Charles Robert 441 B. West Broadway Long Beach, New York 11561 516-889-2251 [email protected] Notice PCLOB-2015-01 June 16, 2015 Comment that the PCLOB should recommend that AG Lynch declassify the E.O. 12333 May 24, 1984 Top Secret “OLC Olson FISA Memo” to trigger a public debate on the limits of the President’s Commander in Chief inherent authority to conduct warrantless domestic surveillance of U.S. citizens to protect the nation from enemies The commenter files this comment pursuant to the PCLOB’s March 23, 2015 Federal Register Notice Request for Public Comments on Activities Under Executive Order 12333. 80 FR No. 55, 15259. https://www.pclob.gov/library/FederalRegister-PCLOB-2015-03-24.pdf. The PCLOB invited public comments to inform the PCLOB on the impact of E.O. 12333 counterterrorism activities on U.S. citizens’ privacy rights and civil liberties: PCLOB seeks public input to inform the Board’s examination of activities conducted under Executive Order (E.O.) 12333—United States Intelligence Activities. Although the Board recognizes that much information about activities under E.O. 12333 is classified and/or not publicly available, the Board seeks comments regarding any concerns about counterterrorism activities conducted under E.O. 12333 based on the information that is currently unclassified and publicly available, as well as suggestions for questions the PCLOB should ask as part of its inquiry. Id. Emphasis added. With the May 31, 2015 sunset of Section 215 of the Patriot Act and the June 2, 2015 enactment of the USA Freedom Act, now is the time for the Congress and the public to read AAG of the OLC Theodore Olson’s May 24, 1984 Top Secret FISA Memo sent to AG William French Smith. “Re Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1979.” Therefore, the PCLOB should recommend that AG Loretta Lynch declassify this Top Secret OLC FISA Memo in order to trigger a public debate on the 2015 “FISA secret law” and the limits of the President’s Article II Commander in Chief “inherent authority.” See § 1 below. The commenter suggests that the PCLOB ask AG Lynch directly whether the May 24, 1984 Top Secret “OLC Olson FISA Memo” continues to be the law that is followed in 2015 after the enactment of the USA Freedom Act. If so, then the PCLOB should ask AG Lynch whether the May 24, 1984 “OLC Olson FISA Memo” determined that the exclusivity provision of the FISA is an “unconstitutional” encroachment on the President’s unlimited Article II Commander in Chief inherent authority to conduct warrantless domestic surveillance of U.S. citizens to protect the nation from its enemies. If AG Lynch decides not to declassify this OLC FISA Memo, then the PCLOB should ask AG Lynch to provide this 1984 OLC FISA Memo to the PCLOB for its in camera review. In this way, the PCLOB can determine for itself whether this OLC FISA Memo is the legal basis for CIA Director Brennan to continue in 2015 to conduct back door warrantless domestic searches of 1982-2015 E.O. 12333 Top Secret FISA exempt NSA TSP servers of “haystacks” of U.S. citizens’ comingled stored content data. See § 2 below. 1 If AG Lynch decides not to declassify the May 24, 1984 Top Secret “OLC Olson FISA Memo,” then the commenter suggests that the PCLOB ask AG Lynch to declassify the September 5, 2014 re-reclassified March 18, 2011 reclassified May 6, 2004 Top Secret “OLC Goldsmith FISA Memo.” In this way, the PCLOB can determine whether the May 6, 2004 Top Secret “OLC Goldsmith FISA Memo” cites to the May 24, 1984 Top Secret “OLC Olson FISA Memo.” If so, then this would reveal whether AG Holder had adopted the 1984-2008 DOJ policy that the exclusivity provision of the FISA is an “unconstitutional” encroachment on the President’s unlimited Article II Commander in Chief inherent authority to conduct warrantless domestic surveillance of U.S. citizens to protect the nation from enemies. If so, then this raises the issue of whether USG government officials and attorneys continue to “defraud” President Obama re the fact that the 1982-2015 CIA Directors have conducted back door warrantless domestic searches of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data that is now being stored in the Utah Data Center servers without the knowledge of the Congress and the FISC. See § 3 below. If AG Lynch decides not to declassify the May 24, 1984 Top Secret “OLC Olson FISA Memo,” then the commenter suggests that the PCLOB ask AG Lynch to declassify the July, 2014 Top Secret “OLC Riley v California Memo.” In this way, the PCLOB will learn whether Acting AAG of the OLC Karl Thompson decided that the Supreme Court’s unanimous June 25, 2014 Riley v California holding that the Fourth Amendment applies to a U.S. citizen’s cell phone’s stored content data, does not apply to the 1982-2014 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. The “OLC Riley v California Memo” reveals why OIP Director Pustay used the “Glomar Response” defense to deny the commenter’s 2014 FOIA request. With the June 2, 2015 enactment of the USA Freedom Act, the PCLOB should know why the “Glomar Response” was used. See § 4 below. The commenter suggests that if the PCLOB Members read the May 24, 1984 Top Secret “OLC Olson FISA Memo,” then they can make a recommendation that solves the 2015 Orwellian-Hooveresque conundrum of the post-USA Freedom Act that there continues to be storage of the content of the 1982-2015 E.O. 12333 Top Secret “FISA exempt” NSA TSP “haystacks” of U.S. citizens’ comingled stored content data. The PCLOB could recommend that President Obama issue a new E.O. that includes a “Riley v California FISC warrant” requirement that is the defined basis for Intelligence Community (IC) analysts’ searches of any U.S. persons’ comingled stored content data that is retained in any USG server. This remedy is consistent with DNI Clapper’s January 15, 2015 National Research Council of the National Academies Bulk Collection of Signals Intelligence: Technical Options Report that acknowledges the fact the NSA TSP servers contain both foreign and U.S. persons stored content data that technically cannot be separated. That Report recommended increased civil liberties protections. See § 5 below The commenter suggests that an amendment to the FISA requiring a “Riley v California FISC warrant,” would strengthen the President’s Article II authority by application of the Youngstown Sheet and Tube Co. v Sawyer, 343 U.S. 579 (1952), standard of the President’s “highest ebb” category. Both Congress and the President would be defining the President’s Article II authority. This would eliminate the need for the President to consider interpreting Riley v California and the USA Freedom Act as requiring DNI Clapper to destroy U.S. citizens’ comingled stored content data that is now being stored by the USG along with the foreign comingled content data. All stored content data could continue to be retained. See § 6 below. 2 The commenter suggests that because the Youngstown standards are a bipartisan check and balance on the President’s authority, the PCLOB should consider requesting that the Public Interest Declassification Board (PIDB) declassify the May 24, 1984 Top Secret “OLC Olson FISA Memo” that explains the “FISA secret law.” On December 8, 2014, the PIDB issued a Supplemental Report: Setting Priorities: An Essential Step in Transforming Declassification. This PIDB report discusses the need for the President and Congress to clarify the declassification standards that should apply to the ever increasing number of classified documents. On June 25, 2015, the PIDB will be holding a public meeting re new techniques to implement a new automatic declassification system. It is to be first tested by application to Presidential Records from President Reagan’s Administration’s classified e-mail system. All of President Reagan’s Administration’s Records, including the e-mails, are now subject to President Obama’s E.O. 13526 § 3.3 Automatic Declassification 25 year standard (1989+25=2014). See § 7 below. The commenter suggests that the PCLOB apply with 20/20 hindsight former-DOD Secretary Donald Rumsfeld’s February 12, 2002 historical fact analysis prism standard as to “known-known”, “known-unknown”, and “unknown-unknown” facts. President Ford’s 1974- 1975 WH Chief of Staff Donald Rumsfeld understood that when implementing the President’s Article II Commander in Chief inherent authority to protect the nation from enemies, that the President would know “known-known” facts that were “unknown-unknown” facts to the Article I Congress and the Article III Judges. He would become President Ford’s 1975-1977 DOD Secretary and President Bush’s 2001-2006 DOD Secretary. By applying his historical prism, the PCLOB can determine whether after the enactment of the USA Freedom Act, the Article I Congress and Article III Judges, including the FISC and the Supreme Court, should know as “known-known” facts the 1982-2015 “FISA secret law” that the 1982-2015 AGs and FBI Directors have known were “unknown-unknown” facts to Congress and the FISC. See § 8 below. The commenter respectfully suggests that the PCLOB heed the warning of former-NARA Information Security Oversight Office (ISSO) Director J. William Leonard re the “secret law” that he astutely framed in his testimony to the Senate Judiciary Committee at its April 30, 2008 Secret Law and the Threat to Democratic and Accountable Government hearing.