does not apply to the documents that memorialize AG Smith’s approval of HHS Secretary Schweiker’s 1982 “Jackson nonacquiescence policy” decision and AG Thornburgh’s approval of HHS Secretary Sullivan’s 1990 “Ruppert nonacquiescence policy” decision, then in 2010 AG Holder should be releasing the DOJ Jackson and Ruppert nonacquiescence policy documents. If AG Holder releases the DOJ Jackson and Ruppert nonacquiescence policy documents, then in 2011 historians could answer the how- could-it-have-happened Jackson question and solve the Gordon riddle. §§ R, S, T, YY, ZZ.
Therefore, if U.S. Attorney Lynch learns that there is no unclassified or classified “National Council nonacquiescence policy” document, then she knows that National Council is the DOJ “law” of the Circuit. She should be informing HHS Secretary Sebelius and SSA Commissioner Astrue, her clients, this fact when they consider the quiet settlement offer. § G.
262 MM. U.S. Attorney Lynch’s Notice of the Second Circuit’s 2006 Doe I and Doe II decisions re USG prior restraint orders as applied to U.S. citizens seeking information
The appellant has placed U.S. Attorney Lynch on Notice that the Second Circuit Doe I and Doe II v Gonzales, 449 F. 3d 415 (2d. Cir. 2006), decision provides a legal standard that can be applied when the USG seeks a prior restraint to prevent a U.S. citizen from securing information. He requested that U.S. Attorney Lynch apply this standard when reviewing for accuracy of the information that AG Gonzales provided Judge Garaufis in his 2005 Motion seeking the Robert injunction given Robert’s allegation that his First Amendment right of access to the Courts has been violated by DOJ attorneys as revealed in the Robert v Holz, Robert VII v DOJ, and Robert VIII v DOJ, HHS, and SSA documents, case file notes and e-mails that U.S. Attorney Lynch has a K & A duty to read when considering the quiet settlement offer. § AAA.
In its May 23, 2006 Doe I and Doe II v Gonzales decisions, the Second Circuit reviewed the FBI issuance of the administrative subpoena for National Security Letters (NSL) when the information being sought by the FBI was claimed to be “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” 18 U.S.C. § 2709(a) & (b)(2). The two plaintiffs were internet service providers (ISP) who were the NSL recipients. The NSL instructed them not to inform the NSL target that the FBI issued the administrative subpoena. Judge Marrero and Judge Hall declared the NSL statute unconstitutional on its face and as applied, and issued preliminary injunctions declaring the “gag order” unconstitutional because it operated as a content based prior restraint on speech that was not sufficiently narrowly tailored to achieve a compelling government interest. Doe I v Gonzales, 334 F. Supp. 2d 471 (SDNY 2006). Doe II v Gonzales, 386 F. Supp. 2d 66 (DC Conn. 2006).
Because the Congress amended the NSL statute during the appeal, the Second Circuit did not address the First Amendment issues and remanded Doe I for a decision based on the application of the new statute. As to Doe II, the Government conceded that the case was moot because the name of the target had been disclosed and the case was dismissed for mootness.
However, Judge Cardamone wrote a concurring opinion to which the appellant will cite in the appellant’s Robert VIII v DOJ, HHS and SSA Brief if the appeal is reinstated. He highlighted the strict scrutiny standard that there must be a compelling government interest to prohibit a First Amendment right because a narrowly tailored standard is applied to a restraint:
A permanent ban on speech seems highly unlikely to survive the test of strict scrutiny, one where the government must show that the statue is narrowly tailored to meet a compelling government interest.” Id. at 422.
Circuit Judge Cardamone explained the dangers of an over extension of the government’s use of the “mosaic theory” in a First Amendment prior restraint context:
The government advanced the “mosaic theory” as one of the reasons to support a permanent ban on speech. That theory envisions thousands of bits and pieces of apparently innocuous information, which when properly assembled create a picture. At bottom the government’s assertion is
263 simply that antiterrorism investigations are different from other investigations in that they are derivative of prior or concurrent investigations. Thus, permanent non-disclosure is necessary because in the government’s view, all terrorism investigations are permanent and unending.
The government’s urging that an endless investigation leads logically to an endless ban on speech files in the face of human beings knowledge and common sense: witnesses disappear, plans change or are completed, cases are closed, investigations terminate. Further a ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens. Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence. Id. 422. Emphasis Added
Circuit Judge Cardamone explained the need to balance national security secrecy needs with the Constitutional rights of U.S. citizens:
While everyone recognizes national security concerns are implicated when the government investigates terrorism within our Nation’s borders, such concerns should be leavened with common sense so as not forever to trump the rights of citizenry under the Constitution. Cf. Hamdi v Rumsfeld, 542 U.S. 507, 536 (2004) (”(A) state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”). As Justice Black wrote in New York Times Co. v United States, 403 U.S. 713 (1971): “the word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.” Id. at 719 (Black, J., concurring). Id. at 14. Emphasis added.
In his Robert VIII v DOJ, HHS, and SSA Brief, the appellant will argue that the Judge Garaufis’ extant injunction is a First Amendment violation because it is a prior restraint without a compelling need. He will argue Judge Garaufis was the victim of a Chambers v Nasco “fraud upon the court” because AG Gonzales and AAG of the Civil Division Keisler implemented the “Barrett nonacquiescence policy” and withheld material facts from Judge Garaufis. He will argue Judge Cardomone’s dicta. “Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence.” §§ D, F, G, AAA.
Robert will also make the Dinler v City of New York argument that Judge Garaufis erred because he did not read in camera the FOIA requested document that Robert asserted proved that DOJ attorneys had withheld material facts from Judge Garaufis based on their good faith belief that this was necessary to maintain the Top Secret existence of the “do not exist” 1984-2001 NSA TSP and the 2002-2005 “immaculate construction” NSA PSP data banks. He will seek a Dinler remand at which Judge Garaufis would read in camera the withheld documents. § XX.
264 Judge Cardone’s May 23, 2006 concurring opinion was written after AUSA Mahoney submitted her April 3, 2006 Robert VII v DOJ Brief to the Second Circuit that was reviewed by then-AAG of the Civil Division Keisler. http://www.snowflake5391.net/RobertvDOJbrief.pdf. Chief FOIA Officer-Associate AG Perrelli will learn from reading the Robert VII v DOJ classified documents, case file notes, and e-mail whether AAG of the Civil Division Keisler and AUSA Mahoney implemented the “Barrett nonacquiescence policy” in the Robert VII v DOJ letter-Brief by withholding material facts from the Second Circuit panel that established that Robert was a FISA “aggrieved person” with standing as per 50 U.S.C. § 1806(f). §§ M, CC.
Chief FOIA Officer-Associate AG Perrelli’s will learn of the First Amendment prior restraint violation when he reads the case file notes and e-mails that reveal that AG Gonzales and AAG of the Civil Division Keisler had implemented the “Barrett nonacquiescence policy” by withholding material facts in the 2005 Robert VIII v DOJ, HHS, and SSA Motion securing the December 9, 2005 injunction prohibiting Robert from filing a new FOIA complaint without Judge Garaufis’ pre-clearance order. Associate AG Perrelli will learn that AAG of the Civil Division Keisler intended to deceive Judge Garaufis by withholding the material facts that were contained in the Robert VII v DOJ withheld classified documents, case file notes and e-mails. He knew in 2005 that the documents revealed the violations of the “exclusivity provision” of the FISA, the false facts that the FBI has evidence that Robert was a terrorist or agent of a foreign power, and violations of the PCA by the DIA-CIA-FBI counterintelligence “plumber” unit. § M.
Chief FOIA Officer-Associate AG Perrelli can corroborate these First Amendment prior restraint “Barrett nonacquiescence policy” facts by asking 2010 Associate DAG Baker why his 2004 Robert VII v DOJ command and control officer withdrew his “uncorrected” Declaration and instructed him to file the “corrected” October 1, 2004 Declaration. Upon information and belief, former-OIPR Counsel Baker will advise that it was determined that his “uncorrected” Declaration provided too much information regarding the reasons why he made his March 1, 2004 decisions to use FOIA Exemption 1 and the “Glomar Response” defense. His command and control officer knew that at some point the public would learn of the connect-the-dots facts of the March 10, 2004 confrontation in AG Ashcroft’s hospital room between WH Counsel Gonzales and AG Ashcroft, DAG Comey, and FBI Director Mueller re the NSA PSP because WH Counsel Gonzales could not secure the written approval of Acting AG Comey. § CC.
Upon information and belief, 2010 Associate DAG Baker will also inform Chief FOIA Officer-Associate AG Perrelli of his 2004 knowledge of the TALON program that DOD Secretary Rumsfeld was implementing that in 2007 DOD Secretary Gates ended. He will explain how the FBI Investigative Data Warehouse (IDW) had been established in March, 2003 to horizontally link with the DOD’s TALON Program with an expected completion date of December, 2006 with what would become the FBI Master Data Warehouse. “As a single point of entry for accessing investigative data sources, IDW provides FBI users with the capability to readily acquire, store, share, use, disseminate, and protect the information needed to successfully accomplish their assignments and the FBI’s overlapping missions in intelligence, counter- terrorism, and criminal investigation” Description of the IDW Project. Emphasis Added. http://www.eff.org/files/filenode/foia_idw/20080408_idw01-Project-Description.pdf. If he reads the USG’s April 3, 2006 letter Brief, he would advise whether AAG of the Civil Division Keisler had withheld material facts that provided Robert’s 50 U.S.C. §1806 (f) standing. §§ E, F, G, CC.
265 2010 Associate DAG Baker also knows whether President Obama has complied with his National Security Act, 50 U.S.C. 413 (a), duty to report the fact that the military officers in the DOD Cyber Command have access to the “do not exist” 1984-2010 NSA TSP and PSP data bank farms from which they can harvest 1984-2010 domestic “law enforcement” information regarding U.S. citizens without a FISC warrant. “The Department works closely with our partners throughout the government—including law enforcement agencies, the Intelligence Community, the Department of Homeland Security, and the Department of Defense—to support cybersecurity and inform policy discussions, as we did during the President’s Cyberspace Policy Review, which was completed in May, 2009.” November 17, 2009 testimony to the Senate Judiciary Committee: Cybersecurity: Preventing Terrorist Attacks and Protecting Privacy Rights in Cyberspace. http://judiciary.senate.gov/pdf/11-17-09%20Baker%20Testimony.pdf
2010 Associate DAG Baker also knows whether the DOD Cyber Command NSA Director Lt. General Alexander applies DOD standards that are equivalent to the FBI’s Domestic Investigative Operational Guidelines (“DIOG”) Guidelines that were established pursuant to AG Judge Mukasey’s December 1, 2008 The Attorney Guidelines for Domestic FBI Operations, and determine if Robert’s rights were violated. http://www.usdoj.gov/ag/readingroom/guidelines.pdf. This is an important fact for Chief FOIA Officer-Associate AG Perrelli to know because Robert’s is alleging that his First Amendment Right of Access to the Courts continue in 2010 to be violated in Robert VIII v DOJ, HHS, and SSA because the “Barrett nonacquiescence policy” is being implemented in 2010. No USG attorney has complied with the April 1, 2009 NYS Professional Model Rules Rule 3.3 and informed Judge Garaufis and the Second Circuit that there had been misrepresentations of fact and law in the Robert VII v DOJ April 3, 2006 letter Brief and in AG Gonzales’ 2005 Robert VIII v DOJ, HHS, and SSA Motion for the injunction that prohibits Robert from filing a new FOIA without a pre-clearance order. §§ E, F, M, CC.
Chief FOIA Officer-Associate AG Perelli also can learn from 2003-2010 FBI General Counsel Caproni, who requested the Robert NSLs that are connect-the-dots documents to Robert VII v DOJ withheld classified documents that FBI General Counsel Caproni read in 2004. She knows that if the FBI’s Domestic Investigative Operational Guidelines had been applied to the Robert SNLs, then they would not have been issued. She knows whether FBI agents used NSLs to secure access to Robert’s Azzarelli escrow account into which the five million dollars was posted that never existed. She knows this escrow fund was at issue in the disbarment proceeding that was triggered by government attorneys seeking to eliminate their opposing counsel. FBI General Counsel Caproni knows who authorized the NSLs for Robert’s ISP so that Robert’s e- mail would be subject to warrantless surveillance as were his 1980s telephone conversations. She also knows the violations of the “exclusivity provision” of the FISA and the PCA limitations on military domestic “law enforcement” by NSA military officers. §§ E, F, G, M, Y, CC, AAA.
Chief FOIA Officer-Associate AG Perelli will know who knew what and when at the FBI when he reads the July 27, 2010 FOIA requested FBI documents subject to President Obama’s E.O. 13,256 internal review process. He will know the name of the declassifier who reads the 1985 sealed Robert v Holz “Fraud Against the Government” documents and decides whether to extend the “automatic” 25 year standard to provide for perpetual secrecy. “Further a ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens.” Id. 422.
266 As per the Doe I and Doe II v Gonzales mosaic of documents theory made by AG Gonzales to the Second Circuit, Chief FOIA Officer-Associate AG Perrelli can read the July 27, 2010 FOIA requested mosaic of documents that proves true this theory. He will learn from reading this “mosaic of documents” that Robert’s almost incredible allegations are true. He will learn that AAG of the Civil Division Keiser had committed a Chambers v Nasco “fraud upon the Court” in Robert VIII v DOJ, HHS, and SSA in securing the 2005 Robert injunction by implementing the “Barrett nonacquiescence policy” and intentionally withholding from Judge Garaufis the facts revealed in the Robert VII v DOJ withheld classified documents that he knew Judge Garaufis had determined not to read in camera. He will learn from reading the mosaic of documents along with the Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA “c (3) exclusion” ex parte Declarations filed by U.S. Attorney Mauskopf and Acting EDNY U.S. Attorney Campbell and their companion case file notes ands e-mails, the 2003-2007 mens rea of AAG of the Civil Division Keisler that is a direct link to the 1986 mens rea of Assistant WH Counsel Keisler revealed in the NARA “Peter Keisler Collection”, NARA “Perot”, and “FBI Abshire” classified documents that will be subject to ISCAP review. §§ F, L, Y, Z, AA, BB, CC.
Judge Cardamone’s Doe I and Doe II v Gonzales dicta will be the underpinning of the appellant’s Robert VIII v DOJ, HHS, and SSA Brief if the appeal is reinstated on September 3, 2010. He will argue that Chief FOIA Officer-Associate AG Perrelli is contemporaneously violating Robert’s First Amendment Right of Access to the Courts because he knows that the “Barrett nonacquiescence policy” continues to be implemented in 2010. He knows he is exploiting the fatal flaw in the President Obama’s E.O. 13,526 internal review process as explained in the July 27, 2010 letter to AAG of the OLP Schroeder. Chief FOIA Officer- Associate AG Perrelli, one of the 1998-2000 supervising attorneys in Robert v National Archives and Robert v DOJ, knows the content of the Robert FOIA withheld classified documents and knows that the “Glomar Response” classified documents that are not subject to the § 1.5 declassification and §1.7 misclassification review process, contain the smoking gun facts that AAG of the Civil Division Keisler knew and withheld from Judge Garaufis and the Second Circuit in Robert VII v DOJ that provided Robert with 50 U.S.C. § 1806(f) standing. §§ F, AAA.
The appellant will argue that the Second Circuit should apply the Doe I and Doe II v Gonzales dicta as the legal standard used to review Judge Garaufis’ Robert VIII v DOJ, HHS, and SSA injunction and hold that there would be a First Amendment pre restraint violation if AG Gonzales and his chain of command attorneys implemented the “Barrett nonacquiescence policy” and intentionally withheld material facts from Judge Garaufis for the purpose of deceiving Judge Garaufis in order to protect the sources and methods secret of a DIA-CIA-FBI counterintelligence “plumber” unit that used information from the “do not exist” 1984-2001 NSA TSP for domestic “law enforcement” purposes. He will request a Dinler remand in order that Judge Garaufis can read in camera the documents that Robert asserts will prove that AG Gonzales and AAG of the Civil Division Keisler intended to deceive Judge Garaufis. §§ F, G.
U.S. Attorney Lynch has a duty to provide a heads up analysis of the Robert VIII v DOJ, HHS, and SSA Second Circuit Record if the appeal is reinstated. In her settlement memo, she should apply the Doe I and II v Gonzales prior restraint dicta to the 2005 Robert injunction facts that were withheld from Judge Garaufis and the Second Circuit and will not be included in the Robert VIII v DOJ, HHS, and SSA Record reviewed by the Second Circuit. § G.
267 NN. U.S. Attorney Lynch’s Notice of the Second Circuit’s 2008 U.S. v Aref decisions re the Article III in camera review of documents asserting the “states secret” defense
The appellant has placed U.S. Attorney Lynch on Notice of the Second Circuit United States v Aref, 533 F. 3d 72 (2d Cir. 2008), decision re the standard of review when the USG files an ex parte Declaration explaining national security risks if the USG’s evidence became public information. The Court held that a trial Court is to read in camera an ex parte Classified Information Procedure Act (CIPA) Declaration that the USG files to protect state secrets.
In its July 2, 2008 Aref decision, the Second Circuit affirmed the district court judge’s decision to seal the government’s ex parte Classified Information Procedure Act (CIPA) Declaration. However, first the Second Circuit read in camera the “states secrets” document:
The district court made sufficiently specific findings under seal that justified denying public access to the documents. Moreover, based on our own in camera review of the Government’s submission to the district court, we conclude that the Government supported the need to keep the Opposition and Order sealed through a declaration or declarations from persons whose position and responsibility support an inference of personal knowledge; and that the Government make a sufficient showing that disclosure of the information sought would impair identified national security interests in substantial ways. Therefore, the district court’s ruling as to higher values was supported by specific findings based on record evidence. Id. 82. Emphasis added.
The Second Circuit also discussed the public policy issue of judiciary transparency when there is a presentation of ex parte facts which lead to Judges making in camera decisions. In dicta, the Court noted the issue of the public’s perception of the “judiciary’s legitimacy and independence” as an Article III check and balance whenever Judges seal evidentiary documents:
Although we affirm the district court in this case, we reinforce the requirement that district courts avoid sealing judicial documents in their entirety unless necessary. Transparency is pivotal to public perception of the judiciary’s legitimacy and independence. ‘The political branches of government claim legitimacy by election, judges by reason. Any step that withdraws an element of the judicial process from public view makes the ensuing decisions look more like fiat and requires rigorous justification.’ Hickel in Eng’g, L.C. v Bartell, 429 F. 3d 346, 348 (7th Cir. 2006). Because the Constitution grants the judiciary “neither force nor will, but merely judgment,” The Federalist No. 78 (Alexander Hamilton), courts must impede scrutiny of the exercise of that judgment only in the rarest of circumstances. This is especially so when a judicial decision accedes to the requests of a coordinate branch, lest ignorance of the basis for the decision cause the public to doubt that ‘complete independence of the courts of justice (which) is peculiarly essential in a limited Constitution. Id.” Id. 83. Emphasis Added.
268 In none of the Robert FOIAs has the USG used the “states secrets” defense. In the cases in which the USG has used FOIA Exemptions 1, 3, and the “Glomar Response” defenses, the Article III Judge did not read the classified documents in camera. Rather, the Article III Judges deferred to the USG’s representation of the facts in their Declarations. Judge Garaufis and the Second Circuit applied this “total deference” standard in Robert VII v DOJ in which Judge Garaufis and the Second Circuit never read in camera the “FISC Robert” documents that revealed whether Robert’s almost incredible allegations were true. This included the Second Circuit’s total deference to AUSA Mahoney’s April 3, 2006 letter-Brief re the FISA standing provision, 50 C.F.R. 416.1806 (f), with the knowledge that the Robert VII v DOJ Record did not include the sealed “FISC Robert” documents that OIPR Baker had read and decided to withhold pursuant to the use of FOIA Exemption 1 and the “Glomar response” defenses. §§ M, MM, CC.
If the Robert VIII v DOJ, HHS, and SSA appeal is reinstated, then the appellant will cite to Aref dicta and argue that Judge Garaufis erred because he never read in camera any of the mosaic of Robert FOIA documents that were withheld based on national security reasons. This included the Robert v National Archives “Bulky Evidence File” documents withheld by NARA Acting Archivist Thomas. The plaintiff was enjoined from filing a FOIA complaint because of Judge Garaufis’ decision denying plaintiff’s Motion seeking a preclearance order to file a FOIA complaint. The appellant will argue that Judge Garaufis should have read in camera the Robert FOIA withheld classified documents that Robert alleged would prove his grave allegation that the DOJ attorneys had committed a fraud upon the court by implementing the “Barrett nonacquiescence policy” and intentionally withholding “smoking gun” facts from the Judges in Robert v National Archives, 1 Fed. Appx. 85 (2d Cir. 2001), Robert v U.S. Department of Justice, 2001 WL 34077473 (EDNY), 26 Fed. Appx. 87 (2d Cir. 2002), and Robert VII v DOJ, 2005 U.S. Dist. LEXIS 39616, 193 Fed. Appx. 8 (2d Cir. 2006), cert. den. 127 S.Ct. 1133 (2007).
The appellant will also gravely argue in Robert VIII v DOJ, HHS, and SSA, that the Second Circuit’s “legitimacy and independence” has been despoiled by the DOJ attorneys who implemented the “Barrett nonacquiescence policy” and intentionally withheld material facts from the Second Circuit with the knowledge that Judge Garaufis would apply a “total deference” standard and not read in camera the FOIA requested documents which were not “state secrets” documents. He will inform the Second Circuit of the status of the July 27, 2010 de novo FOIA documents. He will argue that AUSA Mahoney, U.S. Attorney Lynch, and DOJ Chief FOIA Officer-Associate AG Perrelli have 2010 access to the FOIA requested documents that are subject to AG Holder’s March 19, 2009 FOIA Guidelines with its presumption of disclosure standard. He will argue that they have a NYS Rule 3.3 to cure any misrepresentation of fact and law made to Judge Garaufis and the Second Circuit in Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA that are revealed in a review of the July 27, 2010 FOIA requested documents. §§ E, F, G.
The appellant will respectfully assert that because Judge Garaufis and the Second Circuit applied a “total deference” standard in Robert VII v DOJ, the Article III Judges did not read in camera the 1980s connect-the-dots documents that would have triggered in 2004-2010 the Bowen v City of New York clandestine policy remedy for millions of Ford nationwide class members. If in 2011 the automatic 25 year declassification rule is applied and 1980s withheld classified Robert documents are released, then historians and investigative reporters will be reading 1985-1986 documents that prove that the Judges were unwitting dupes. §§ F, G, L, M, P.
269 The appellant will argue that the Second Circuit should apply the Aref dicta and render a decision that places AG Holder on Notice that when he defies the Second Circuit and implements the “Barrett nonacquiescence policy” by withholding material facts from the Second Circuit, it not only shows disrespect to the Second Circuit, but affects the perception of the public’s belief in the “legitimacy and independence” of the Court. As a result of the Second Circuit’s “total deference” standard, millions of Ford class members due process rights have not been remedied. “Transparency is pivotal to public perception of the judiciary’s legitimacy and independence.”
Because the Second Circuit read in camera the state secrets at risk in Aref and kept the “state secrets” secret, the Second Circuit should read in camera the classified documents that the appellant asserts prove whether USG attorneys deceived Judge Garaufis and the Second Circuit in Robert VII v DOJ. Because the USG never used a “state secrets” defense in Robert VII v DOJ, or any of the Robert FOIAs, the Second Circuit’s reading the classified Robert documents will not place the national security at any more risk than when the Court read the Aref documents. § F.
Therefore, the appellant will cite to Aref in his argument that the Court should reverse Judge Garaufis Robert VIII v DOJ, HHS, and SSA decisions, including his injunction decision, and instruct Judge Garaufis to read the FOIA withheld documents in camera. The appellant will argue that because of the injunction and the pending July 27, 2010 FOIA requests that Judge Garaufis be provided a time certain to require AG Holder to produce for in camera review the documents upon which AG Gonzales and AAG of the Civil Division Keisler based their 2005 Motion to enjoin Robert from filing any new FOIA action without a pre-clearance Order. § AAA.
Whereas in Aref AG Holder could reasonably make the “states secrets” argument, he will be hard pressed to explain to the Second Circuit why the national security would be at risk if the 1980s Robert VII v DOJ “FISC Robert” documents were read in camera by Judge Garaufis. This is a difficult argument because in December, 2005 President Bush informed the public and terrorists of the existence of the “do not exist” 2002-2005 “immaculate construction” NSA PSP data banks. The public’s December, 2005 knowledge of the NSA PSP data banks is an important Robert VII v DOJ, HHS, and SSA time line fact because AG Gonzales’ April 3, 2006 letter Brief to the Second Circuit asserted that Robert did not have 50 U.S.C. §1806 (f) standing notwithstanding the facts revealed in the “FISC Robert” documents that were withheld pursuant to OIPR Baker’s March 1, 2004 use of the FOIA Exemption 1 and the “Glomar Response” defense. If the Second Circuit decides to remand the case and instruct Judge Garaufis to perform an “Aref” in camera review of the Robert VII v DOJ “FISC Robert” documents, then AG Holder should know what Judge Garaufis will learn from reading those documents. §§E, F, G, CC, AAA.
Hence, the importance of U.S. Attorney Lynch’s settlement memo for AG Holder to include a discussion of the Aref “legitimacy and independence” of the Judiciary issue. AG Holder should know whether by application of the Aref standard, Judge Garaufis and the Second Circuit will read the Robert VII v DOJ withheld classified documents and learn whether AG Gonzales and AAG of the Civil Division Keisler had implemented the “Barrett nonacquiescence policy” with the intent to deceive Judge Garaufis. Then she should read the 2005 injunction case file notes and e-mail. Then U.S. Attorney Lynch should be noting those documents as factors for AG Holder to consider when he decides whether to accept the appellant’s offer of a quiet settlement prior to the Robert VIII v DOJ, HHS, and SSA September 3, 2010 reinstatement date.
270 OO. U.S. Attorney Lynch is on Notice of the Second Circuit 2008 ACLU v DOD decision explaining an Article III Judge’s checks and balances duty in FOIA cases
The appellant has placed U.S. Attorney Lynch on Notice that the Second Circuit in ACLU v DOD, 543 F. 3d 59 (2d Cir. 2008), rejected the USG’s argument that an Article III Court should defer to the USG’s assessment of risk to the national security. If there is a reinstatement of the appeal, then the appellant will argue that the Second Circuit should reverse Judge Garaufis’ injunction decisions because Judge Garaufis blindly deferred to the USG’s arguments in granting AG Gonzales’ 2005 Motion for the injunction and denying Robert’s 2008 Motion for a pre-clearance Order to seek documents that prove a fraud upon the court by DOJ attorneys, without holding a hearing or reading in camera FOIA requested documents. § G.
In its September 28, 2008 ACLU v DOD decision, the Second Circuit issued an expansive holding that Congress intended that there not be Article III deference to the agency’s use of the FOIA classified exemptions, and there should be in camera review of withheld classified documents. “As FOIA applies government-wide and no one agency administers it, no agency is entitled to deference in interpreting its provisions.” Id. 10. Emphasis Added.
Although this was a FOIA Exemption 7(F) decision regarding photographs of abusive treatment of detainees compiled for law enforcement purposes and the issue was the risk of violence if the pictures were released, the appellant cites to this case because it is a Second Circuit FOIA tutorial on separation of powers. The Second Circuit cited to the legislative history of the FOIA and its 1986 amendments, to explain the intent of the Article I Congress that the Article III Judiciary was to be a check and balance on the Article II Executive’s use of FOIA exemptions to prevent the public from using the FOIA to learn how federal agencies work. If the appeal is reinstated, then the appellant will argue that it is a separation of powers case. He will argue the Second Circuit has an Article III checks and balances responsibility to review de novo Judge Garaufis 2005 and 2008 injunction decisions made without holding any hearings.
The Second Circuit explained that Congress intended the FOIA was to encourage public disclosure of federal information so the pubic would “know what their government is up to.”
FOIA’s purpose is to encourage public disclosure of information in the possession of federal agencies so that the people may “know what their government is up to.” U.S. Dep’t of Justice v Reporters Com. For Freedom of the Press, 489 U.S. 749, 772-773 (1988) (internal quotation and emphasis omitted). “Official information that sheds light on an agency’s performance of its statutory duties falls squarely within that statutory purpose.” Id. at 773. The release of information of this sort vindicates FOIA’s basic purpose “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978); see also Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004)(describing FOIA as a “structural necessity in a real democracy”). Id. 9-10. Emphasis Added.
271 The Second Circuit reviewed the de novo standard it uses when reviewing a District Court’s FOIA Summary Judgment decision. The Court explained that when there was doubt as to a government FOIA decision to withhold a requested document, the burden of persuasion to withhold the document is on the government because there is a presumption of disclosure:
Further, FOIA expressly provides for de novo review of agency decisions to withhold records and places the burden of persuasion on the agency. Reporters Comm., 489 U.S. at 755; see also § 552(a)(4)(B) ("[T]he court shall determine the matter de novo . . . and the burden is on the agency to sustain its action."). Doubts, therefore, are to be resolved in favor of disclosure. FLRA, 958 F.2d at 508; accord, e.g., Local 3, International Brotherhood of Electrical Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988). Id. 10. Emphasis Added.
The Second Circuit explained the interplay between use of FOIA Exemption 1 to protect national security secrets and President Bush’s March 25, 2003 E.O. 13,292 § 1.7 misclassification of documents standard as to whether documents were properly classified, or improperly classified to conceal violations of law or embarrassment to persons or an agency:
FOIA’s exemptions 1, 5 U.S.C. § 552(b)(1), exempts from disclosure records that are “(A) specifically authorized under certain established by an Executive Order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to the such Executive Order.” Executive Order 13, 292 “prescribe a uniform system for classifying, safeguarding, and declassifying national security information.” Exec. Order No. 13, 292, 68 Fed. Reg. 15,315 (Mar. 25, 2003). It also sets limits on what may be classified, by what authority and for how long. First among the limits are prohibitions against classifying information in order to “conceal violations of law, inefficiency, or administrative error” or “prevent embarrassment to a person, organization, or agency.” Id. § 1.7(a).
Although Executive Order 13, 292 is not a law, FOIA incorporates its safeguards into Exemption 1. § 552(b)(1)(B). Indeed, earlier versions of these prohibitions were included in Executive Order 11,662 (a precursor to Executive Order 13, 292) when congress initially incorporated such safeguards into exemptions 1 in 1974, Pub. L. No. 93-502, 88 Stat. 1561 (1974). See Exec. Order No. 11,652, § 4, 37 Fed. Reg. 5209 (Mar. 8, 1972)(“In no case shall information be classified in order to conceal inefficiency or administrative error, (or) to prevent embarrassment to a person or Department….”). Not only were similar such safeguards thus contemplated by Congress’s 1974 amendment of exemption 1, but the current safeguards were also in force at the time of the 1986 amendments to FOIA. See Exec.Order No. 12,356, § 1.6(a), 47 Fed. Reg. 14,874 (1982)(In no case shall information be classified in order to conceal violations of law, inefficiency, or administrative error; (or) to prevent
272 embarrassment to a person, organization, or agency….”). While the President could theoretically modify the executive branch’s classification standards to abrogate these safeguards, substantially the same safeguards have been and in force, and incorporated into FOIA Exemption 1, from 1974 to present.” Id. 27-31 . Emphasis Added.
The Second Circuit noted that the USG had conceded that the photographs yielded evidence of government wrongdoing, but that the release of the documents would not add to the public’s knowledge of the government’s wrongdoing. The Second Circuit rejected this argument because the central purpose of the FOIA was for furthering “governmental accountability” and the “special importance of the law accords to information revealing official misconduct”: Even though we are not compelled to balance interests where there is no more than a de minimis privacy interest at stake, we note that contrary to the defendants' suggestion there is a significant public interest in the disclosure of these photographs. The defendants concede that these photographs yield evidence of governmental wrongdoing, but nonetheless argue that they add little additional value to the written summaries of the depicted events, which have already been made public. This contention disregards FOIA's central purpose of furthering governmental accountability, and the special importance the law accords to information revealing official misconduct. Robbins, 437 U.S. at 242. ("The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." (internal citation omitted)). The defendants cite several cases in which public information rendered the incremental value of additional disclosure too slight to outweigh privacy interests, 20 but the court in each of those cases expressly found that there was no reason to believe the information would document government misconduct. 21 Governmental misconduct is conceded here, (Appellants' Br. 15 (noting that several personnel were disciplined in connection with the Army CID investigations)), and we accordingly note that the public interest in disclosure of these photographs is strong. In any event, there is no more than a de minimis privacy interest in withholding the redacted photographs. Id. 74-75. Emphasis Added.
If there is a reinstatement of the appeal, then the appellant will argue that Judge Garaufis 2005 injunction decision and his 2009 decision to deny the September 3, 2008 Motion for a pre- clearance order, thwarted the core purpose of the FOIA’s “special importance of the law accords to information revealing official misconduct.” The appellant will argue that the documents reveal whether DOJ attorneys had withheld facts to intentionally deceive Judge Garaufis. § F.
Hence, the importance of U.S. Attorney Lynch reading the Robert FOIA documents that will be subject to President Obama’s December 29, 2009 E.O. 13256 §1.7 misclassification process to determine whether documents were misclassified to conceal violations of the laws and embarrassment of officials and agencies. AG Holder should know whether there will be Article III review of documents that are subject to §1.7 misclassification decisions. § M.
273 PP. U.S. Attorney Lynch’s Notice of the Second Circuit’s Circuit 2008 Doe v Mukasey checks and balances standard of an in camera review of classified documents
The appellant has placed U.S. Attorney Lynch on Notice that the Second Circuit in its Doe, et. al. v Mukasey, Mueller, and Caproni, 549 F 3d 861 (2d Cir. 2008), decision regarding NSLs and the subsequent October 20, 2009 remand decision of Judge Marrero in Doe v Holder, 665 F. Supp. 2d 426 (SDNY 2009), established the Article III in camera review checks and balances rule as applied to the FBI’s use of National Security Letter (NSL). U.S. Attorney Lynch is placed on Notice of the July 27, 2010 FOIA request for the release the Robert SNLs. These are connect-the-dots documents to the Robert VII v DOJ or Robert VIII v DOJ, HHS, and SSA FOIA documents withheld documents. If there is reinstated appeal, then the appellant will argue that the Second Circuit should apply the Doe v Mukasey Article III checks and balances of Article II classified decisions to the Robert FOIA withheld connect-the-dots documents that reveal the DOJ’s 1986-2010 “Barrett nonacquiescence policy” litigation decisions. §§ D, AAA.
In its December 15, 2008 in Doe v Mukasey decision, the Second Circuit revisited the Barrett issue of Article III Judges deferring to good faith Article II actions of government attorney-patriots to protect the nation from terrorists. The Second Circuit rejected AG Judge Mukasey’s argument that there should be Article III deference to the FBI’s decision to impose a national security non-disclosure “gag” provision on the recipient of an NSL, because there can be no meaningful Article III review if an Article III Judge blindly defers to the AG:
There is not meaningful judicial review of the decision of the Executive Branch to prohibit speech if the position of the Executive Branch that speech would be harmful is “conclusive” on a reviewing court, absent only a demonstration of bad faith. To accept deference to that extraordinary degree would be to reduce strict scrutiny to no scrutiny, save only the rarest of situations where bad faith could be shown. Under either traditional strict scrutiny or a less exacting application of that standard, some demonstration from the Executive Branch of the need for secrecy is required in order to conform the nondisclosure requirement to First Amendment standards. The fiat of a government official, though senior in rank and doubtless honorable in the execution of official duties, cannot displace the judicial obligation to enforce constitutional requirements. “Under no circumstances should the Judiciary become the handmaiden of the Executive.” United States v Smith, 899 F. 2d 564, 569, (6th Cir. 1990). Id. 870 Emphasis Added.
In a reinstated appeal, the appellant will argue that because Judge Garaufis did not hold a hearing prior to granting AG Gonzalez 2005 injunction Motion, that a “strict scrutiny” standard became “no scrutiny” when the Second Circuit rendered its Robert VII v DOJ without ever reading in camera the withheld classified documents. He will argue that if there was a remanded Robert VIII v DOJ, HHS, and SSA injunction hearing, then Judge Garaufis has an Article III duty to read in camera withheld Robert FOIA classified documents to determine whether the DOJ attorneys had the bad faith intent to withhold documents to deceive Judge Garaufis. “Under no circumstances should the Judiciary become the handmaiden of the Executive.” § F.
274 On October 20, 2009, in the remanded case Doe v Holder, Judge Marrero dismissed the action. However, the dismissal came only after Judge Marrero read in camera the documents and June 16, 2009 ex parte Declaration of a FBI Supervisory Special Agent which explained the reason why the non-disclosure prior restraint was necessary to protect the national security from terrorists. “The Court finds that the Government has carried its burden and that continuation of the nondisclosure requirement imposed on Plaintiffs is justified. “ Id. 429.
Judge Marrero explained his application of the Second Circuit’s December 15, 2008 remand decision as applied to the appellant’s First Amendment claim:
In John Doe, Inc., the Second Circuit set forth the standard for judicial review of an NSL nondisclosure requirement. The Circuit Court, interpreting the NSL statutes in light of the need to balance Executive Branch discretion regarding national security with First Amendment interests, found that courts should uphold a nondisclosure requirement only upon an “adequate demonstration” by the Government that “a good cause exists reasonably to apprehend a risk of an enumerated harm…linked to international terror or clandestine intelligence activities.” Id. at 882. Id. 430. Emphasis Added.
Judge Marrero explained the “good reason” not to disclose after reading the document and applying the “link between disclosure and risk of harm is substantial” standard:
To demonstrate a “good reason,” the Government must “provide a court with some basis to assure itself based on in camera presentations where appropriate that the link between disclosure and risk of harm is substantial ..” To satisfy its burden, the Government must provide more that a conclusionary assurance that a likelihood of harm exists. Id. slip op. 431. Emphasis Added.
Judge Marrero reviewed Supreme Court cases which established the First Amendment prior restraint standards. Then he discussed the non-conclusionary unclassified facts that AG Holder provided to the Court and generally alluded to classified facts that were included in the ex parte June 16, 2009 FBI Declaration, and explained his decision:
The Government’s arguments are further elaborated upon its classified Declaration, and thus largely cannot be detailed here. The Declaration provides information on the underlying investigation, the contents of the challenged NSL, and the Government’s argument regarding why disclosure of the NSL could tip off the target of an ongoing investigation as well as other individuals who are under investigation. Id. 431. Emphasis Added.
After reading ex parte the classified FBI Declaration, Judge Marrero held that the documents established there was an indisputable fact that there was a “substantial” risk to the national security if the there was even disclosure of the fact that the FBI had issued a NSL to seek information re an investigation of international terrorism:
275 On the basis of an in camera review of the Government’s classified Declaration, this Court finds that there is no genuine issue of material fact as to whether the Government’s justification meets the standard set forth by the Second Circuit. The Court is persuaded that the Government has demonstrated that a good reason exists to believe that disclosure may result in harm related to an authorized ongoing investigation to protect against international terrorism or clandestine intelligence activities. Also, as required by John Doe, Inc., the Government has demonstrated to the satisfaction of the Court that the link between the disclosure and the risk of harm is substantial. Id. 432. Emphasis Added.
Judge Marrero explained that disclosure of the SNL could alert the target to the fact of an ongoing investigation. “.. there is a reasonable likelihood that knowledge of Doe’s identity could inform the Government’s target that he or she is still under active investigation.” Id. 13
Judge Marrero held that there was no First Amendment breach because the nondisclosure order was of a limited duration and there could later be a later challenge:
Plaintiffs therefore possess the right to challenge the nondisclosure order again in the future if it remains necessary to do so. As provided by the Second Circuit, in the event subsequent challenges are raised, the standards and burden of proof articulated in John Doe., Inc. will apply.” Id. 433. Emphasis Added.
If there is a reinstated appeal, then Robert will argue his First Amendment right of access to the Courts was violated because he has never had an opportunity to challenge the 2005 assertions of fact made by AG Gonzales at a hearing at which he could present evidence and subpoena USG witnesses. The appellant will argue that the Second Circuit should apply its Doe v Mukasey holding that total deference to DOJ attorneys reasons for a prior restraint is no scrutiny. The appellant will argue that the Second Circuit should direct Judge Garaufis to hold an “injunction” hearing at which the appellant can cross examine the litigation decision makers and request that the Court read in camera Robert FOIA withheld classified documents to determine whether there is a risk to the national security if the documents were released, or whether those documents reveal that DOJ attorneys intended to deceive Judge Garaufis in AG Gonzales’ Motion by application of the NYS Judiciary Law § 487 deception of Judges standard.
The appellant placed U.S. Attorney Lynch on Notice that if the FOIA request for his NSLs is denied, then he will file § 1.5 declassification § 1.7 misclassification requests. Therefore U.S. Attorney Lynch should consult with FBI General Counsel Caproni who knows who ordered the Robert NSLs and where the information secured from the Robert NSLs has been archived along with the 1980s Robert VII v DOJ “FISC Robert” documents. §§ M, MM.
The Second Circuit’s Doe v Mukasey holding may lead to the in camera review of the Robert classified documents. If so, then 2010 judicial scrutiny will test the credibility not only of AG Gonzales, but also of U.S. Attorney Lynch and AG Holder because these documents reveal how the 2010 “Barrett nonacquiescence policy” is being implemented. §§ A, E, YY, ZZ, AAA.
276 QQ. U.S. Attorney Lynch’s Notice of the Second Circuit’s 2009 Doe v CIA dicta re “systemic official action” that applies to the Robert FOIA documents and case file facts
The appellant has placed U.S. Attorney Lynch on Notice that the Second Circuit’s Doe v CIA, 576 F.3d 95 (2d Cir. 2009), dicta explaining a hypothetical “systemic official action” cause of action, applies to the Robert FOIA documents and case file notes facts. U.S. Attorney Lynch has K & A supervising attorney duty to read the Robert FOIA case file notes and e-mails to determine whether there was a “systemic official action” taken by USG attorneys to prevent Robert from securing the release of documents. These documents prove whether USG attorneys implemented the “Barrett nonacquiescence policy” by withholding material facts from Article Judges for the purpose of deceiving the Judges in order to protect the DIA-CIA-FBI sources and methods of “rigging” the SSA computer to apply “nonacquiescence” policy standards. § F.
In its August 5, 2009 Doe v CIA decision, the Second Circuit affirmed the District Court’s dismissal of a Bivens action based on Article III deference to the Article II state secrets defense. However, the Court in dicta discussed the Bivens and Christopher v. Harbury decisions and the hypothetical impact of “systemic official action” of government officials to frustrate a plaintiff “in preparing and filing suits” that would be a viable Bivens complaint alleging a violation of the plaintiff’s First Amendment right of access to the courts:
Hypothetically, were the plaintiffs to plead and prove that their inability to confer with counsel was part of an effort on the part of the CIA to frustrate their ability to bring or pursue an action, they might be able to establish a claim under Bivens v Six Unknown Federal Narcotic Agents, 403 U.S. 388 (1971), or otherwise, see Christopher, 536 U.S. at 413 (recognizing a category of viable law suits in which “access to courts claims are brought to the effect that “systemic official action frustrates a plaintiff or plaintiff class in preparing and filing suits”). That issue is not before us, however. The plaintiffs have alleged no facts that would support such a law suit here, nor have they sought such relief.” Id. n. 9, at 107. Emphasis Added.
Robert has placed U.S. Attorney Lynch on Notice that if AG Holder rejects the offer of a quiet settlement, then in the Robert VIII v DOJ, HHS, and SSA reinstated appeal Robert will make the “systemic official action” argument. This will not be a hypothetical argument because there are two decades of Robert FOIA connect-the-dots documents that reveal the concerted actions by AAG of the Civil Division Willard and his disciples to systemically implement the 1986-2010 “Barrett nonacquiescence policy” to withhold material facts from the Article III Judges. The 1985-2010 Robert FOIA case file notes and e-mails reveal that AAG of the Civil Division Willard and his successors, knew the Robert FOIA requested mosaic of documents revealed the facts necessary for Robert to prove his almost incredible allegations. They knew that because of the Supreme Court’s June 19, 1985 Mitchell v Forsyth holding that rejected the AG’s absolute immunity argument, that Robert had been illegally wiretapped. Every USG attorney decision taken to cover up the illegal wiretapping was a “systemic official action” to thwart Robert from securing FOIA requested documents that would prove that AG Meese had violated the FISA because there was zero evidence that Robert was a terrorist or and agent of a foreign power. The 2010 “Barrett nonacquiscence policy is “systemic official action” evidence. § AAA.
277 U.S. Attorney Lynch has a K & A duty to learn who ordered the FOIA Officers not to docket the de novo FOIA requests for the “FBI Abshire” and the “OMB Jackson” documents being withheld pursuant to the Glomar Response” defense. This is 2010 “systemic official action” because these are connect-the-dots documents to 1980s classified documents. § B, Y, Z.
The appellants placed U.S. Attorney Lynch on Notice of her K & A duty to read the FBI and OMB documents to learn whether they prove true appellant’s almost incredible argument that FBI Director Judge Webster’s December 1986 “task force of departmental general counselors” lied-by-omission to President Reagan to provide President Reagan with a plausible deniability defense to the impeachable offenses of the violation of the Boland Amendment and the Social Security Act by the diversion of off-OMB Budget HHS funds to pay for the “black operations” conducted at IMC and NSA. She will learn whether a DIA-CIA-FBI counterintelligence “plumber” unit provided NSA information to HHS General Counsel del Real for use in the Robert “Fraud Against the Government” investigation in which HHS General Counsel del Real sought the incarceration and disbarment of Robert in order to eliminate the attorney challenging his “Jackson nonacquiescence policy” decision of 1982. §§ B, V, W, AAA.
The appellant has placed U.S. Attorney Lynch on Notice of the July 27, 2010 de novo CIA FOIA requests. Given the gravity of the appellant’s “systemic official action” allegation, U..S. Attorney should include in her “settlement” memo for AG Holder a suggestion that AG Holder request that CIA Director Panetta read the FOIA requested September, 1985 CIA documents. CIA Director Panetta has a 1969-2010 Article I and Article II institutional memory of separation of power issues. He was 1969 Assistant to HHS Secretary Robert Finch, President Nixon’s Director of Office for Civil Rights, 1979-1985 Member of House Budget Committee before becoming Chairman from 1989-1993, President Clinton’s 1993-1994 OMB Director, and President Clinton’s WH Chief of Staff from July 17, 1994 WH Chief of Staff to January 20, 1997. He can read the September, 1985 “North Notebook” documents and 1985 “OMB Jackson” documents and know there has been Article II “systemic official action” to violate laws. § AA.
The appellant has also placed U.S. Attorney Lynch on Notice of the July 27, 2010 DOD FOIA request for the “NSA Guidelines for access to the Cyber Command 1984-2010 data banks” to learn whether they are consistent with The AG Guidelines for Domestic FBI Operations. 2006-2010 DOD Secretary Gates has a 1982-2010 CIA and DOD institutional memory. The appellant has suggested that AG Holder request that 2006-2010 DOD Secretary Gates read the FOIA requested CIA documents because he was 1982-1986 CIA Deputy Director of Intelligence, 1986-1989 CIA Deputy Director, and 1991-1993 CIA Director. §§ AA, BB, CC.
DOD Secretary Gates knows that a 1980s CIA stovepipe existed because he did not know that CIA Director Casey had violated the Boland Amendment. In his 1996 Memoir From the Shadows, former-CIA Director Gates explained his knowledge of CIA Director Casey’s violation of the Boland Amendment when he was the CIA Deputy Director of Intelligence:
Thus, by the time of the prohibition on CIA began on October 1, 1984, the action on Nicaragua and the Contras had passed from the CIA to NSC. The details of all of this were known only to a handful of people at CIA headquarter. I was not among them. Id. 392. Emphasis added.
278 The appellant also filed the de novo and new July 27, 2010 DOJ, FBI, CIA, DOD, DNI, HHS, and SSA FOIA requests to prove to U.S. Attorney Lynch, AG Holder, and President Obama that “systemic official action” Top Secret decisions were made by a 1982-2010 daisy- chain of shadow government ” attorney-patriots to divert HHS-SSA “Jackson nonacquiescence policy” funds to pay for illegal domestic DIA-CIA-FBI “black operations” conducted without the knowledge of the “Gang of Eight” or Presidents Reagan, Bush, Clinton, Bush, and Obama. The appellant’s Robert VIII v DOJ, HHS, and SSA “systemic official action” argument will be broader than the violation of Robert’s First Amendment right of access to the Courts. §§ N, YY.
The appellant will allege that the “systemic official action” is being implemented by 2010 fifth column attorney-patriots without the knowledge of President Obama because the “Commander in Chief” of the 2010 daisy-chain of shadow government patriots is not President Obama. DOJ Chief FOIA Officer-Associate AG Perrilli will learn the name of this “Commander in Chief” by asking the command and control officers of the Chief FOIA Officers of the FBI, OMB, NARA, CIA, DOD, DNI, HHS, and SSA the name of their command and control officer who makes the decision to use the “Glomar Response” defense. As per the July 27, 2010 letter to AAG of the OLP Schroeder, the “Commander in Chief” of the command and control officers who make agency “Glomar Response” decisions is not President Obama. The “Glomar Response” decisions are premised on President Obama having a plausibile deniability defense to the 2010 violations of the National Security Act § 413, the “exclusivity provision” of the FISA, the domestic law enforcement limitations of the PCA, and the Social Security Act which Congress intended be equally enforced in all 50 States. §§ C, D, J, K, N, O.
The Doe v CIA “systemic official action” standard requires an allegation of “systemic official action” and the facts to back up the allegation. “The plaintiffs have alleged no facts that would support such a law suit here, nor have they sought relief.” Id. 107.
If the Robert VIII v DOJ, HHS, and SSA appeal is reinstated, then he will be arguing that AG Holder is taking “systemic official action” to prevent Robert from securing the documents which contain the facts the appellant must establish to prove the “systemic official action” that he has alleged occurred. Robert is in a classic Catch 22 litigation position. He has the burden to prove “systemic official action” but he is enjoined from using the FOIA to secure the documents to prove the “systemic official action” of the DOJ. Meanwhile, AG Holder is implementing the “Barrett nonacquiescence policy” and withholding from the Second Circuit the facts he knows prove true Robert’s “systemic official action” allegations. §§ E, F, G, AAA.
However, now because of the Second Circuit’s Doe I and II, Aref, ACLU v DOD, Doe v Mukasey, and Dinler decisions, there is a mechanism for the appellant to carry his Doe v CIA burden to prove “systemic official action” by the USA and the DOJ. He can argue for a remand in order that Judge Garaufis can read in camera the FOIA withheld documents that Robert asserts prove a “systemic official action” of the USG which includes the DOJ’s “Barrett nonacquiescence policy” of withholding facts from Judge Garaufis. §§ MM, NN, OO, PP, XX.
Hence, the importance of U.S. Attorney Lynch reading the documents that Robert will argue to the Second Circuit that Judge Garaufis should read in camera. U.S. Attorney Lynch should include her new knowledge in the settlement memo that she sends to AG Holder.
279 RR. U.S. Attorney Lynch’s Notice of the Second Circuit’s 2009 In Re NY Times Company to Unseal Wiretaps & Search Warrant Materials holding re the release of Title III transcripts Congress intended were confidential law enforcement documents
The appellant has placed U.S. Attorney Lynch on Notice of the Second Circuit’s In re Application of New York Times Company to Unseal Wiretaps & Search Warrant Materials, 577 F.3d 401 (2d Cir. 2009), decision and its heavy burden on the applicant to secure the release of Title III wiretap transcripts. If the appeal is reinstated, then the appellant will be seeking the release of the mosaic of Robert FOIA requested documents to carry his NY Times burden to secure the release of the Robert NSA warrantless and FISC warranted surveillance transcripts. He needs these documents to carry his heavy burden of proof in his putative Bivens complaint that his First Amendment right of access to the Courts had been violated by the federal officials identified in the Robert VII v DOJ “FISC Robert” documents that falsely asserted that FBI Director Judge Webster had evidence that Robert was a terrorist or an agent of a foreign power.
In its August 7, 2009 New York Times decision, the Second Circuit explained the burden on the applicant to show a “good reason” for the release of Title III confidential wiretap transcripts because Congress established a confidentiality and privacy standard to prevent the release of Title III law enforcement transcript to the press and general public:
Accordingly, we conclude that these wiretaps applications have not historically been open to the press and general public. In addition, the Times does not present a good reason why its preferred public policy—monitoring the government’s use of wiretaps and potential prosecutions of public officials --- is more compelling than Congress’s apparent concern for confidentiality and privacy which are reflected in the text to Title III and its legislative history. Id. 410. Emphasis Added.
If the Robert VIII v DOJ, HHS, and SSA appeal is reinstated, then the appellant will argue that his “good reason” for seeking the release of documents is to support his request for the release of his wiretap transcripts and as evidence in his putative Bivens action. He will argue that in order for him to satisfy the Iqbal “plausibility” standard, he needs “hard” evidence to support his almost incredible allegation of “systemic official action” that included DOJ attorneys implementing the “Barrett nonacquiescence policy” by withholding the material facts that the Robert warranted transcripts reveal the primary purpose of the FISC warrants was for information used in the “Fraud Against the Government” investigation of Robert. §§ M, AAA.
The appellant will argue that Congress did not intend for FOIA Exemptions 1, 3 and the “Glomar Response” defenses to be used to cover up the violations of federal laws including presenting false facts to the FISC. He needs the Robert VIII v DOJ, HHS, and SSA documents to support his putative FISC application for the release of the Robert FISC transcripts which reveal whether the wiretaps were targeted to learn the information Robert provided terrorists or the legal advise he provided to his clients. He will argue that the FOIA requested document are needed to prove to the FISC that the DOJ attorneys committed a “fraud upon the court” when they filed the FISC application and the FISC continued certifications knowing that the FBI had zero evidence that Robert was a terrorist or an agent of a foreign power. §§ E, F, G, AAA.
280 The appellant will also argue that the FOIA requested document are needed as connect- the-dots documents to the Robert FISC transcripts for AG Holder to read and then apply the “primary purpose” standard to the application for the FISC warrants as explained in AAG of the OLC Dellinger’s February 14, 1995 Memorandum for Michael Vatis Deputy Director Executive Office for National Security: Re Standards for Searches Under Foreign Intelligence Surveillance Act, http://www.snowflake5391.net/OLC%202-14-95.pdf. The Robert transcripts from the warranted and warrantless wiretaps are the best evidence to prove to AG Holder that the “primary purpose” of the FISC application was not to protect the nation from terrorists, but was to secure evidence for the “Fraud Against the Government” investigation of Robert to eliminate counsel opposing the “Jackson nonacquiescence policy” used to fund the “black operations.”
The appellant will also argue that the FOIA requested document are connect-the-dots documents with the NSA transcripts for AG Holder to read and then apply the PCA “passive- active participation” test explained in AAG of the OLC Dellinger’s April 5, 1994 OLC opinion sent Jo Ann Harris Assistant Attorney General Criminal Division: Re: Use of Military Personnel for Monitoring Electronic Surveillance.http://www.snowflake5391.net/OLC%204-5-94.pdf. The transcripts of the Robert warranted and warrantless wiretaps are the best evidence for AG Holder to determine whether military officers had crossed the “passive-active participation” line that prohibited the military participation in domestic “law enforcement” to monitoring electronic surveillance. This became a timely issue when in June, 2009 the universe of “do not exist” 1984-2010 NSA TSP and PSP data banks were transferred to the DOD Cyber Command. § CC.
As to the confidentiality and privacy issue, the appellant would waive his personal confidentiality and privacy rights. As to the confidentiality and privacy rights of his clients, those rights would be protected by FISA minimization procedures and redaction of their names and any identifying fact information from his representation in 1980s cases. There should be no difficulty eliminating contextual fact information from transcripts over two decades old.
Pursuant to 18 U.S.C. § 2518 (8)(b), an application for a Title III transcript is filed with the Court that ordered the transcripts or a court of competent jurisdiction. Robert would be filing his application with the FISC. Pursuant to 18 U.S.C. § 1806 (f), he would have the burden of proving that he is an “aggrieved person” in 2010. Because the “aggrieved person” issue was specifically briefed for the Second Circuit in Robert VII v DOJ, he would have to overcome AG Holder’s putative res judicata defense. Hence, the importance of Robert securing documents that prove that AG Gonzales had committed a Chambers v. Nasco “fraud upon the court” in AUSA Mahoney’s April 3, 2006 letter-Brief to the Second Circuit given the content of the AG Meese’s Robert FISC application and the Robert NSA transcripts in the custody of the 1980s DIA-CIA- FBI counterintelligence “plumber” unit and the 2004 custody of OIPR Attorney Baker. §§ G, M.
Hence, the importance of U.S. Attorney Lynch performing her K & A duty to read the Robert FISC transcripts because of Robert’s intent seek the mosaic of documents necessary to support his petition to the FISC for the release of the Robert FISC transcripts. If she does not have clearance to read the FISC transcripts, then she should inform AG Holder. Then AG Holder can read the Robert FISC transcripts and apply the Title III NY Times “good reason” test to the Robert FISC transcripts. AG Holder will know whether “fraud upon the court” will be Robert’s “good reason” for the FISC to grant his petition for the release the Robert FISC transcripts. § G.
281 SS. U.S. Attorney Lynch’s Notice of the Second Circuit’s 2009 Arar v Ashcroft holding not to extend “Bivens” jurisdiction does not apply to illegal wiretapping
The appellant has placed U.S. Attorney Lynch on Notice that the Second Circuit’s Arar v Ashcroft, et. al., 585 F.3d 559 (2d Cir. 2009), holding that limits the expansion of Bivens jurisdiction, does not apply to illegal wiretapping. He informed U.S. Attorney Lynch that the Robert FOIA case file notes and e-mails contain connect-the-dots evidence that reveal that USG officials and attorneys implemented the “Barrett nonacquiescence policy” of withholding facts of their personal knowledge of the Robert illegal wiretapping. This resulted in the denial of FOIA actions seeking documents that revealed facts necessary for Robert to carry his burden of proof as to the “plausibility” of his Bivens allegations as explained in Harbury and Iqbal. § AAA.
In its November 2, 2009 Arar decision, the Second Circuit dismissed a Bivens extreme rendition complaint. The en banc majority determined that Congress did not provide a statutory framework upon which a Bivens claim could be applied to the extreme rendition of a person who was not a U.S. citizen. The Second Circuit discussed the application of the Ashcroft v Iqbal “personal involvement” standard for a Bivens complaint to survive a Motion to Dismiss:
Broad allegations of a conspiracy are insufficient; the plaintiff “must provide some factual basis supporting a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end.” Webb v Goord, 340 F. 3d 105, 110 (2d Cir. 2003) (internal quotation marks omitted) (addressing conspiracy claims under 42 U.S.C. 1985). Furthermore a plaintiff in a Bivens action is required to allege facts indicating that the defendants were personally involved in the claimed constitutional violation. See Ellis v Blum, 643 F. 2d 68, 85 (2d Cir. 1981); see also Thomas v Ashcroft, 470 F. 3d 491, 496 (2d Cir. 2006). Id. 569. Emphasis Added.
The Second Circuit reviewed the Bivens cases in various contexts to decide whether an extreme rendition was a “context” for which there could be viable Bivens cause of action that is an extension of the types of cases for which there is a history of Bivens actions.
“This case requires us to examine whether allowing this Bivens action to proceed would extend Bivens to a new “context,” and if so, whether such an extension is advisable.” Id. 572.
The Second Circuit explained that in some cases Congressional intent that that there be open rather than clandestine Court proceedings, is a special factor to consider in cases involving classified material for which the mere discussion may reveal classified information:
And the problems posed by the need to consider classified material are unavoidable in some criminal prosecutions and in other cases where we have a duty, imposed by Congress, to exercise jurisdiction. But this is not such a circumstance or such a case. The preference for open rather than clandestine court proceedings is a special factor that counsel hesitation in extending Bivens to the extraordinary rendition context. Id. 577.
282 AG Holder’s view that there should be limits on the expansion of Bivens actions, is revealed in the November, 2009 Padilla v Yoo Amicus Brief filed by Deputy Assistant Attorney General Michael F. Hertz. He cited to Arar in his support of the litigation position of former-OLC attorney John Yoo. He argued that a Bivens action should not be extended to an OLC decision because the release of an OLC opinion discussing national security issues could distort or deter frank discussions by OLC attorneys with their clients re national security issues:
The specter of a Bivens action, however, could distort the discussions and even deter some officials from partaking in such vital deliberations at all. Given these potential adverse consequences, such Bivens claims, which directly implicate matters of national security and the President’s war powers, and which seek redress regarding important legal and policy discussions and choices, shold not be permitted absent congressional action. See Arar, 2009 WL 352287 at * 17 (Congress is the appropriate branch of government to decide under what circumstances (if any) these kinds of policy decisions – which are directly related to the security of the population and the foreign affairs of the country – should be subjected to the influence of litigation. Id. 19-20. Emphasis Added. http://harpers.org/media/image/blogs/misc/doj_amicus.pdf
If the Robert VIII v DOJ, HHS, and SSA appeal is reinstated, then one of the appellant’s arguments to the Second Circuit will be that his putative Bivens claim was not an “extension” of Bivens. Quite the contrary, the appellant would be arguing that he is seeking the release of the connect-the-dots documents to carry his burden of proof that reveal that DOJ attorneys knew the mens rea of officials and attorneys who knew that the illegal wiretapping of Robert was a viable “Bivens” cause of action based on Mitchell v Forsyth, 472 U.S. 511 (1985). Mitchell is well-settled law that the AG does not have absolute immunity when he has a “good faith” belief illegal wiretapping of a U.S. citizen is necessary to protect the nation from terrorists. Robert will argue that the documents sought in Robert’s unsuccessful September 3, 2008 Motion were connect-the-dots documents to the Robert v Holz and Robert VII v DOJ classified documents that reveal that AG Meese approved the illegal wiretapping of Robert because the DIA-CIA-FBI counterintelligence “plumber” unit needed to eliminate Robert to protect the “Jackson nonacquiescence policy” funding stream to pay for the “do not exist” NSA TSP. §§ K, CC.
The appellant will argue that AG Holder’s Arar national security defense in an enhanced interrogation case war powers case, should not apply in a FOIA in which AG Holder knows Mitchell applies to a NSA targeted U.S. citizen. After AG Holder reads the 1980s Robert FISC application and FISC renewal certifications, he will know that Robert was an 50 U.S.C. § 1806 “aggrieved person.” After AG Holder reads the 2006 Robert VII v DOJ case file notes and e- mails, he will know DOJ attorneys intended to implement the “Barrett nonacquiescence policy” and withhold material classified facts from the Second Circuit and Supreme Court. §§ G, M.
Hence, the importance of U.S. Attorney Lynch applying both the Second Circuit Arar and the Supreme Court’s Mitchell holdings when she reads the Robert VII v DOJ case file notes and e-mails revealing the mens rea of DOJ attorneys. These are facts AG Holder should know when he considers the appellant’s quiet settlement offer. §§ E, F, G, H, M, Y, W, CC, AAA.
283 TT. U.S. Attorney Lynch’s Notice of the Second Circuit 2009 Wilson v CIA deference standard applied to review a CIA Declaration “continued classification” assertion
The appellant has placed U.S. Attorney Lynch on Notice of the Second Circuit’s Wilson v CIA, 586 F. 3d 171 (2d Cir. 2009), decision’s deference standard when reviewing a CIA Declaration “continued classification” certification. The Court deferred to the CIA’s national security decision based on a Declaration of CIA Deputy Director Stephen Kappes and adopted his “continued classification” standard to protect the CIA “sources and methods” in future operations. Pursuant to the appellant’s request for E.O. 13,256 § 1.7 declassification decisions, CIA Director Panetta will decide whether the CIA’s “continued classification” defense applies to CIA documents that reveal violations of the Social Security Act by diverting unaudited SSI funds as an income stream to pay for future “black operations” at the NSA. §§ K, M, Y, Z, CC.
In its November 12, 2009 Wilson v CIA decision that involved CIA Agent Valerie Wilson’s employment contract’s nondisclosure provision, the Court explained that deference to the CIA Director’s decision re classified information, did not mean that there was no judicial review. “Deferential review, however, does not equate to no review.” Id. 185. Emphasis Added.
Judge Raagi explained that the Second Circuit deferred to the detailed non-conclusionary Declaration of CIA Deputy Director Kappes that the national security would be at risk if there were public disclosure of facts re covered CIA agent Wilson. Disclosure would reveal the CIA “sources and methods” used by covered CIA Agent Wilson that could be used by a different covered agent in a future CIA covert operation. Although the Second Circuit deferred to CIA Deputy Director Kappes detailed affidavit, it was only after the Court had applied the “continued classification” standard to its Article III thorough review of the facts of the case.
In Judge Katzmann’s concurring opinion, he published CIA Deputy Director Kappes Declaration which explained why the CIA Deputy Director determined that the “continued classification” was important to conceal the prior CIA “sources and methods” in order that those “sources and methods” could be used in future CIA covert operations with future covert agents:
In addition, CIA intelligence-gathering methods are useful only so long as they remain unknown and unsuspected. Once a method is discovered, “its continued successful use will be in serious jeopardy.” Id ¶ 48. Therefore, “(a)cknowledging cover mechanisms used by the CIA would expose and officially confirm those mechanisms, hindering the effectiveness of the cover for current and future covert employees, as well as current and future intelligence operations. Id. ¶ 58” Id. 199 at n.5. Emphasis Added.
The Second Circuit deferred to the expertise of now former-CIA Deputy Director Kappes. He had 28 years of CIA experience. He started his career with the CIA in 1981 and became the 2000 to 2002 Associate Deputy Director of Operations for Counterintelligence, and Chief of CIA’s Counterintelligence Center. It is not unreasonable to presume that he knew whether both 1981-1985 HHS General Counsel del Real and 1989-1993 HHS General Counsel Astrue had been CIA domestic covered agents when they “rigged” the HHS computer.
284 Thus, the “continued classification” issue is presented in theRobert VIII v DOJ, HHS, and SSA FOIA requested OLC Jackson and Ruppert “nonacquiescence” documents because they reveal whether the 1982-2010 HHS-SSA computer has been “rigged” to deny SSI benefits that were diverted as off-OMB Budget funds to pay for DIA-CIA domestic “black operations” that could not be paid for with classified OMB-Budget funds because the CIA Directors knew these DIA-CIA domestic “black operations” were illegal. This is a timely issue if 1989-1993 HHS General Counsel Astrue was a “past” CIA covered agent when he made his 1990 “Ruppert nonacquiescence policy” decision and 2010 SSA Commissioner Astrue is a “future” covered agent tasked to continue to “rig” the 2010 SSA computer to apply 20 C.F.R. § 416.1130 (b) to deny Ford class members benefits that are diverted to pay for “black operations” in 2010.
The “continued classification” issue is also presented Robertin VIII v DOJ, HHS, and SSA. because AG Holder’s 2010 Associate Deputy Attorney General Baker knows whether the Robert VII v DOJ “FISC Robert” documents reveal that Roberts telephones had been illegally wiretapped and that no DOJ attorney informed the FISC of this fact. This is a 2010 timely issue because he knows whether the “smoking gun” proof of the illegal wiretapping of Robert is contained in the documents that he read on March 1, 2004 when he used the FOIA Exemption 1 and the “Glomar Response” to withheld the Robert VII classified documents. He knows whether there needs to be “continued classification” of those documents in order to protect the 2010 CIA- DIA-FBI “sources and methods” of accessing the same “do not exist” pre-9/11 NSA TSP data banks that are now in the custody of DOD Cyber Command with the knowledge of NSA Director Lt. General Alexander, but without the knowledge of the “Gang of Eight” and President Obama, who has a National Security Act §413(a) duty to report these IC activities.
This is a 2010 CIA “continuing classification” public issue if FBI General Counsel Caproni knows that SSA Commissioner Astrue is a covered agent. FBI General Counsel Caproni knows that the 2010 SSA computer is “rigged” to apply 1982 “Jackson nonacquiescence policy” contrary to Associate WH Counsel Astrue’s June 22, 1989 and SSA Commissioner Nominee Astrue’s January 24, 2007 Senate Finance Committee testimony that the nonacquiescence policy had ended prior to 1989. She knows the name of her command and control officers who ordered her not to fulfill their 28 U.S. C. 535 (b) duty to report to AG Holder her knowledge that SSA Commissioner Astrue lied to the Senate Finance Committee.
Needless to say, this a “red hot” issue if the “FBI Abshire” andRobert II v CIA and DOJ “North Notebook” documents reveal that FBI Director Judge Webster’s December 1986 “task force of departmental general counselors” knew that HHS General Counsel del Real-IMC Chief of Staff del Real was a DIA-CIA covered agent. This is a “white hot” issue if the 1982-2008 “OMB Jackson” documents, now being withheld pursuant to the use of the “Glomar Response” defense, reveal that off-OMB Budget HHS funds were used to pay for the medical supplies and treatment of the Contras without the knowledge of 1986 CIA Deputy Director Gates and 1986 Congressman Panetta, a member of the House Committee on the Budget. This is an “explosive” issue if the FOIA requested 2009 “OMB Jackson” documents reveal that 2009 “Jackson nonacquiescence policy” funds were diverted to pay for the construction and maintenance of the “do not exist” 1984-2009 NSA TSP and PSP data banks now in the custody of the DOD Cyber Command without the knowledge of 2009 DOD Secretary Gates, CIA Director Panetta, DNI Director Blair, FBI Director Mueller, AG Holder, VP Biden, and President Obama. § CC.
285 When Robert files his request for E.O. 13,256 § 1.7 misclassification decisions as to the September, 1985 Robert II v CIA and DOJ “North Notebook” documents, CIA Director Panetta, President Clinton’s 1993-1994 OPR Director and 1994-1997 Chief of Staff, will be confronted with this issue because as the original CIA classifier, he decides whether to extend the classified status of those documents. If he does, then his decision will be reviewed by President Obama’s new § 3.7 National Declassification Center in 2011 when the automatic declassification standard applies to the 1985 Robert II v CIA And DOJ “North Notebook” documents (1985+25=2010).
When Robert files his request for an E.O. 13,256 § 1.7 declassification decision as to the September, 1985 Robert II v CIA and DOJ “North Notebook” documents, DOD Secretary Gates will also be confronted with this issue because he knows that there was a 1980s CIA “stovepipe” which bypassed 1982-1986 CIA Deputy Director for Intelligence Gates and 1986-1989 CIA Deputy Director Gates re violations of the Boland Amendment. However, as President George H.W. Bush’s CIA Director from 1991-1993, it is not unreasonable to presume that he knew whether 1989-1993 HHS General Counsel Astrue was a 1989-1993 CIA covered agent. § AA.
If there are 2010 CIA and DOD appeals to the NARA National Declassification Center, then Robert will request that the Members apply the § 1.7 misclassification standards that prohibit the use of classification standards to 1) conceal violations of law, inefficiency, or administrative error, 2) prevent embarrassment to a person, organization, or agency, and 4) prevent or delay the release of information that does not require protection in the interest of the national security. He will request that the National Declassification Center declassify the FOIA requested NARA “Peter Keisler Collection, NARA “Perot”, and NARA “Robert v National Archives ‘Bulky Evidence File’” connect-the-dots documents along with the Robert v Holz sealed HHS “Fraud Against the Government” investigation of Robert, Robert VII v DOJ FBI and DOJ “FISC Robert”, and Robert III v DOJ FBI “Recarey extradition” documents. § L.
On August 18, 2010, the appellant will serve this White Paper on Associate AG Perrelli to make sure that the appellant’s offer of a quiet settlement is presented to AG Holder. Out of courtesy and respect for CIA Director Panetta and DOD Secretary Gates, he will request that DOJ Chief FOIA Officer Perrelli consult with CIA Chief Information Officer Adolfo Tarasiuk, Jr. and DOD Acting Director, Administration and Management Michael Rhodes to learn if 2010 “stovepipes” exist at the CIA and DOD. He will suggest that Associate AG Perrelli consult with 2010 CIA General Counsel Stephen Preston, the 1993-1995 DOD Principal Deputy General Counsel and 2010 DOD General Jeb Johnson, a 1989-1991 AUSA SDNY who knows that 1983-1998 SDNY Giuliani, the 1981-1983 Associate AG, had honorably and courageously implemented the “just say no” policy by refusing do defend the “Jackson nonacquiescence policy” of AAG of the Civil Division Willard. In this way, AG Holder will know whether during Robert’s request for § 1.7 misclassification decisions, CIA General Counsel Preston and DOD General Counsel Johnson will use the “continued classification” defenses. §§ CC, AAA.
Therefore, AG Holder should be considering the Second Circuit’s Wilson v CIA “continued classification” careful review standard when he considers the offer of a quiet settlement. AG Holder should know the “continued classification” facts because those facts will become a public issue if the appellant files the September 3, 2010 reinstatement. The appellant’s Robert VIII v DOJ, HHS, and SSA Brief and www.snowflake5391.net will become a 2011 roadmap for historians and investigative reporters to file their own FOIA actions. § YY.
286 UU. U.S. Attorney Lynch’s Notice of the Second Circuit’s 2009 Wilner v NSA “bad faith” standard applied to the use of the “Glomar Response” defense
The appellant has placed U.S. Attorney Lynch on Notice of the Second Circuit’s Wilner v NSA 592 F.3d 60 (2d 2009), decision that established a “bad faith” standard when a plaintiff alleges that the NSA affidavits explaining the use the “Glomar Response” defense were used to conceal illegal and unconstitutional actions. If there is a reinstatement of the appeal, then the appellant will argue that the Second Circuit should reverse the Judge Garaufis’ Robert VIII v DOJ, HHS, and SSA decisions and remand the cases to Judge Garaufis to read the documents in camera and apply the apply the “bad faith” test to documents withheld pursuant to the “Glomar Response” defense. This includes the Robert VII v DOJ “FISC Robert” withheld documents that were not reviewed in camera by Judge Garaufis or the Second Circuit. §§ E-H, M, N, CC.
In its December 30, 2009 Wilner v NSA decision, the Court restated its Summary Judgment standard that it conducts a de novo review of the district court’s grant of the Summary Judgment that there was no material dispute of facts between the parties as document disclosure:
We review de novo a district court’s grant of summary judgment in a FOIA litigation. See e.g. Tigue v Dep’t of Justice, 312 F. 3rd 70, 75 (2d Cir. 2002). We also “conduct de novo review when a member of the public challenges an agency’s assertion that a record being sought is exempt from disclosure.” A. Michael’s Piano, Inc. v FTC, 18 F.3d 138, 143 (2d. Cir. 1994. Id. 69.
The Second Circuit rejected the Wilner appellants allegation that the NSA had made a “bad faith” invocation of the Glomar Doctrine for the purpose of concealing illegal or unconstitutional actions because the appellants allegations were mere speculation. The Second Circuit read the NSA affidavits and determined they were logical and plausible, and did “not find any evidence that even arguably suggests bad faith on part of the NSA:
Having concluded that the affidavits were more than sufficiently support the NSA’s claim that FOIA Exemption 3 encompasses confirmation or denial of the existence of the requested records, we now consider plaintiff’s claims that the NSA invoked the Glomar doctrine for the purpose of concealing illegal or unconstitutional actions. We cannot base our judgment on the mere speculation that the NSA was attempting to conceal the purported illegality of the TSP by providing Glomar response to plaintiffs’ requests. A finding of bad faith must be grounded in “evidence suggesting bad faith on the part of the (agency). Larson, 565 F.3d at 864. “Ultimately, an agency’s justification for invoking a FOIA Exemption is sufficient if it appears logical or plausible.” Id. at 862 (internal quotation marks omitted). After reviewing the record before us, we agree with the District Court that the agency’s affidavits and justification are both logical and plausible. We do not find any evidence that even arguably suggests bad faith on the part of the NSA, or that the NSA provided a Glomar response to plaintiffs’ requests for the purpose of concealing illegal or unconstitutional actions. Id. 75. Emphasis Added.
287 The Second Circuit Court relied upon the application of President Bush’s March 25, 2003 E.O. 12,392 § 3.6. Processing Requests and Reviews “Glomar Response” standard that permits USG attorneys to neither admit nor deny a classified fact. This has been a license for a USG attorney not to lie to an Article III Judge when the Article II attorney knows the FOIA requested documents in fact exist, but are being withheld to protect a national security secret that would be revealed by the USG’s use of the FOIA Exemptions 1 or 3 defenses:
The NSA tied its Glomar response to FOIA Exemptions 1 and 3. Exemption 1 permits the nondisclosure of records that are “(A) specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order. 5 U.S.C. § 552(b)(1). In invoking Exemption 1, the NSA specifically relies on Executive Order 12,958, 60 Fed.Reg. 15,315 (April 17, 1995), as amended by Executive Order 12,392, 68 Fed. Reg. 15, 315 (Mar. 25, 2003), which provides an agency may classify records relating to, inter alia, “intelligence activities (including special activities), intelligence sources or methods, or cryptology,” and “vulnerabilities and capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security, which includes defense against transnational terrorism.” 68 Fed. Reg. at 15, 317. Under Executive Order 12,958, as amended, an agency may classify information when “it determines that the unauthorized disclosure of the information reasonably could be expected to result in damages to the national security, which includes defenses against transnational terrorism, an the original classification authority is able to identify or describe the damage.” Id. at 15,315.” Id. 71. Emphasis Added.
The decision was issued on December 30, 2009 without the Court’s knowledge of President Obama’s December 29, 2009 E.O. 13,526 rescinding E.O. 12,392. However, President Obama E.O. 13,256 retained the same § 3.6 “Glomar Response” provision: (a) An agency may refuse to confirm or deny the existence or nonexistence of requested records whenever the fact of their existence or nonexistence is itself classified under this order or its predecessors. Emphasis Added.
As a result, the issue of whether the USG had improperly used the “Glomar Response” defense in the Robert FOIAs to cover up violations of law, including the FISA, will be tested by Robert’s July 27, 2010 request for E.O. 13,256 § 1.5 declassification and § 1.7 misclassification decisions as to the de novo FOIA requests for withheld classified documents in Robert v Holz, Robert III v DOJ, and Robert VII v DOJ, and the use of the “Glomar Response” not to release the 1982-2009 “OMB Jackson” documents. This time it will be President Obama’s Chief FOIA Officers applying the “Glomar Response” defense with the knowledge of the appeal process in which the origination classifying agencies will have a duty to articulate the danger to the national security. The original classifying agencies can appeal any § 1.5 or § 1.7 decision to the § 3.7 National Declassification Center administered by NARA in consultation with CIA Director Panetta, DOD Secretary Gates, and the new DNI Director. § DD.
288 If the Robert VIII v DOJ, HHS, and SSA appeal is reinstated, then the appellant will inform the Second Circuit of the status of Robert’s July 27, 2010 request for E.O. 13,256 § 1.5 declassification and § 1.7 misclassification decisions. Prior to AG Holder filing his Second Circuit Brief, AG Holder will know whether the original classifying authorities were the CIA and DOD. If so, then AG Holder will know whether CIA Director Panetta and DOD Secretary Gates have determined that the release of the sealed Robert v Holz “Fraud Against the Government”, Robert III v DOJ “Recarey extradition”, Robert VII v DOJ “FISC Robert”, and 1982-2009 “OMB Jackson” documents, would place at risk the national security, and the reasons why in 2010 they came to this “continued classification” conclusion. §§ L, M, AA, CC, QQ, TT.
If there is a reinstated appeal, then Robert will make a USG “bad faith” argument which is not based on mere speculation. Quite the contrary, Robert will assert that if the Second Circuit reads in camera the Robert VII v DOJ “FISC Robert” documents, then the Court will have confirmation of the USG attorneys’ “bad faith” deception of the Second Circuit. He will argue the Robert FOIA withheld classified documents were § 1.7 misclassified documents that reveal not only violations of the FISA, PCA, National Security Act and Social Security Act, but that 1986-2010 DOJ attorneys implemented the 1986 “Barrett nonacquiescence policy” and withheld material facts facts from Article III Judges, including the Supreme Court, with an intent to commit a “fraud upon the court” to cover up the illegal post-Mitchell wiretapping. §§ G, M.
The appellant will also be arguing that it notis plausible that the 2002-2005 post-9/11 NSA PSP data banks were constructed and maintained without the use of off-OMB Budget funds because President Bush did not fulfill his 50 U.S.C. 413 (a) duty to report to the Intelligence Committees of the existence of the “do not exist” NSA TSP data banks until December, 2005. The appellant will assert that these were not new 2002-2005 “immaculate construction” data banks, but were the same “do not exist” 1984-2001 NSA TSP data banks that were constructed with off-OMB Budget funds. The appellant will assert that 2010 AAG of the National Security Division Kris and Associate Deputy AG Baker know whether the 1982-2008 “OMB Jackson” documents withheld pursuant to the “Glomar Response” defense, reveal that the NSA TSP and PSP data banks were funded with “Jackson nonacquiecence policy” funds. §§ K, Y, CC.
Hence, the importance of U.S. Attorney Lynch fulfilling her K & A duty and reading the Robert documents withheld pursuant to the “Glomar Response” defense. If U.S. Attorney Lynch does not have clearance to read these documents, then she should inform AG Holder that Robert is alleging the Wilmer “bad faith” standard because DOJ attorneys implemented the “Barrett nonacquiescence policy” and withheld material facts from Judge Garaufis, the Second Circuit, and the Supreme Court in Robert VII v DOJ. Then AG Holder will read the Robert FOIA documents withheld pursuant to the “Glomar Response” defense, and determine for himself whether those documents corroborate Robert’s allegation that off-OMB Budget “Jackson nonacquiescence policy” funds were used to pay for the “do not exist” pre-9/11 NSA TSP data banks now being accessed by 2010 DOD Cyber Command military officers. §§ G, K, Y, CC.
Therefore, when U.S. Attorney Lynch applies the Wilner v NSA “Glomar Response” standard, she will know whether Robert’s “bad faith” allegations are “mere speculation” or the documents corroborate his allegations. If the latter, U.S. Attorney Lynch will have a Rule 3.3 duty to cure DOJ attorneys misrepresentations of fact and law made to the Second Circuit. § E.
289 VV. U.S. Attorney Lynch’s Notice of the Second Circuit’s 2010 Alexander v Cahill First Amendment decision as to jurisdiction over NYS Grievance Committees decisions
The appellant placed U.S. Attorney Lynch on Notice of the Second Circuit Alexander v Cahill, 598 F.3d 79 (2d Cir. 2010), decision that it had jurisdiction to review the NYS Grievance Committees’ attorney disciplinary rules applied to attorney advertising. The Court held the Grievance Committees did not overcome the attorneys’ First Amendment challenge because the State had failed to carry its evidentiary burden to prove the harm caused by the attorneys’ advertisements. This First Amendment quantum of evidence standard can be applied to the information government attorneys provided to the NYS Grievance Committee re Robert.
In its March 12, 2010 decision, the Court remanded the case to the NYS Appellate Division “to take a ‘second look’ with the eyes of the people on it” as to the need for additional substantive evidence to support the NYS Grievance Committees’ attorney advertising rule:
Invalidating a regulation of commercial speech for lack of sufficient evidence under this prong of Central Hudson does not foreclose a similar regulation being enacted validly in the future. Rather, such invalidation returns the matter to the applicable legislating body and “forces (that body) to take a ‘second look’ with the eyes of the people on it.” Guido Calabresi, Forward: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores), 105 Harv. L. Rev. 80, 104 (1991); see also Benjamin v Jacobson, 172 F. 3d 144, 190 (2d Cir. 1999 (en banc)(Calabresi, J. concurring in the result). Id. 91-92. Emphasis Added.
The Court explained that the NYS Grievance Committees did not present a quantum of evidence sufficient to carry their First Amendment commercial speech restriction burden:
Defendants have not submitted any statistical or anecdotal evidence of consumer problems with or complaints of the sort they seek to prohibit. Nor have they specifically identified any studies from other jurisdictions on which the state relied in implementing the amendments. Id. 92.
Although Robert’s alleged First Amendment right of access to the Courts breach is not a commercial speech issue, the Second Circuit established a Government agency’s quantum of evidence burden to support a First Amendment restriction. Robert has alleged that his First Amendment right of access to the Courts was violated because government attorneys provided false facts to the Grievance Committee for the purpose of eliminating an attorney who opposed their nonacquiescence policies that affected the public. One of the reasons he is seeking the declassification of the Robert v Holz, Robert VII v DOJ, Robert VIII v DOJ, HHS, and 28 U.S.C. § 530 D nonacquiescence policy documents, is to present these documents to the Appellate Division Second Department Grievance Committee Justices to prove that government attorneys had intentionally implemented the “Barrett nonacquiecence policy” and withheld material facts in their communications with the Grievance Committee for the purpose of covering up violations of laws. He will argue these government attorneys had breached their NYS Judiciary Law § 487 duty not to deceive the Appellate Division Justices and Robert. § F.
290 He will also argue that these attorneys have breached their April 1, 2009 NYS Rules of Professional Conduct Rule 3.3(a)(3) duty to cure misrepresentations of fact and law made to tribunals. That allegation turns on AG Holder’s decision whether the nondisclosure agreements signed by government attorneys apply when USG attorneys know that DIA-CIA covered agents committed domestic crimes and implemented the “Barrett nonacquiescence policy” to cover up the illegal DIA-CIA-FBI sources and methods. That issue turns on whether government attorneys knew whether the “nonacquiescence” cases were 28 U.S.C. § 530D “exception” cases pursuant to President Bush’s November 2, 2002 Presidential Signing Statement. §§ D- H, AAA.
For example, if AG Spitzer’s Counsel Nocenti knew that Acting SSA Commissioner Mc Steen, SSA Chief Counsel Gonya, and DAAG Kuhl had lied to the July 25, 1985 House Judiciary Committee that the nonacquiescence policy had ended on June 3, 1985 because he knew that EDNY Chief Begleiter and Chief Blum were supervising the “Fraud Against the Government” investigation of Robert that was initiated by HHS General Counsel del Real as a DIA-CIA covered agent, then this is evidence of mens rea of AG Counsel Nocenti’s improper implementation of the Jackson, Barrett, and Navarro nonacquiescence policies. This becomes a Rule 3.3 ethics issue if he does not cure the misrepresentations of fact made to Justice Leis in Azzarelli, Justice Skelos in Robert v Litsky, and to the Appellate Division Grievance Committee.
The Second Circuit’s Alexander v Cahill First Amendment quantum of evidence standard now is the standard that the law enforcement officers U.S. Attorney Lynch and NYS AG Cuomo are to apply when reviewing Robert’s grave allegation that government attorneys had provided false facts to the Grievance Committee in order eliminate an attorney opposing their illegal “nonacquiescence” policies. They can determine whether Robert’s almost incredible allegation is true by simply “following the money” and determining where the NYS Commissioner of Health distributed the federal government’s 50 % share of the “incorrectly” provided Medicaid funds that were recovered in Azzarelli, Crichio, Callahan, and Sullivan when the NYS Inspector General was Roslyn Mauskopf and the NYS SG was Preeta Bansal. §§ B-H, J, T, X, EE, AAA.
NYS AG Cuomo’s Counselor and Chief of Staff Steven Cohen, a former law clerk to Judge Sporkin, has been placed on Notice that the impact on the rule of law by the implementation of a “nonacquiescence” policy that was explained by Judge Sporkin in Duggan, has also impacted the NYS disabled persons to whom the Navarro and Ahlborn nonacquiescence policies were applied. Thus, when he applies the Alexander v Cahill quantum of evidence test after reading the Azzarelli case file notes and e-mails, he will know whether government attorneys, including AG Counsel Nocenti, implemented Barrett and Navarro “nonacquiescence” policies which directly impacted upon the “quantum of evidence” considered by the Appellate Division Justices when they rendered their Robert decision. He will also know whether Robert has a viable Bivens breach of his First Amendment right of Access to the Courts cause of action against the government attorneys who provided false facts to the Appellate Division Grievance Committee Justices and then violated their April 1, 2009 NYS Rules of Professional Conduct Rule 3.3(a)(3) duty to cure misrepresentations of fact and law. §§ E, F, X, EE, AAA.
Hence, the importance of U.S. Attorney Lynch reading the Robert v Holz, Robert VII v DOJ, and Robert VIII v DOJ, HHS, and SSA case file notes and e-mails. Then she will know how the Alexander v Cahill quantum of evidence holding applies to Robert. §§ E, F, AAA.
291 WW. U.S. Attorney Lynch’s Notice of the 2010 Bloomberg FOIA “public interest” holding as to the use of FOIA Exemptions to withhold confidential records from the public
The appellant has placed U.S. Attorney Lynch on Notice of the Second Circuit’s Bloomberg v Board of Governors of the Federal Reserve System, 601 F.3d.143 (2d. Cir. 2010), decision that held the FOIA public interest disclosure standard trumps the Federal Reserve’s FOIA Officer’s decision that the mission of the Federal Reserve required it to protect the confidentiality of banks records. This decision can be cited when the USG uses FOIA Exemption 5 to withhold documents that reveal the names of DOJ attorneys who approved the EDNY’s U.S. Attorney’s implementation of the ad hoc DOJ litigation decisions not to acquiesce to the “incorrectly” decided 1982 Jackson, 1986, Barrett, 1989 Ruppert, 1999 Ford, and 2000 Christensen holdings as revealed in the DOJ’s Ford v Shalala case file notes and e-mails. § C.
In its March 19, 2010 Bloomberg decision, the Court explained why the banking records were public documents subject to a FOIA “public interest trumps confidentiality” standard:
But a test that permits an agency to deny disclosure because the agency thinks it best to do so (or convince a court to think so, by logic or deference) would undermine the “basic policy that disclosure not secrecy, is the dominant objective of (FOIA).” See Rose, 425 U.S. at 361.
The requirement of disclosure under FOIA and its proper limits are matters of congressional policy. The statute as written by Congress sets forth no basis for the exemption the Board asks us to read into it. If the Board believes such an exemption would better serve the national security interest, it should ask Congress to amend the statute. Id. 151. Emphasis Added.
If AG Holder rejects Robert VIII v DOJ, HHS, and SSA offer of a quiet settlement, then Robert will be arguing that the Second Circuit should apply its Bloomberg “public interest trumps confidentiality” standard to the release of the 2002 28 U.S.C. § 530D nonacquiescence” policy documents that Congress intended that AGs Ashcroft, Gonzales, (Acting) Keisler, Judge Mukasey, and Holder were to report to Congress. Appellant Robert will argue that if AG Holder claims that the 1982 Jackson, 1986 Barrett, 1990 Ruppert, Christensen, and 2007 Ford 2007 nonacquiescence policy decisions were 28 U.S.C. § 530D “exceptions” subject President Bush’s November 2, 2002 Presidential Signing Statement, then the Court should reverse Judge Garaufis’ decisions and read in camera the classified “nonacquiescence” policy documents to determine whether Congress intended that 28 U.S.C. § 530D applied to these documents. He can determine if these clandestine policies triggered the Bowen v City of NY remedy. § P.
The appellant has placed U.S. Attorney Lynch on Notice of her duty to apply the Bloomburg ““public interest trumps confidentiality” standard to the nonacquiescence policies being applied to the 2010 Ford v Shalala class members. The appellant will argue that if a banks confidential banking records are subject to the application of a FOIA “public interest” standard, then so too should the “public interest” standard be applied for the millions of 1994-2010 Ford class members given Judge Sifton’s Ford due process holding requiring that the Ford Notices cite to the regulations HHS Secretary Shalala used to deny benefits of class members. § C.
292 Appellant Robert has placed U.S. Attorney Lynch on Notice of her own 1999-2001 and 2010 K &A supervising attorney duty to determine if Jackson and Ruppert were subject to the “Thornburgh-Giuliani” review as explained in OPR Director Shaheen’s January 9, 1989 letter to Robert as Ruppert counsel during the Ruppert appeal. http://www.snowflake5391.net/1-9- 89Shaheen.pdf. This is an important issue because the “Shaheen” documents were sought in Robert v U.S. Department of Justice, 2001 WL 34077473 (EDNY), during U.S. Attorney Lynch’s first 1999-2001 Constitutional watch when the DOJ FRCP 11 signed pleadings were filed with Judge Mishler. U.S. Attorney Lynch can read the Robert v DOJ case file notes and e- mails re the “Shaheen” documents and then apply the “public interest” standard. §§ E, V, W.
After reading the “Shaheen” case file notes and e-mails, U.S. Attorney Lynch will know whether attorneys had made “Janus faced” representations to the Second Circuit in Ruppert:
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"). Ruppert at 1177. Emphasis Added.
Robert has placed U.S. Attorney Lynch on Notice of her K and A duty to apply the “Thornburgh-Giuliani” acquiescence standard to HHS General Counsel Astrue’s July 16, 1990 Ruppert “Acquiescence Ruling.” http://www.ssa.gov/OP_Home/rulings/ar/02/AR90-02-ar- 02.html. That “Acquiescence Ruling” established a de facto “Ruppert nonacquiescence policy” that has been applied to the Ford class members and resulted in the evisceration of the Ruppert v Bowen, 871 F.2d 1172 (2d Cir. 1989), “actual economic benefit” holding. §§ B, S, T.
After U.S. Attorney Lynch performs her 2010 K & A duty and contacts Acting AAG of the OLC Barron, she will know whether pursuant to 28 U.S.C. § 530D Jackson, Barrett, Ruppert, Christensen, and Ford nonacquiescence were unclassified or classified cases. If Acting AAG of the OLC Barron reports that there are no unclassified or classified Jackson, Barrett, Ruppert, Christensen, and Ford nonacquiescence policy documents, then she will have duty to learn who made the litigation decisions that these were nonacquiescence cases and their holdings did not apply to the Ford class members given the January 24, 2007 Senate testimony of SSA Commissioner Astrue that the nonacquiescence policy had ended. §§ C, F.
The Second Circuit’s Bloomberg holding provides U.S. Attorney Lynch with an opportunity to provide a heads up memo to AG Holder when he considers the Robert VIII v DOJ, HHS, and SSA quiet settlement offer. She can advise the impact on Ford class members of the implementation of the “silent nonacquiescence policy” as explained by AAG of the Civil Division Bolton in his May 6, 1988 letter to ACUS. Then AG Holder can decide whether the “public interest” trumps the DOJ “silent nonacquiescence policy” and whether to make public the ad hoc documents upon which these DOJ nonacquiescence policies were based. § LL.
293 XX. U.S. Attorney Lynch’s Notice of the Second Circuit June 9, 2010 Dinler v City of New York standard that the burden is on the law enforcement agency to prove the use of the law enforcement privilege and that the Court reviews in camera the documents
The appellant has placed U.S. Attorney Lynch on Notice of the Second Circuit’s Dinler v City of New York, __ F. 3d __ (2d Cir. 2010), decision that held that the government has the burden to prove the need to use the law enforcement privilege. The Court provided the standards for District Courts to apply that included the Court reading in camera and ex parte the withheld documents. If the Robert VIII v DOJ, HHS, and SSA appeal is reinstated, then the appellant will argue that Second Circuit reverse Judge Garaufis’ decision with a remand instruction that he apply the Dinler standards and read in camera the withheld common law privileged documents that were codified into the FOIA exemptions, to determine whether DOJ attorneys implemented the DOJ’s “Barrett nonacquiescence policy” and/or a “fraud upon the Court” for the purpose of deceiving Judge Garaufis and the Second Circuit in Robert VII v DOJ and Robert VIII. §§ D, G.
In its June 9, 2010 decision, the Second Circuit panel of Judges Cabranes, Wesley and Livington reversed the District Court Judge’s decision that held that NYS Police Department could not withhold confidential “Field Reports” that revealed raw data law enforcement officers’ intelligence reports in a § 1983 action in which the plaintiffs’ claimed that the NYS Police Department had violated their First Amendment rights. The Court read in camera the documents and held that the NYS was properly asserting the law enforcement privilege.
In prefacing the procedures that would be used in the Court reviewing in camera sensitive privileged documents, the Court explained that there was a risk to protecting the content of the Field Reports documents if the documents were retained by Court under seal:
In light of how often there are all-too-human lapses with material filed “under seal,” we cannot conclude with confidence that filing the Field Reports under seal would protect the information. Even if the Filed Reports were not “filed” on the District Court’s docket at all, were they disclosed to plaintiffs’ counsel they would inevitably be referenced in the parties’ affidavits, memoranda of law, Rule 56.1 statements, and the like—not to mention future District Court decisions—and we cannot conclude with confidence that filing those documents under seal would protect the confidential information contained in the Field Reports. Id. slip op. 21. Underlined emphasis added.
The Court explained then process for an Article III Judge to apply when reviewing sensitive documents subject to an Article II qualified privilege that was not absolute:
That is, because the law enforcement privilege is a qualified privilege, not an absolute privilege, there are circumstances in which information subject to the privilege must nevertheless be disclosed. We have never addressed how a court should determine whether such a circumstance exists, and it is that critical aspect of our jurisprudence that we are required to address in this petition. In particular, as set forth in greater detail below, this petition
294 requires us to clarify (1) the legal standard for evaluating whether the law enforcement privilege should give way to a party’s need for discovery, (2) the factors to be weighed in applying that standard, (3) whether there is a presumption against disclosure, and (4) if there is such a presumption, the extent of the showing that a party must make to overcome it. Id. slip op. 24. Underline emphasis added.
The Court noted that the law enforcement privilege developed from the common law and the executive privilege:
The law enforcement privilege is related to, and indeed an outgrowth of, the executive privilege long recognized at common law. The law enforcement privilege “shares with those “privileges” typically labeled ‘executive’ a justification rooted in the need to minimize disclosure of documents whose revelation might impair the necessary functioning of the executive branch.” Black v Sheraton Corp. of Am., 564 F. 2d 531, 541-42 (D.C. Cir. 1977). The interests that underlie the privilege are “rooted in common sense as well as common law” and, like other common law privileges, the law enforcement privilege is subject to “pragmatic adjustment to the needs of sound government.” Id. 542”. Id. n. 16, slip op. 24-25. Emphasis added.
The Court noted that the law enforcement privilege was codified in the FOIA:
The Federal Freedom of Information Act, or FOIA, contains an exemption for “records or information complied for law enforcement purposes” provided that disclosure of such information could have harmful consequences. See 5 U.S.C. 552(b)(7). Id. n. 18, slip op. 26.
The Court laid out the Second Circuit standard for the District Courts to apply the law enforcement privilege in a case involving the government seeking to protect its law enforcement procedures and secrets. The burden is in the government asserting the privilege to prevent the plaintiff from securing law enforcement documents needed to pursue its cause of action:
First, the party asserting the law enforcement privilege bears the burden of showing that the privilege indeed applies to the documents at issue. In re Sealed Case, 856 F. 2d at 272. To show that the privilege applies must demonstrate that the documents contain information that the law enforcement privilege is intended to protect. Specifically, the party asserting the privilege must show that the documents in question contain (1) information pertaining to “law enforcement techniques and procedures,” Dep’t of Investigation, 856 F. 2d at 484. (2) information that would undermine “the confidentiality of sources,” id., (3) information that would endanger “witness and law enforcement personnel,” id., (4) information that would undermine the “the privacy of individuals involved in an investigation,” id., or (5) information that would seriously impair the
295 “ability of a law enforcement agency to conduct future investigations,” Morrissey, 171 F.R.D. at 90. Id. slip opinion 37-38. Emphasis added.
The Court determined that once the privilege was successfully asserted, the Court must apply a balancing test by which the Court weighs the presumption of the public interest in maintaining the privilege against the individual’s personal claim:
Once the party asserting the privilege successfully shows that the privilege applies, the district court must balance the public interest in nondisclosure against the “need of a particular litigant for access to the privileged information.” In re Sealed case, 856 F. 2d at 272. There is a “strong presumption against lifting the privilege.” Dellwood Farms, 128 F. 3d at 1125. To rebut that strong presumption, the party seeking disclosure bears the burden of showing (1) that the suit is “non-frivolous and brought in good faith,” Friedman, 738 F. 2d at 1343, (2) that “the information sought is (not) available through other discovery or from other sources,” id., and (3) that the party has a “compelling need” for the privileged information,” Marriott, Int’l Resorts, L.P., 437 F. 2d at 1307,. If the presumption against disclosure is successfully rebutted (by a showing of, among other things, a “compelling need”), the district court must weigh the public interest in nondisclosure against the need of the litigant for access to the privileged information before ultimately deciding whether disclosure is required. “ Id. slip opinion 38. Emphasis added.
The Court established an in camera and ex parte reviewing standard that is to be applied when there are sensitive documents that should not be sealed documents subject to mistakes:
To assess both the applicability of the privilege and the need for the documents, the district court must ordinarily review the documents in question. As described in Part I,C, filing documents under seal might inadequately protect particularly sensitive documents. Thus, rather than require that the parties file the potentially privileged documents with the court, the district court may, in the interest of informed discretion and on the basis of the circumstances presented, require that the party possession the document appear ex parte in chambers to submit the documents for in camera review by the judge, after which the materials can be retuned to the custody of that party. See, e.g. In re Grand Jury Subpoenas Dated March 19, 2002 and August 2, 2002, 318 F. 3d 379, 386 (2d Cir. 2003) (describing the presentation of document for in camera review as a “practice both long-standing and routine in cases involving claims of privilege” and citing illustrative cases); United States v Wolfson, 5 F. 3d 58, 60-61 (2d Cir. 1995)(noting, in the criminal context, that the “prescribed procedure for resolving (a) dispute (as to whether certain confidential documents are subject to discovery) is to provide the documents to the district court for in camera review” and “(t)he district court normally returns the documents to the district court for in camera
296 review” and that (t)he district court normally returns such documents to the party that submitted them in camera”). Id. 38-39. Emphasis added.
The Court highlighted the fact that some documents should not even be left in the Judge’s chambers overnight:
Some documents may be so sensitive that they should not be left in the judge’s chambers overnight. In those circumstances, the court, may, in its discretion, direct the party who submitted the documents to retrieve them each evening and to return them to the judge if and when necessary. By following the commonsensical procedure for especially sensitive documents, the party with the strongest incentives—and presumably the best policies and tools—to main the confidentiality of the documents can retain control over them. This arrangement minimizes the likelihood of inadvertent disclosures of sensitive information.” Id. 39. Emphasis added.
The Court also noted that an appropriate general docket entry should be entered that memorialized the ex parte proceeding for the public record:
In some, though not necessarily all cases, an appropriately general docket entry memorializing the ex parte proceeding can be entered in the public records of the district court so long as it does not compromise the interests of the party holding the confidential information, or the public.” Id. n. 23. slip opinion 39. Emphasis added.
The Court held that if the court determines that the law enforcement privilege does not apply, then there is to be disclosure of the documents with a necessary protective order:
If the district court determines that the law enforcement privilege does not protect the documents at issue, the documents must be disclosed. In an effort to minimize the effects of disclosure, however, the district court may order that the documents be “revealed only in a specified way.” Fed.R. Civ. P. 26(c)(1)(G). Although the court is free to tailor the protective order to the circumstances presented, the court may wish to consider making the documents available only on an “attorneys’ eyes only” basis or requiring that the documents—an the other submissions that reference them—be filed under seal. As we discuss above, although those procedures are fallible, they are better than nothing.” Id. slip opinion 39- 40. Emphasis added.
Circuit Judge Wesley was on the Robert VII v DOJ panel that the appellant alleges was deceived by AAG of the Civil Division Keisler and his implementation of the “Barrett nonacquiescence policy” by withholding material facts that established Robert as a 50 U.S. C. § 1806(f) aggrieved person. Therefore, if there is a Robert VIII v DOJ, HHS, and SSA appeal reinstatement, Robert will argue if the Dinler standard is applied, then Judge Garaufis will learn whether DOJ attorneys withheld material facts for the purpose of deceiving Judge Wesley. § G.
297 If the Robert VIII v DOJ, HHS, and SSA appeal is reinstated, then Judge Garaufis will be applying the Dinler standard when he decides Robert’s 2010 Motion for permission to file the new putative FOIA complaint seeking the release of the documents being sought pursuant to his the application of AG Holder’s March 19, 2009 FOIA Guidelines and his April 7, 2010 Open Government Plan. Robert will be requesting that Judge Garaufis read in camera and ex parte the documents withheld by the USG agencies based on FOIA Exemptions 1, 2, 3, 5, 7, and the “Glomar Response” defense to determine whether the Exemptions were properly applied. In that process, Judge Garaufis will learn whether DOJ attorneys implemented the “Barrett nonacquiescence policy” in Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA and withheld material facts for the purpose of deceiving Judge Garaufis and the Second Circuit in order to protect national security secrets in the documents reviewed in camera. §§ A, F, G, YY
In order for Judge Garaufis to apply the Dinler standards, AG Holder would have to produce the documents subject to the FOIA Exemptions. If U.S. Attorney Lynch does not have clearance to read the FOIA withheld classified documents, then AG Holder will have to designate a DOJ attorney who will have custody of the classified documents that will be subject to Judge Garaufis in camera review. If these are Top Secret documents, then AG Holder may follow the Dinler standards and inform Judge Garaufis that the documents are so sensitive that that they cannot be subject to the Article III protections of sealing classified documents.
Meanwhile, Robert’s requests for E.O. 13,256 § 1.5 declassification and §1.7 misclassification decisions will be ripe for decisions. As a result, the Robert FOIA documents will be subject to both Article II and Article III checks and balances prior to AG Holder submitting his Robert VIII v DOJ, HHS, and SSA Second Circuit Brief that complies with FRCP 11 standards as well as the Barrett, Pavlick, and Chambers standards. §§ D, E, F, G, L, M.
Upon information and belief, AG Holder and his chain of command attorneys who have clearance to read the classified documents, will read the documents when complying with the Dinler standards. Upon information and belief, during that process AG Holder and his command and control attorneys with clearance to read the classified documents, will apprehend that Robert’s almost incredible 1985-2010 allegations are true. §§ D, J, N, AAA.
As per the July 27, 2010 letter to AAG of the OLP Schroeder, the possibility of a “Dinler” remand, provides him with a reason to read the classified documents. Given the appellant’s assertion that 2010 fifth column DOJ attorneys are implementing the extreme Unitary Executive theory of 1981-1984 CIA Assistant General Counsel Addington, he can consult with AG Holder’s chain of command attorneys: Acting DAG Grindler, Associate AG Perrelli, Acting AAG of the OLC Barron, AAG of the National Security Division Kris, and AAG of the Civil Division West. Together they can connect-the-dots of the withheld classified Robert documents and learn the name of the 2010 Commander-in-Chief of the command and control officer of USG fifth column attorney-patriots who is not President Obama. §§ N, O, Y, Z.
Therefore, AUSA Mahoney should explain in her heads up memo how the Dinler standards apply to Robert VIII v DOJ, HHS, and SSA documents including the documents the appellant sought in his September 3, 2008 Motion for a pre-clearance Order. Then U.S. Attorney Lynch can provide AG Holder a settlement memo that discusses the Dinler standards. § AAA.
298 YY. AG Holder’s March 15, 2010 Sunshine Week Open Government speech and AG Holder’s April 7, 2010 Open Government Plan to restore the public’s trust in the USG
The appellant has placed EDNY Attorney Lynch on Notice of AG Holder’s March 15, 2010 Sunshine Week Open Government speech and AG Holder’s April 7, 2010 FOIA DOJ Open Government Plan to restore the public’s trust in the USG. In her settlement memo prepared for AG Holder, she can cite to AG Holder’s Sunshine Week speech and the DOJ’s April 7, 2010 FOIA DOJ Open Government Plan as reasons that in 2010 he should be able to answer the how- could-it-have-happened Jackson question and solve the Gordon riddle. U. S. Attorney Lynch can provide AG Holder the answers in her settlement memo recommending whether AG Holder should accept the quiet settlement offer prior to September 3, 2010. §§ A, B, ZZ.
In his March 15, 2010 Sunshine Week “Open Government” speech, AG Holder highlighted the leadership of DOJ Chief FOIA Officer Perrelli and OIP Director Pustay:
We wouldn’t be here today without your leadership and without the contributions of Melanie [Pustay] and her team in our Office of Information Policy. Thank you all for your great work.
Let me also thank our colleagues from across the administration for taking the time to share your agencies’ experiences and best practices with us. I’m encouraged by your example, by your partnership and by your commitment to advancing our shared goal of opening the federal government to the people we serve. Emphasis Added. http://www.justice.gov/ag/speeches/2010/ag-speech-100315.html
AG Holder noted the importance of the President Obama’s commitment to “restore the sacred bond of trust” between the government and its citizens:
But, above all, they gathered to witness a new administration make a historic pledge -- a commitment to restore the sacred bond of trust that should exist between our nation’s government and its citizens.
The President delivered. With bold executive orders on his first full day in office, he solidified this administration’s unprecedented commitment to transparency and accountability. President Obama called on the Justice Department to guide the release of information about how our government operates. And he directed our department to take the lead on fulfilling the promise of the Freedom of Information Act -- the namesake of those "FOIA" requests that have become such a common, and important, part of your work. Id. 1. Emphasis Added.
On April 7, 2010, AG Holder released the DOJ Open Government Plan to implement his March 19, 2009 FOIA Guidelines. http://www.justice.gov/open/doj-open-government-plan.pdf AG Holder explained how the DOJ has collaborated with OMB Director Orszag to provide transparency and accountability as the DOJ mission goal of serving the public. This included new initiatives and new efforts to improve ongoing programs:
299 Under President Obama’s leadership and the Open Government Directive issued by the Director of the Office of Management and Budget on December 8, 2009, the Department’s responsibility for opening up the process of government runs deeper. While the Department’s law enforcement and legal counseling responsibilities cannot be met with full transparency, the core values that underlie the Open Government initiative—transparency, participation, and collaboration –can, used properly, enhance the Department’s ability to fulfill its missions and serve the public.
Through the Open Government Plan, the Department sets forth ongoing and anticipated efforts to increase openness and collaboration with the public. The Open Government Plan is tied to the Department’s core missions and includes both new initiatives and new efforts to improve ongoing programs. Id. i. Emphasis Added.
AG Holder announced that the DOJ Chief FOIA Officer-Associate AG Perrelli would meet quarterly with the Chief FOIA Officers of other government agencies:
Chief FOIA Meetings. Given the Department’s leadership role in the FOIA, the Associate AAG who is the highest-ranking Chief FOIA Officer in government, will convene quarterly meetings of the Chief FOIA Officers from the larges agencies to exchange ideas, promote the goals of the President’s and the Attorney General’s directives and sustain the commitment to openness and transparency. These meeting will begin concurrently with the issuance of this Plan. Id. 6. Emphasis Added.
AG Holder announced a plan to publish significant Court filings. This that could include the first time publication of the USG’s Ford v Shalala remedy plan:
This information should be available to the public, so that Americans can review documents themselves and gain a full understanding of the Department’s actions. Given the thousands of papers that DOJ files in courts across the country every day, it is not possible to make every brief available, and the Department’s litigation offices should welcome requests from the public to send copies of particular public filings that are of interest. In order to maximize access to the Department’s most significant case filings, however, the Department will begin to make significant court filings available through its Web site when they are filed. Id. 13. Emphasis Added.
AG Holder announced a plan to provide public access to case data tracking. When this plan is working, the public will be able to track DOJ “nonacquiescence” policies being implemented in different states. Then the public will know whether the AG’s EOUSA Director knows when the 94 U.S. Attorneys are not equally enforcing the Social Security Act pursuant tothe AG’s Article II “take Care” duty, and takes affirmative action to end this illegal practice:
300 To manage the voluminous dockets, the Department’s several litigating components each maintain case management systems that collect certain basic information about their cases. As those systems are currently maintained, the data contained in them is of little collective value: cases that are jointly handled across multiple components are often tracked in multiple, separate systems; each component relied on different definitions of fundamental concepts, resulting in data that is consistent within a particular component, but of little value when combined with data from other components; and the data is collected not for purposes of statistical analysis, but to track pending cases and matters.
The Department is in the development stages of a new platform that will, in certain ways, improve the data being collected. The purpose of the new system will still be to assist the Department to manage its workload, not to provide research-quality information in every conceivable area. Moreover, releases of case management data from a future system will undoubtedly require significant processing, not least to ensure that it does not compromise privacy, investigative or national security interests, and the costs of that processing will be weighed against the data’s potential value. Nonetheless, a single enterprise-wide system would have the potential to avoid some of the problems that reduce the value of current Department-wide information. Id. 13. Emphasis Added.
AG Holder concluded with the DOJ reviewing its balance between the mandate of keeping national security secrets and the public’s right to know how “justice is truly done.”
The Department of Justice is one of the oldest Cabinet departments in the U.S. government. It has a rich and honorable history, and its employees and senior officials are always aware that the Department must rise above the partisan concerns to see that justice is truly done. A large part of that tradition has included the mandate to hold information close –whether it was grand jury-protected, law enforcement-sensitive or nation security- classified. But the Department must ensure that the public has sufficient information to comprehend the actions taken by the Department to fulfill its mission. Department of Justice officials and employees must continue to look anew at its practices. Where the Department can better fulfill its mission through a new approach, we must embrace it. And where we can better inform the public while we fulfill those missions, we should do so. Id. 18. Emphasis Added.
Thus, AG Holder has clearly stated the DOJ mission of transparency and accountability. These goals can be accomplished at the same time that the DOJ maintains national security secrets if AG Holder applied the transparency and accountability standards to E.O. 13, 256 §1.7 misclassification reviews. As per the July 27, 2010 letter to AAG of the OLP Schroeder, the Robert VIII v DOJ, HHS, and SSA quiet settlement offer provides AG Holder with a “mosaic of documents” upon which he can perform his “justice is truly done” mission in 2010. §§ A, C, D.
301 ZZ. AG Holder’s March 19, 2010 Pro Bono Institute speech and his 2010 application of the 1988 Chilicky “normal sensibilities” of human beings remedy to Ford class members
The appellant has placed EDNY Attorney Lynch on Notice of AG Holder’s March 19, 2010 Pro Bono Institute speech. When U.S. Attorney Lynch provides her settlement memo to AG Holder. she can cite to AG Holder’s 2010 Ford v Shalala remedy duty to the millions of now legally defenseless 2010 Ford class members whose due process violations remain uncured in 2010 during the Constitutional watch of President Obama and AG Holder. U.S. Attorney Lynch can advise AG Holder whether he should apply the 1988 Schweiker v. Chilicky, 108 S. Ct. 2460 (1988), “normal sensibilities” of human beings “within months” remedy to cure the due process violations of 1994-2010 Ford v Shalala class members within 2010. §§ A, C, P-U.
On March 19, 2010, in his speech to the Pro Bono Institute, AG Holder emphasized his career commitment to providing the poor access to justice and the rule of law:
In 1974, in my first year of law school, Chesterfield Smith stood before a class of law students and said, "If you don’t intend to work to improve the quality of justice, then I hope that you flunk your exams."
This may sound harsh, especially to the law students who are here with us. But it shows how seriously he took the responsibilities that attorneys share. I, too, believe that the privilege of earning a law degree, and of living a life in the law, comes with a condition – an ongoing obligation to advance the cause of justice and the rule of law. Emphasis Added.
AG Holder viewed attorneys who provided counsel to the unpopular as patriots:
This is why lawyers who accept our professional responsibility to protect the rule of law, the right to counsel, and access to our courts – even when this requires defending unpopular positions or clients – deserve the praise and gratitude of all Americans. They also deserve respect. Those who reaffirm our nation’s most essential and enduring values do not deserve to have their own values questioned. Let me be clear about this: Lawyers who provide counsel for the unpopular are, and should be treated as what they are: patriots. Emphasis Added.
By application of AG Holder’s values in his March 19, 2010 Pro Bono Institute speech, AG Holder could order SSA Commissioner Astrue to end his clandestine policy of inputting the “phony” income into the SSA computer when computing 2010 Ford benefits. “Yet this "phony" amount was actually charged as income to plaintiff.” Hinton v. Sullivan, 737 F. Supp. 232, 242 (S.D.N.Y. 1990). AG Holder’s leadership is needed because the plaintiff’s nationwide certified class Ford v Shalala counsel has apparently abandoned the case and Judge Sifton has died. § S.
Hence, this 2010 opportunity for AG Holder to base his decision whether to accept the appellant’s offer of a quiet settlement on the Chilicky “normal sensibilities” of human beings standard with a remedy that “advances the cause of justice” for millions of Ford class members. This would be a “real time” example of the values he honored in his Pro Bono Institute speech.
302 AAA. The 2010 FOIA requests seeking documents that reveal facts necessary to survive AG Holder’s putative 2011 Motion to dismiss appellant’s 2011 putative First Amendment right of access to the Courts complaint based on Christopher v Harbury cause of action elements, and AG Holder’s application of the Ashcroft v. Iqbal “plausibility” standard
The appellant’s 2010 FOIA requests seek documents that reveal facts necessary to survive AG Holder’s putative 2011 Motion to dismiss the appellant’s 2011 putative First Amendment right of access to the Courts complaint based on Christopher v Harbury, 122 S.Ct. 2179 (2002), cause of action elements. The Robert FOIA connect-the-dots documents are necessary because the Ashcroft v Iqbal, 129 S. Ct. 1937 (2009), “plausibility” standard requires a specificity of facts as to names of USG employees and specific conduct upon which is based the allegation that USG employees violated his First Amendment right of access to the courts. As the 2010 FOIA requests proceed through the appeals process, AG Holder’s 2010 FOIA Officers will be reading the documents and deciding whether to release documents that they know the appellant will use to carry his 2011 heavy Harbury and Iqbal pleading burdens. § A.
On June 20, 2002 in its Harbury decision, the Supreme Court dismissed a Bivens claim of a violation of the First Amendment right of access to the Court because the plaintiff failed to adequately plead the First Amendment violation of right of access to the courts cause of action. However, the Court explained a viable Bivens claim could allege USG employees’ “conspiracies to destroy or cover up evidence of a crime” that could reviewed by a Court:
With respect to access to courts claims (including Harbury’s Bivens claim on this theory), the District Court acknowledged that five Court of Appeals “have held that conspiracies to destroy or cover up evidence of a crime that render a plaintiff’s judicial remedies inadequate or ineffective violat(e) the right of access,” App. To Pet. for Cert. 43a, but held that Harbury had not stated a valid cause of action for two reasons. First, the court held that Harbury’s claim “would have to be dismissed” (without prejudice) because, having filed no prior suit, she had “nothing more than a guess” as to how the alleged coverup might “have prejudiced her rights to bring a separate action.” Id., at 46a. Second, the District Court reasoned that defendants in any event would be entitled to qualified immunity in their individual capacities because, unlike officials in a coverup cases who destroyed, manufactured, or hid evidence, the defendants here did not act contrary to “clearly established constitutional norms that a reasonable official would understand” in being less than “forthcoming in discussing the intelligence that they received about Bamaca.” Id. 410-411. Emphasis Added.
The appellant placed U.S. Attorney Lynch on Notice that in his putative Bivens complaint, he would argue that the implementation of the “Barrett nonacquiescence policy” by DOJ attorneys who withheld material facts from Article III Judges, was equivalent to the “hiding evidence” standard discussed in Harbury. The evidence “hidden” from the appellant is located in the Robert FOIA requested documents that were withheld pursuant to the use of FOIA Exemptions 1, 2, 3, 5, 7 and the documents not located because the FOIA officers were ordered to conduct “Glomar Response” FOIA searches (“could not locate responsive documents”). § II.
303 The Harbury Court provides guidance as to what actions constitutes a First Amendment denial of access to the courts given the extant 2005-2010 Robert injunction:
In cases of this sort, the essence of the access claim is that official action is presently denying an opportunity to litigate for a class of potential plaintiffs. The opportunity has not been lost for all time, however, but only in the short term; the object of the denial-of-access suit, and the justification for recognizing that claim, is to place the plaintiff in a position to pursue a separate claim for relief once the frustrating condition has been removed. Id. 2186. Emphasis Added.
The Harbury Court was clear that a Bivens complaint with a well pleaded First Amendment right of access to the courts complaint, could survive a Motion to Dismiss:
While the circumstances thus vary, the ultimate justification for recognizing each kind of claim is the same. Whether an access claim turns on a litigating opportunity yet to be gained or an opportunity already lost, the very point of recognizing any access claim is to provide some effective vindication for a separate and distinct right to seek judicial relief for some wrong. However, unsettled the basis of the constitutional right of access to courts, our cases rest on the recognition that the right is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court. We indicated as much in our most recent case on a denial of access, Lewis v Casey, supra, whether we noted that even in forward-looking prisoner class actions to remove roadblocks to future litigation, the named plaintiff must identify a “nonfrivolous,” “arguable” underlying claim, id. at 353, and n.3, 116 S.Ct. 2174, and we have been give no reason to treat backward-looking access claims any differently in this respect. It follows that the underlying cause of action, whether anticipated or lost, is an element that must be described in the complaint, just as much as the allegations must describe the official acts frustrating the litigation. It follows, too, that when the access claim (like this one) looks backward, the complaint must identify a remedy that may be awarded as recompense but not otherwise available in some suit that may yet be brought. There is, after all, no point in spending time and money just as well off after litigant a simpler case without the denial-of-access element. Id. 2186-2187. Emphasis added.
The Harbury’s Court’s 2002 decision foreshadowed its 2009 Iqbal decision:
Like any other element of an access claim, the underlying cause of action and its lost remedy must be addressed by allegations in the complaint sufficient to give fair notice to a defendant. See generally Swirkiewicz v Sorema N.A., 504 U.S. 506, 513-515, 122 S. Ct. 922, 152 L.Ed. 2d 1 (2002). Although we have no reason here to try to describe pleading standards for the entire spectrum of access claims, this is the place to address a particular risk inherent in backward-looking claims.
304 Characteristically, the action underlying this sort of access claim will not be tried independently, a fact that enhances the natural temptation on the part of plaintiffs to claim too much, by alleging more than might be shown in a full trial focused solely on the details of the predicate action. Id. 2187. Emphasis Added.
The Harbury’s Court’s 2002 decision provides a context for the Second Circuit in Robert VIII v DOJ, HHS, and SSA to consider the appellants’ argument that but for the 2005 implementation of the “Barrett nonacquiescence policy” by AAG of the Civil Division Keisler to withhold withheld material facts from Judge Garaufis, the Court would have denied AG Gonzales’ 2005 injunction to prevent Robert from filing new FOIA actions. The appellant will assert that the FOIA requested mosaic of documents were needed to prove to Judge Garaufis that AAG of the Civil Division Keisler had in 2004 implemented the “Barrett nonacquiecence policy” and withheld material facts in Robert VII v DOJ that would prove the appellant’s almost incredible allegation that he had been illegally wiretapped by the NSA in violation of the FISA.
The Harbury Court emphasized the need for a predicate cause of action to the “Bivens” First Amendment claim of a denial of a First Amendment right of access to the courts:
Hence the need for care in requiring that the predicate claim be described well enough to apply the “nonfrivolous” test and to show that “arguable” nature of the underlying claim is more than hope. And because these backward-looking cases area brought to get relief unobtainable in other suits, the remedy sought must itself be identified to hedge against the risk that an access claim be tried all the way through, only to find that the court can award no remedy that the plaintiff could not have been awarded on a presently existing claim. Id. 2177. Emphasis Added.
By application of the Harbury analysis of a “backward-looking” First Amendment violation of access to the courts standard, the appellant will argue in a reinstated Robert VIII v DOJ, HHS, and SSA appeal that the Robert FOIA withheld classified documents are necessary for the plaintiff to pass the “nonfrivolous” test. The withheld Robert FOIA classified documents provide the “true” facts for his Bivens cause of action that are based on more than “hope” because none of the 1985-2010 AGs have ever used the “state secrets” defense in the 1985- 2010 Robert FOIAs to preemptively end those FOIA cases. Those documents prove whether Robert was illegally wiretapped by the “do not exist” NSA TSP. Those documents prove whether a DIA-CIA-FBI counterintelligence “plumber” unit provided Robert information to HHS General Counsel del Real, a covered agent, for use in the “Fraud Against the Government” investigation of Robert seeking Robert’s incarceration and disbarment to eliminate an attorney challenging the 1982 “Jackson nonacquiescence policy” of HHS General Counsel del Real. § M
Robert’s “backward looking” First Amendment violation is based on the long settled Mitchell v Forsyth “bright line” opinion that an AG does not have absolute immunity to illegal wiretap a U.S. citizen based on a “good faith” national security defense. “We conclude that the Attorney General is not absolutely immune from suit for damages arising out of his allegedly unconstitutional conduct in performing his national security functions.” Id. 520. § N. AG Holder will understand the reasonableness of the appellant’s offer of a quiet settlement, after he reads the 1980s sealed Robert v Holz and Robert VII v DOJ connect-the-dots
305 withheld classified documents along with the Robert v Holz and Robert VII v DOJ case file notes and e-mails. He will learn the names of the USG attorneys who knew the 1985 Mitchell decision put at risk all of the USG attorneys, including AG Meese, who knew of the illegal wiretapping of Robert that violated the “exclusivity provision” of the FISA. He will also learn that these USG attorneys knew that military officers had participated in the “Fraud Against the Government” of Robert and violated PCA domestic “law enforcement” limitations. §§ CC, DD.
After AG Holder reads the Robert v Holz and Robert VII v DOJ documents, he will know that Robert was an “aggrieved person” who has a viable Bivens action that his First Amendment right of access to the Courts, because there is the predicate FISA violation. He will know whether the facts contained in the FOIA withheld classified documents contain the smoking gun evidence for Robert to prove a 50 U.S.C. § 1810 Civil liability cause of action:
An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover— (a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater; (b) punitive damages; and (c) reasonable attorney’s fees and other investigation and litigation costs reasonably incurred. Emphasis added.
AG Holder will learn not only that there was zero evidence that Robert was a terrorist or an agent of a foreign power, but that AG Meese’s FISC petition contained the false certification that FBI Director Judge Webster had evidence that Robert was a terrorist or an agent of a foreign power. AG Holder will learn that the First Amendment violation of Robert’s access to the courts was based on the 1985 decision of AAG of the Civil Division Willard to withhold material facts from Judge Altimari at the key September 4, 1985 Ruppert v Heckler Chambers conference that the “Jackson nonacquiescence policy had ended on June 3, 1985, as explained in the July 25, 1985 House testimony, for the intended purpose of deceiving both Judge Altimari and Robert by application of the NYS Judiciary Law § 487 deception of Judges and parties standard. § F.
AG Holder will learn that Robert’s First Amendment right of access to the Courts was violated when AAG of the OLC Cooper made his August, 1986 “Barrett nonacquiescence policy” decision that on July 31, 1986 the Second Circuit had “incorrectly” decided Barrett v. United States. AAG of the OLC Copper determined that USG attorneys had a duty not to acquiesce to Mitchell because it made AG Meese liable for the illegal wiretapping of Robert by the “do not exist” 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.” Id. 573 Emphasis Added. §§ D, K, M, N, CC, DD. AG Holder will learn that Robert’s First Amendment right of access to the Courts was violated when AAG of the Civil Division Willard determined in 1986 that the USG Robert v
306 Holz attorneys were to withhold material facts from Judge Wexler for the intended purpose of deceiving both Judge Wexler and Robert in violation of the NYS Judiciary Law § 487 deception of Judges and parties standard. AAG of the Civil Division Willard knew that if there was not a deception-of-Judge Wexler-litigation-strategy, then Judge Wexler would learn of the existence of the illegal NSA TSP and illegal domestic DIA-CIA-FBI counterintelligence “plumber” unit providing information to HHS General Counsel del Real for use in the “Fraud Against the Government” investigation of Robert. He knew that AG Meese, FBI Director Judge Webster, and he, would not have an immunity defense because of Mitchell v Forsyth. §§ F, N.
AG Holder will learn whether AAG of the Civil Division Willard, after consultation with AAG of the OLC Cooper and the “FBI Abshire” attorneys, decided that based on the Unitary Executive theory, the Supreme Court had “incorrectly” decided Mitchell because its holding “unconstitutionally” encroached upon the President’s Article II duty to conduct warrantless wiretaps that were necessary to protect the nation from terrorists. AG Holder will learn whether they knew that Robert was a 50 U.S.C. § 1810 “aggrieved person” because HHS General Counsel del Real was a covered agent when he initated the “Fraud Against the Government” investion of Robert and used information frm the “do not exist” NSA TSP. AG Holder will learn whether AG Meese knew that Congress would consider the 1984-1986 violations of the Boland Amendment, along with the violations of the “exclusivity provision” of the FISA and the military domestic “law enforcement prohibition of the PCA, as impeachable offenses. §§ Y, Z.
AG Holder will learn from reading Robert VII v DOJ case file notes and e-mails whether AAG of the Civil Division Keisler implemented the “Barrett nonacquiecence policy” with the intent to deceive the Second Circuit and Robert in violation of NYS Judiciary Law § 487, when he instructed AUSA Mahoney to withhold the “smoking gun” facts that proved that Robert was an “aggrieved person” from her FRCP 11 signed April 3, 2006 letter-Brief as to whether Robert had 50 U.S.C. § 1810 “aggrieved person” standing. When AG Holder reads the April 3, 2006 letter Brief he will know whether U.S. Attorney Lynch has an April 1, 2009 NYS Professional Model Rules Rule 3.3 duty to cure misrepresentation of fact and law made to the Second Circuit in Robert VII v DOJ. http://www.snowflake5391.net/RobertvDOJbrief.pdf. § E, F, G, H, M.
AG Holder will learn from reading Robert VIII v DOJ, HHS, and SSA case notes and e- mail whether U.S. Attorney Mauskopf implemented the “Barrett nonacquiescence policy” in AG Gonzales’ 2005 Motion seeking the Robert VIII v DOJ, HHS, and SSA injunction in order to deceive Judge Garaufis and Robert in violation of violation of NYS Judiciary Law § 487 because AAG of the Civil Division Keisler ordered her to withhold material facts in the sealed Robert v Holz documents that revealed that Robert’s almost incredible allegation of the existence of the pre-9/11 “do not exist” NSA TSP were true. This is an important 2005 time line fact because it was prior to the December 22, 2005 letter of AAG of the Office of Legislative Affairs William E. Moschella to the Intelligence Committees retroactively fulfilling President Bush’s 50 U.S.C. § 413 (a) duty to report domestic covert intelligence activities of the post-9/11 NSA PSP. AG Holder will learn from reading the post-April 1, 2009 Robert VIII v DOJ, HHS, and SSA case notes and e-mail of Acting U.S. Attorney Campbell (2007-2010), whether he had fulfilled his NYS Rule 3.3 duty to cure misrepresentations of fact and law made to Judge Garaufis. §§ E-H. AG Holder will learn from reading Robert VIII v DOJ, HHS, and SSA case notes and e- mail of AUSA Mahoney, whether during the Second Circuit CAMP pre-argument conference
307 she had fulfilled her Rule 3.3 duty and informed the Second Circuit of her misrepresentations of fact that she had made to Second Circuit in Robert v National Archives, 1 Fed. Appx. 85 (2d Cir. 2001), Robert v U.S. Department of Justice, 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). This is an important 2010 fact for AG Holder to know given AUSA Mahoney’s knowledge of Justice Scalia’s Pavelic & Le Fore v Marvel Entertainment Group, 110 S. Ct. 456 (1991), FRCP 11 individual accountability standard. “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. at 459. Emphasis Added. §§ E-H, K, M, CC, XX.
AG Holder will learn from reading Robert VIII v DOJ, HHS, and SSA case notes and e- mail whether AG Holder, as a K & A supervising attorney, has a duty not to deceive AUSA Mahoney if the appeal is reinstated and AUSA Mahoney signs AG Holder’s Second Circuit Robert VIII v DOJ, HHS, and SSA defending Judge Garaufis Robert injunction decision given AG Holder’s knowledge of the Pavelic FRCP 11 standard. AG Holder will know that if he acquiesces to the Second Circuit’s 1986 Barrett, 2008 U.S. Aref, 2008 Doe v Mukasey, 2009 NY Times Company to Unseal Wiretaps & Search Warrant Materials, 2009 Wilson v CIA, 2009 Wilner v NSA, 2010 Alexander v Cahill, 2010 Bloomberg, and 2010 Dinler, holdings, then Judge Garaufis on remand will be reading in camera the Robert VIII v DOJ, HHS, and SSA documents sought in Robert’s September 3, 2008 Motion. After AG Holder reads those documents, he will know whether they contain evidence that AG Judge Mukasey had implemented the “Barrett nonacquiescence policy” and withheld material facts that proved true Robert’s allegations that AG Meese had violated the FISA and deceived Judge Wexler in Robert v Holz, and that AG Gonzales had implemented the “Barrett nonacquiescence policy in Robert VII v DOJ with the intent to deceive Judge Garaufis and the Second Circuit. §§ D-H, M, N, Y.
AG Holder will know that the use of a statute of limitations defense in his 2011 putative Motion to Dismiss Robert’s putative 2011 Robert v Holder, et. al. complaint alleging a violation of the FISA and Robert’s First Amendment of right of access to the Courts, would have to be based on AG Holder’s 2011 implementation of the “Barrett nonacquiescence policy” and withholding facts from the withheld classified connect-the-dots Robert documents that contain the smoking gun material facts. That decision would prove the 1985-2010 “systemic official action” as explained in Doe v CIA. AG Holder will know that if he makes a Wilson v CIA “continued classification” argument, he is admitting that he knows SSA Commissioner Astrue is “rigging” the 2011 SSA computer to generate unaudited “Jackson nonacquiescence policy” funds to pay for the DOD Cyber Command 1984-2010 NSA TSP and PSP data banks in the transition year until DOD Secretary Gates can use FY 2012 classified OMB Budget funds. § DD.
AG Holder will know that he cannot use a “states secret” defense because the whole world knows of the existence of the post-9/11 NSA PSP data banks and surveillance program because President Bush informed the public of this fact in December, 2005. If AG Holder argues that a retroactive “state secrets” argument applied to the NSA TSP that wiretapped the appellant’s telephones, then AG Holder will be admitting that AG Meese did not “acquiesce” to the Supreme Court’s June 19, 1985 Mitchell v Forsyth decision. § E-H, K, M, N, CC, DD, YY. Which leads to the lurking shadow government issue of who made the 1985-2010 litigation decisions not to use the “states secret” defense in the FOIA actions and the 2009 FOIA
308 decisions not to docket and decide the FOIA requests for the “FBI Abshire” and “OMB Jackson” documents. If the “main Justice” and OMB stovepipes exist, then AG Holder and OMB Director Orszag were not the command and control officers of the 2009 FBI and OMB FOIA Officers who made decisions prior to the appellant’s Robert VIII v DOJ, HHS, and SSA December 18, 2009 Motion for a Second Circuit pre-argument settlement conference. If the 2009 DOJ and OMB stovepipes lead to the “appropriate authorities” who are the 2009 daisy- chain of shadow government patriots, then they made fifth column decisions not to use the “states secrets” defense knowing of the violations of 1) the “exclusivity provision” of the FISA, 2) limitations of domestic military “law enforcement” of the PCA, 3) the National Security Act 413 (a) reporting duty, 4) the Social Security Act, and 5) their own 28 U.S.C. § 535 (b) duty to report to AG Holder their knowledge that SSA Commissioner Astrue lied to the January 24, 2007 Senate Finance Committee that the nonacquiesence policy had ended. §§ D-H, J, Y, Z.
Which leads to the August, 2010 decisions of U.S. Attorney Lynch and AG Holder’s “chain of command” attorneys whether to recommend that AG Holder accept the appellant’s quiet settlement offer. They will all have been served with this White Paper and know the details of the appellant’s putative 2011 Bivens complaint alleging that Robert is a FISA “aggrieved person” pursuant to a 50 U.S.C. § 1810, and his First Amendment Right of Access to the Courts were violated by AG Holder and his 2010 chain of command attorneys. In December, 2010 they will have implemented the “Barrett nonacquiescence policy” and withheld material facts from the Second Circuit in Robert VIII v DOJ, HHS, and SSA to prevent the release of the FOIA withheld documents Robert needed to survive AG Holder’s putative 2011 “Iqbal” Motion that Robert’s allegations were not “plausible” allegations and should be dismissed. §§ F, M, N, V, W.
On May 18, 2009 in Iqbal, the Supreme Court held that allegations pleaded as conclusions without facts, fail a “plausibility” standard that is based on the “assumption of truth” principle:
In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. 1950. Emphasis Added.
The appellant is seeking the documents to fulfill his burden to “well-plead” his almost incredible allegation of the violation of his First Amendment right of access to the Courts by the 1980s violation of the FISA and the subsequent “cover up” by DOJ attorneys implementing the “Barrett nonacquiescence policy” to protect DIA-CIA-FBI sources and methods which included the illegal use of the “do not exist” 1984-2010 NSA TSP and PSP data banks. By application of the Iqbal “assumption of truth” principle, he needs almost “smoking gun” evidence. That evidence is contained in the FOIA withheld classified documents subject not only to Article II § 1.7 misclassification review, but now also to Article III Dinler in camera review. § M, XX. The Iqbal decision dicta explains that a “plausible” well-pleaded detailed complaint that alleges violation of a First Amendment right could be a viable Bivens claim. This dicta was
309 after the Court’s 2001 explanation in Christopher v. Harbury of the elements of a putative Bivens claim of a breach of a First Amendment right of access to the courts:
Indeed, we have declined to extend Bivens to a claim sounding in the First Amendment. Bush v Lucas, 462 U.S. 367 (1983). Petitioners do not address this argument, however, so we assume, without deciding, that respondent’s First Amendment claim is actionable under Bivens. Id. 1948. Emphasis Added.
The Iqbal decision explains that detailed facts must be alleged in a Bivens complaint against specifically named co-defendant government officials. The majority also reaffirmed the Court’s precedents that a named supervisory official could not be held liable for his/her subordinate agents under a Bivens “respondeat superior” theory:
Based on the rules our precedents establish, respondent correctly concedes that Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Id. 1948.
The Iqbal majority expanded the “respondent superior” test to include rejecting a Bivens complaint that included a “constructive supervisory liability” cause of action. As a result, FOIA actions are necessary to secure documents that reveal the names of the “chain of command” attorneys who breached their K & A supervising attorneys duties:
Respondents’ conception of “supervisory liability” is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeeds of their agents. In a § 1983 suit or a Bivens action-where masters do not answer for the torts of their servants-the term “supervisory liability is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly established right to overcome qualified immunity purpose, rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same hold true for an official charged with violations from his or her superintendent responsibilities. Id. 1949. Emphasis Added.
The Iqbal “respondent superior” holding highlights the importance of the FOIA requests to learn the names of the command and control officers who ordered AUSA Mahoney to implement the “Barrett nonacquiescence policy” in the Robert FOIAs and to withhold material facts from Judge Wexler and the Second Circuit in Robert v National Archives, from Judge Mishler and the Second Circuit in Robert v DOJ, and from Judge Garaufis and the Second Circuit in Robert VII v DOJ. The “respondent superior” holding also dictates the need for Robert to learn the names of the 2010 chain of command officers who ordered the FBI and OMB FOIA Officers not to release the “FBI Abshire and “OMB Jackson” documents. §§ D, M, V-Z. This Iqbal holding also highlights the effect of the use of FOIA Exemption 5 and the attorney-client privilege as to who was the “client” and who was the “attorney” who made
310 Robert FOIAs litigation decisions. This is an especially timely issue if the “client” was the daisy- chain of shadow government attorney-patriots who, pursuant to their Unitary Executive theory, lied-by-omission to Secretaries and Presidents in order to provide the Secretaries and Presidents with plausible deniability defenses to the violations of federal laws. This attorney- client FOIA Exemption 5 issue is dramatically revealed in the Robert VII v DOJ October 1, 2004 Declaration of OIPR Attorney Baker. Who was OIPR Baker’s client if on March 1, 2004 AG Ashcroft did not know that the 2002-2004 NSA PSP was being implemented? §§ M, LL.
This Iqbal holding also highlights the effect of the use of FOIA Exemption 7 (c) to protect the privacy of law enforcement officers when a FOIA requester seeks the names of the law enforcement officers who allegedly violated his First Amendment right of access to the courts. This Iqbal and First Amendment right of access to the courts issue is presented in the de novo review of the FOIA decisions to withhold classified Robert v Holz and Robert VII v DOJ documents that reveal the names of law enforcement officers who violated the FISA after the June 19, 1985 Mitchell v Forsyth holding eliminated the AG’s absolute immunity defense. Robert needs to know the names of every USG employee who knew that the DIA-CIA-FBI counterintelligence “plumber” unit had provided NSA warrantless and FISC warranted wiretap information to HHS General Counsel Juan del Real, a covered agent, for use in the “Fraud Against the Government” investigation of Robert seeking his incarceration and disbarment to end his challenges to the “Jackson nonacquiecence policy” of 1982. §§ M, N, CC, DD, RR, XX.
The Iqbal majority also discussed the application of the FRCP 8 “short and plain statement of the claim showing that the pleader is entitled to relief” pleading requirement in explaining that the “plausibility” standard was not a “probability” pleading requirement:
The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer probability that a defendant has acted unlawfully. Ibid. When a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief’” Id., at 557, 127 S. Ct. 1955 (brackets omitted). Id. 1949. Emphasis Added.
The Iqbal majority explained that it is a rule that is necessary for executive and judicial economy to free officials in a Bivens action from the burdens of disruptive discovery:
Litigation, though necessary to ensure that officials comply with the law, exacts heavy costs in terms of efficiency and expenditure of valuable time and resources that might otherwise be directed to the proper execution of the work of Government. Id. 1953. Emphasis Added.
The Iqbal executive and judicial economy holding makes FOIA actions more important. A putative Bivens plaintiff now knows the high pleading bar to survive an Iqbal Motion to dismiss. FOIA requests provide the putative Bivens plaintiff with a resource to learn the “plausible” facts to include in a putative Bivens complaint that names USG defendants. If the FOIA requests are processed pursuant to AG Holder’s March 19, 2009 FOIA Guidelines with its presumption of disclosure and transparency of decision making standards,
311 then this shortens the Bivens complaints. The putative plaintiff will not have to perform the burdensome deductive mosaic of documents pleading task that if document # 1 reveals X, and document # 2 reveals Y, then document # 3, if released, reveals the name of the USG official who violated plaintiff’s First Amendment Right of Access to the Courts. This should end the beating around the bush as to who, knew, what, when, why, and how. Robert’s extraordinarily lengthy FOIA complaints were the result of the need to explain to the Article III Judges the significance of the # 1-# 25 mosaic of connect-the-dots FOIA requested document that he needed to overcome the USG’s FOIA classified defenses because the FOIA withheld documents would make “plausible” the ”implausible” FISA and Bivens torts. §§ F, G, H, M, V, W.
Indeed, because of the high “Iqbal” plausibility standard, a FOIA request that involves classified information may eliminate the need for a FOIA complaint by application of President Obama’s December 29, 2009 E.O. 13,256 internal review process that leads to ISCAP review. President Obama’s 2010 ISCAP Members are from senior level representatives appointed by the Departments of State, Defense, and Justice, the National Archives, the Office of the Director of National Intelligence, and the National Security Advisor:
The protection of the national security requires that some of the work of the U.S. Government be done outside the purview of its citizenry. In order to ensure an informed public while simultaneously protecting certain information, checks and balances are needed over the classification system. http://www.archives.gov/isoo/oversight-groups/iscap/
If the appellant’s requests for § 1.5 declassification or § 1.7 misclassification decisions are processed, then the USG government employees at risk of becoming defendants in Robert’s putative Bivens action, can file their own appeals to the NARA ISCAP. Because of Dinler, the 2011 ISCAP members will know that Robert’s FOIA requested documents will be subject to Article III review. They will also know of Robert’s offer of a quiet settlement, his request for NARA Office of Government Information Services (OGIS) mediation, and his Robert VIII v DOJ, HHS, and SSA argument that AG Holder’s 2010 chain of command attorneys are implementing a “Barrett nonacquiescence policy” because they have been ordered to withheld material facts from the Second Circuit which results in a “fraud” upon the Second Circuit. § G.
The appellant’s quiet settlement offer is based on his belief that the AG Holder’s 2010 “chain of command” attorneys will know that the ISCAP Members will not lie-by-omission to President Obama because they know that President Obama would not knowingly commit an impeachable offense. Therefore, because of President Obama’s December 29, 2009 E.O. 13,256 Article II appeal process, they should no longer fear being intimidated by the 2010 DIA-CIA- FBI counterintelligence “plumber” unit enforcing their nondisclosure agreements by threatening the use of the Espionage Act if they reveal to ISCAP their knowledge of the violation of the federal laws. President Obama established the ISCAP review process to provide a forum to challenge fifth column true-believers who believe the President must have unlimimited Unitary Executive authority to protect the nation from terrorists. FBI General Counsel Caproni and the 2010 FBI “plumbers” know their risk if the ISCAP reads the classified documents. § N. Meanwhile, AAG of the OLC Barron will be making his 2010 FOIA decision re the FOIA requested 1982 Jackson, 1985 Mitchell, 1986 Barrett, 1990 Ruppert, 2000 Ford, and
312 2001 Christensen nonacquiescence policy documents subject to the AG’s 28 U.S.C. §530D reporting duty. If he determines that these nonacquiescence documents exist, then he will know who made the classified “exception” decisions pursuant to President Bush’s November 2, 2002 Presidential Signing Statement explaining why § 530D did not apply. §§ D, H.
If AAG of the OLC Barron determines that there are no 1982 Jackson, 1985 Mitchell, 1986 Barrett, 1990 Ruppert, 2000 Ford, and 2001 Christensen nonacquiescence policy documents, unclassified or classified, because these were never DOJ policies, then he will inform AG Holder. Then AG Holder will inform his 2010 chain of command attorneys that they have an K & A duty to learn the who, knew, what, when, why, and how as to the implementation of these nonacquiescence policies given the SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee testimony that the nonacquiescence policy had ended prior to his becoming the HHS General Counsel in 1989. Upon information and belief, AG Holder will ask his chain of command attorneys to answer the how-could-this-have-ever-happened Jackson question presented to the Second Circuit and solve the Gordon riddle in a heads up memo as to whether he should accept the quiet settlement offer. §§ R, S, T, U.
If AG Holder decides to acquiesce to the Second Circuit’s Dinler in camera review standard, then an excellent example of how the Iqbal “plausibility” test is applied in a FOIA action seeking documents to file a Bivens action, is the application of the Dinler in camera review standard to classified OLC opinions. An Article III Judge will read the document that was based on the Unitary Executive theory whereby an AAG of the OLC had secretly determined that the Article III decision was “incorrectly” decided and was not to be followed in other cases.
The Article III Judge may determine that classified OLC opinion is incorrect on the law or that it was misinterpreted by other USG attorneys or officials. Because of the OLC opinion is classified, the Judiciary and the public will not learn of the “collateral damage” caused by an incorrect classified OLC opinion for years or for decades as in the Jackson case. §§ C, D, P.
For example, the public is learning in 2010 that AAG of the OLC Bybee learned that there were unauthorized enhanced interrogations that resulted from the 2002 OLC enhanced interrogation memo. Former-AAG of the OLC Bybee informed a closed House Judiciary Committee that his OLC opinion was based on a “muscular” interpretation of Article II:
“We took a muscular view of presidential authority,” Judge Bybee said, “We were offering a bottom line to a client who wanted to know what he could do and what he couldn’t do. I wasn’t running a debating society, and I wasn’t running a law school. Emphasis Added. Savage and Shane, Bush Aide Says Some C.I.A. Methods Unauthorized, NY Times, 7-16-10.
AAG of the OLC Bybee informed the House Committee that some of the enhanced interrogation methods were not authorized as they were improper interpretations of the “muscular view of presidential authority” in the classified OLC memo. “Those techniques were not authorized,” he said, according to a transcript released Thursday by the committee.” Id. In Robert VIII v DOJ, HHS, and SSA, the appellant sought the release of the classified 1982 “Jackson nonacquiescence policy” opinion of AAG of the OLC Ted Olson, the 1986
313 “Barrett nonacquiescence policy” of AAG of the OLC Charles Cooper, and the 1990 “Ruppert nonacquiescence policy” opinion of AAG of the OLC William Barr (1989-1990). In the appeal, he will present the Gordon riddle and argue that if these are classified OLC opinions pursuant to President Bush’s November 2, 2002 Presidential Signing Statement, then they prove false the June 22, 1989 Senate testimony of HHS General Counsel Nominee Astrue and the January 24, 2007 testimony of SSA Commissioner Nominee Astrue that the nonacquiescence ” policy had ended prior to his becoming HHS General Counsel in 1989. He will also argue that AG Holder knew the answer to both the Gordon riddle and the Jackson question when he rejected the appellant’s quiet settlement offer because he knew acceptance of the appellant’s quiet settlement offer would result in the application of the Bowen v City of New York remedy for the April 9, 1994-2010 nationwide Ford class during his Constitutional watch. §§ B-H, M, P-Z, CC, DD.
Hence, the importance of U.S. Attorney Lynch providing an accurate and comprehensive settlement memo for AG Holder so that he understands that the Iqbal “plausibility” pleading requirements intersect with AG Holder’s knowledge of the content of the withheld Robert classified documents that are subject to 2010 automatic and mandatory disclosure review. AG Holder should know that if released, these documents will prove the almost “implausible” truth of the “Mitchell nonacquiescence policy” and the off-OMB Budget funding of the “do not exist” 1984-2001 NSA TSP data banks, the 2002-2005 “immaculate construction” NSA PSP data banks, and the 2006-2010 NSA PSP data banks now under the command and control of DOD Cyber Command military officers, without the knowledge of President Obama. § M, N, CC.
U.S. Attorney Lynch has a K & A duty to know these facts because Robert has alleged that FBI General Counsel Caproni knows how the 2010 FBI “plumber” unit is enforcing 2010 USG attorneys’ nondisclosure agreement to prevent putative USG attorney “whistleblowers” from fulfilling their 28 U.S.C §535(b) duty to report to AG Holder their knowledge that SSA Commissioner Astrue lied to the Senate Finance Committee on June 24, 1989 and January 24, 2007 that the nonacquiescence policy had ended. The appellant has informed U.S. Attorney Lynch that FBI General Counsel Caproni, the 1985-1998 EDNY AUSA, knows that 1) the 1985 FBI counterintelligence “plumber” unit knew the July 25, 1985 House Subcommittee testimony was false that the nonacquiescence policy had ended on June 3, 1985 and Jackson was not a “nonacquiescence” case, 2) the “FBI Abshire” documents reveal impeachable offenses, and 3) she knows that she has breached her 28 U.S.C. 535(b) duty to report to AG Holder her knowledge that SSA Commissioner Astrue’s January 24, 2007 was false. §§ E-H, L, M, Y, Z.
The appellant has informed U.S. Attorney Lynch that FBI General Counsel Caproni also knows that the FBI classified archives file re “Charles Robert” reveal that the 1985 FBI counterintelligence “plumber” unit provided Robert information from the 1980s wiretaps by the “do not exist” NSA TSP, to HHS General Counsel del Real, a covered agent, which he used in the “Fraud Against the Government” investigation of Robert. She knew the file existed when she read the classified Robert VII v DOJ “FISC Robert” transcripts. She knnows that these pre-9/11 documents were not purged when FBI Director Mueller ordered the purging of the archived FBI records that were secured pursuant to DOD Secretary Rumsfeld’s TALON program that FBI General Counsel Caproni knew had violated the PCA and National Security Act. §§ M, CC, GG, The appellant also informed U.S. Attorney Lynch that FBI General Counsel Caproni knows the name of the “client” who requested that the FBI counterintelligence “plumber” unit
314 use NSLs to secure information re Robert’s Azzarelli escrow account into which was posted the five million dollars that never existed, which government attorneys provided to the Grievance Committee seeking to secure Robert’s disbarment. She knows the name of the “client” who requested the information from Robert’s ISP during the Robert FOIA litigation to link with the information the Special Agents secured from interrogating ex parte Robert’s clients seeking the information of the legal advice Robert provided and the legal fees charged. §§ M, X, GG.
The appellant has informed U.S. Attorney Lynch that the 1999-2001 command and control officer of the FBI counter intelligence “plumber” unit, knew the 1999-2001 whereabouts of the FOIA requested documents that were sought in Robert v National Archives, 1 Fed. Appx. 85 (2d Cir. 2001), Robert v U.S. Department of Justice, 2001 WL 34077473 (EDNY), 26 Fed. Appx. 87 (2d Cir. 2002). He knew that 1999-2001 EDNY U.S. Attorney Lynch had unwittingly implemented the “Barrett nonacquiescence policy” because AAG of the Civil Division Ogden had withheld material facts from U.S. Attorney Lynch to provide her with a plausible deniability ” defense to her knowing that the documents existed and corroborated Robert’s allegations made to Judges Wexler, Mishler, and the Second Circuit. §§ D, V, W, GG.
The appellant has placed U.S. Attorney Lynch on Notice that she has an August, 2010 K & A duty to review the Robert FOIA withheld classified documents to determine whether Robert’s allegations made in this White Paper are true. U.S. Attorney Lynch has been placed on Notice that she will be a putative defendant in Robert’s 2011 Bivens action if in Robert VIII v DOJ, HHS, and SSA she breaches her K & A supervisory duty, her NYS Judiciary Law § 487 duty prohibiting the deception of the Second Circuit and Robert, and her NYS Professional Model Rules Rule 3.3 duty to cure misrepresentations of facts and made to the Second Circuit in Robert v National Archives, Robert v DOJ, and Robert VII v DOJ. §§ E, F, G, H, M, V, W.
The appellant informed AAG of the OLP Schroeder in his July 27, 2010 letter, that the Iqbal pleading requirements intersect with identification of the “appropriate authorities” who will make decisions as to whether Robert FOIA requested “Glomar Response” documents will be processed by application of the § 1.5 declassification and §1.7 misclassification standards. If the “appropriate authorities” decide that the Robert FOIA withheld classified documents are not subject to the § 1.5 declassification and §1.7 misclassification process, then Robert needs to know the names of the “appropriate authorities” who will be putative defendants in Robert’s putative “Bivens” complaint to which AG Holder will file a putative Iqbal Motion to dismiss.
Therefore, U.S. Attorney Lynch should be informing AG Holder in her settlement memo that if Robert VIII v DOJ, HHS, and SSA is reinstated, then AG Holder will be defending the release of FOIA requested documents that Robert is seeking to secure facts that he needs to survive AG Holder’s putative Iqbal Motion to dismiss Robert’s putative 2011 “Bivens” action, Robert v AG Holder, et. al. She should advise AG Holder that if the appeal is reinstated, then the appellant will allege AG Holder violated his First Amendment right of access to the Courts by application of the Christopher v Harbury elements because there has been “systemic official action” by AG Holder because AG Holder implemented a 2010 “Barrett nonacquiescence policy” to withhold documents for the purpose of deceiving the Second Circuit. §§ QQ, TT, XX.
315 Summary
The purpose of this lengthy White Paper served upon AUSA Mahoney by certified mail and e-mail, is to be a “paper and server trail” to prove that AUSA Mahoney had been provided facts for which she has a duty to provide EDNY U.S. Attorney Lynch. In this way, U.S. Attorney Lynch can answer the Jackson question and solve the Gordon riddle in her settlement memo for AG Holder, her client, when he considers the Robert VIII v DOJ, HHS, and SSA offer of a quiet settlement. The quiet settlement offer is based on AG Holder ordering SSA Commissioner Astrue to make true his January 24, 2007 Senate Finance Committee testimony that the nonacquiescence ” policy had ended prior to his becoming the HHS General Counsel in 1989. AG Holder’s order would be based on the 1986 Bowen v City of New York equitable tolling remedy when the HHS Secretary implements a clandestine policy. §§ H, P-U, Z, YY.
If the offer of a quiet settlement is rejected, then the appellant’s Brief will cite the Second Circuit and Congressional Oversight Committees to the mosaic of documents that prove true the appellant’s almost incredible allegation of the existence of a 2010 daisy-chain of shadow government attorney-patriots whose “Commander in Chief” is not President Obama. The Second Circuit will have an opportunity to determine who made the “Barrett nonacquiescence policy” decisions by granting the appellant’s request that pursuant to Dinler, the appeal be remanded to Judge Garaufis in order that he can read in camera the FOIA withheld documents which will prove whether Robert’s allegations are true. Congressional Oversight Members, whose 2010 constituents are Ford v Shalala class members, will be able to ask Social Security Administrator Michael Astrue to answer the Jackson question and solve the Gordon riddle to learn why 20 C.F.R. 416.1130 (b) has not been equally applied to their Ford constituents. § ZZ.
The Members of the Senate Finance Committee will also have an opportunity to use their Article I separation of powers authority to learn why FBI Director Mueller has not initiated an investigation of the grave allegation that SSA Commissioner Nominee Astrue lied to the Senate Finance Committee on January 24, 2007 that the nonacquiescence policy had ended notwithstanding a plain reading of 20 C.F.R. § 416.1130 (b) that is smoking gun evidence that SSA Commissioner Astrue’s testimony is 2010 uncured false testimony. Then the Senate Finance Committee Members can determine whether SSA Commissioner Astrue is a covered agent who has been tasked to divert off-OMB Budget unaudited Jackson nonacquiescence policy” funds to pay for the maintenance of the “do not exist” 1984-2010 NSA TSP and PSP data banks not paid for with classified OMB Budget funds. §§ A, B, K, M, N, Y, Z, CC, DD.
AUSA Mahoney knows to whom she has presented the appellant’s Robert VIII v DOJ, HHS, and SSA offer of a quiet settlement. She knows SSA Commissioner Nominee Astrue lied to the January 24, 2007 Senate Finance Committee that the nonacquiescence policy had ended. She knows the 2010 SSA computer continues to be “rigged” to apply the Jackson regulation, 20 C.F.R. 416.1130 (b), to deny 2010 Ford class members benefits. She knows she deceived appellant Robert. Therefore, AUSA Mahoney should provide a heads up memo to U.S. Attorney Lynch that she can reply upon when she prepares her settlement memo for AG Holder recommending whether to accept the appellant’s quiet settlement offer. §§ E-H, AAA.
Dated: July 27, 2010 Charles Robert, pro se
316