Case 1:06-cv-00214-RCL Document 1 Filed 02/07/06 Page 1 of 10

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN CIVIL LIBERTIES UNION 125 Broad Street New York, NY 10004,
and

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street New York, NY 10004,

and

THE NATIONAL SECURITY ARCHIVE FUND, Inc. The George Washington University Gelman Library, Suite 701 2130 H Street, N.W. Washington, D.C. 20037

Civil Action No. ___________

Plaintiffs,

v.
UNITED STATES DEPARTMENT OF JUSTICE
950 Pennsylvania Avenue, NW Washington, DC 20530-0001

Defendant.

COMPLAINT FOR INJUNCTIVE RELIEF

Preliminary Statement

1.

This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. §

552, for injunctive and other appropriate relief, seeking the immediate processing and release of

agency records requested by plaintiffs from defendant Department of Justice (“DOJ”).

Case 1:06-cv-00214-RCL Document 1 Filed 02/07/06 Page 2 of 10

2.

In December 2005, plaintiffs American Civil Liberties Union and American

Civil Liberties Union Foundation (collectively, “the ACLU”) and the National Security Archive

Fund, Inc. (the “Archive”) filed FOIA requests seeking the release of records related to the

NSA’s secret surveillance program to intercept, without prior judicial authorization, the

telephone and Internet communications of people inside the United States (“the Program”).

Jurisdiction and Venue

3.

This Court has subject matter jurisdiction over this action and personal

jurisdiction over the parties pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 552(a)(6)(C)(i). This

Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331. Venue is proper in this

district under 5 U.S.C. § 552(a)(4)(B).

Parties

4.

The ACLU is a national organization that works to protect civil rights and civil

liberties. The American Civil Liberties Union Foundation is a 501(c)(3) organization that

provides free legal representation and educates the public about civil rights and civil liberties

issues. The American Civil Liberties Union is a separate non-profit, non-partisan, 501(c)(4)

membership organization engaged in public education and analysis of pending and proposed

legislation. As a leading defender of freedom, equality, privacy, and due process rights in the

United States, the ACLU has provided direct representation to individuals and organizations with

a well-founded belief that their communications are being intercepted by the NSA under the

Program.

5. Plaintiff National Security Archive Fund, Inc. (“the Archive”) is an independent

non-governmental research institute and library located at The George Washington University in

Washington, D.C. The Archive collects and publishes declassified documents acquired through

the Freedom of Information Act (“FOIA”). The Archive is the world’s largest nongovernmental

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library of declassified documents, has published more than 500,000 pages of declassified documents in various formats, and has become the leading non-profit user of FOIA. The Archive has made extensive requests for records regarding the NSA’s surveillance activities.
6. Defendant United States Department of Justice (“DOJ”) is a Department of the Executive Branch of the United States Government. The DOJ is an agency within the meaning of 5 U.S.C. § 552(f)(1).
The NSA’s Secret Domestic Spying Program
7. According to published news reports, in the fall of 2001 the NSA launched a secret surveillance program (“the Program”) to intercept, without prior judicial authorization, the telephone and Internet communications of people inside the United States. James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, New York Times, Dec. 16, 2005, at A1, A16. President Bush ratified the Program in 2002. Since then, the President has reauthorized the Program more than 30 times.
8. Under the Program, the NSA intercepts vast quantities of the international telephone and Internet communications (hereinafter collectively “communications”) of people inside the United States, including citizens and lawful permanent residents.
9. The legality and propriety of the NSA’s warrantless spying is the subject of sustained, intense public concern. It took less than a day for Arlen Specter, the Republican chairman of the Senate Judiciary Committee, to pledge that the Senate would hold hearings to investigate the NSA’s warrantless surveillance. Jennifer Loven, Report of NSA Spying Prompts Call for Probe, San Francisco Chronicle, Dec. 16, 2005. At the time the FOIA request at issue here was filed, the Program had already stimulated multiple news stories around the country. See, e.g., James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, New York Times, Dec. 16, 2005, at A1; Maura Reynolds and Greg Miller, Congress Wants Answers
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About Spying on U.S. Citizens, Pittsburgh Post-Gazette, Dec. 16, 2005; Steven Thomma, Spying Could Create Backlash on Congress; Public Reaction Hinges on Identity of Targets, San Jose Mercury News, Dec. 16, 2005; Christine Hauser, Bush Declines to Discuss Report on Eavesdropping, New York Times, Dec. 16, 2005; Katherine Shrader, Lawmakers Say Reported Spy Program Shocking, Call For Investigations, San Diego Union Tribune, Dec. 16, 2005; Caren Bohan and Thomas Ferraro, Bush Defends Eavesdropping and Patriot Act, ABC News, Dec. 17, 2005; Dan Eggan and Charles Lane, On Hill, Anger and Calls for Hearing Greet News of Stateside Surveillance, Washington Post, Dec. 17, 2005, at A1; Jennifer Loven, Bush Defends Secret Spying in U.S., San Francisco Chronicle, Dec. 17, 2005; Barton Gellman and Dafna Linzer, Pushing the Limits of Wartime Powers, Washington Post, Dec. 18, 2005, at A1; John Diamond, NSA’s Surveillance of Citizens Echoes 1970s Controversy, USA Today, Dec. 18, 2005; James Kuhnhenn, Bush Defends Spying in U.S., San Jose Mercury News, Dec. 18, 2005; Fred Barbash and Peter Baker, Gonzales Defends Eavesdropping Program, Washington Post, Dec. 19, 2005; Todd J. Gillman, Bush Assails Disclosure of Domestic Spying Program, San Jose Mercury News, Dec. 19, 2005; David Stout, Bush Says U.S. Spy Program is Legal and Essential, New York Times, Dec. 19, 2005; James Gerstenzang, Bush Vows to Continue Domestic Surveillance, L.A. Times, Dec. 19, 2005; Terence Hunt, Bush Says NSA Surveillance Necessary, Legal, Washington Post, Dec. 19, 2005; George E. Condon, Bush Says Spying Is Needed To Guard US, San Diego Union Tribune, Dec. 20, 2005; Jeff Zeleny, No ‘Unchecked Power’ In Domestic Spy Furor, Chicago Tribune, Dec. 20, 2005; Michael Kranish, Bush Calls Leak of Spy Program Shameful, Boston Globe, Dec. 20, 2005; Craig Gordon, For Bush, 9/11 Justifies Eavesdropping, Newsday, Dec. 20, 2005.
10. Since then, concern by Congress, the media and the public has continued unabated. On January 31, 2006, President Bush devoted a portion of his State of the Union
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Address to defending the National Security Agency spying program. On January 23, 2006, General Michael Hayden, former director of the NSA, spoke at the National Press Club to give an impassioned speech advocating for the NSA spying program. On February 6, 2006, the Senate Judiciary Committee began hearings on the NSA spying program. Attorney General Alberto Gonzales himself defended the lawfulness and propriety of the NSA’s actions. See also Scott Shane, At Security Agency, News of Surveillance Program Gives Reassurances a Hollow Ring, New York Times, Dec. 22, 2005, at A22; Robert Gehrke, Secretive court in the dark on spying; Utah judge says answers from Bush are crucial; Judge Benson wants details on spying, Salt Lake Tribune, Dec. 23, 2005, at A1; Stewart M. Powell, Secret Court Modified Wiretap Requests, Seattle Post-Intelligencer, Dec. 24, 2005, at A9; Philip Dine, Is eavesdropping a symptom of illness or signal of strength?, St. Louis Post-Dispatch, Dec. 25, 2005, at B1; Editorial, Defense of wiretaps still falling short; Privacy should get benefit of the doubt, Rocky Mountain News, Jan. 4, 2006, at 32A; Jim VandeHei and Dan Eggen, Cheney Cites Justifications For Domestic Eavesdropping; Secret Monitoring May Have Averted 9/11, He Says, Washington Post, Jan. 5, 2006, at A02; Bob Egelko, SPY POWERS; Can the president eavesdrop on private citizens without a judge's ok? The high court said 'no' in 1972 Wiretaps: Ruling requires warrants for spying at home, San Francisco Chronicle, Jan. 8, 2006, at A1; Eric Lichtblau, Judges and Justice Dept. Meet Over Eavesdropping Program, New York Times, Jan. 10, 2006, at A14; Julie Hirschfeld Davis, In reversal, Bush backs hearings on wiretaps, Baltimore Sun, Jan. 12, 2006, at 6a; Editorial, End the end run; President wrong to bypass courts in ordering domestic wiretaps, Columbus Dispatch, Jan. 14, 2006, at 12A; Maura Reynolds, The Nation; Specter Remains Doubtful of Spy Program's Legality; He says Bush was not given a 'blank check' when Congress OKd the use of force after 9/11, L.A. Times, Jan. 16, 2006, at A15; Frank James, Gore accuses president of breaking the law, Chicago Tribune, Jan. 17, 2006; Bob
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Deans, Wiretap battle lines harden, Atlanta Journal-Constitution, Jan. 26, 2006, at 3A; Jake Thompson, Scrutiny on surveillance issue backed, Omaha World-Herald, Jan. 27, 2006, at 01A; Jim Puzzanghera, Experts challenge need for warrantless spying, Mercury News, Jan. 28, 2006; Carol D. Leonnig, Gonzales Is Challenged on Wiretaps, Washington Post, Jan. 31, 2006, at A07.
Plaintiffs’ FOIA requests 11. On December 20, 2005, plaintiff ACLU submitted a FOIA request to defendant DOJ seeking records relating to the Program. The ACLU sent its request to the FOIA/PA Mail Referral Unit. The next day, the ACLU forwarded its request to the Office of Information and Privacy. The ACLU requested any presidential order(s) authorizing the NSA to engage in warrantless electronic surveillance. It also requested records relating to the policies, practices and procedures of the NSA for selecting individuals to subject to warrantless domestic surveillance; for gathering, maintaining, storing, and sharing information generated through such surveillance; for using gathered information as the basis for FISA requests; and for consulting with, or obtaining approval from, defendant DOJ before engaging in warrantless electronic surveillance. The ACLU requested any DOJ “legal reviews of the program and its legal rationale,” any DOJ audit of the program, and any other records on the constitutionality, legality, and/or propriety of the NSA’s warrantless domestic spying. 12. The ACLU requested expedited processing of its request. The ACLU had grounds for expedited processing because the information sought relates to “a matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence,” 28 C.F.R. § 16.5(d)(1)(iv), and because there is “[a]n urgency to inform the public about an actual or alleged federal government activity” by organizations “primarily engaged in disseminating information,” 28 CFR § 16.5(d)(1)(ii).
6

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13. The ACLU requested a limitation of processing fees pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II) (“fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by . . . a representative of the news media . . .”). The ACLU additionally requested a waiver of all costs pursuant to 5 U.S.C. §552(a)(4)(A)(iii) (“Documents shall be furnished without any charge . . . if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.”).
14. On December 22, 2005, the Archive filed a FOIA request seeking information about the Program. It filed a FOIA request with the Office of Information and Privacy and the Office of Legal Counsel seeking copies of “[a]ll memoranda, legal opinions, directives or instructions from the Attorney General, Assistant Attorney General, or the Office of Legal Counsel (OLC), issued between September 11, 2001, and December 21, 2005, regarding the government’s legal authority for surveillance activity, wiretapping, eavesdropping, and other signals intelligence operations directed at communications to or from U.S. citizens. Please include all documents discussing the President’s surveillance authority under the September 2001 congressional use of force resolution as well as the President’s independent ability to authorize signals intelligence activities.”
15. On January 9, 2006, the Archive added an addendum to its December 22, 2005 FOIA request seeking expedited processing. Like the ACLU, the Archive explained that “there exists a compelling need to review materials because the information is sought by a person primarily engaged in disseminating information and is urgently needed to inform the public concerning actual or alleged Federal Government activity” (internal quotation marks and brackets omitted).
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16. Like the ACLU, the Archive requested a fee waiver. The Archive explained that it “qualifies for a waiver of search and review fees as a representative of the news media. This request is made as part of a scholarly and news research project and not for commercial use.” The Archive requested notification before incurring any copying costs over $100.
Defendants’ Failure to Disclose the Records Sought 17. The ACLU received a letter dated January 6, 2006, from the DOJ’s Office of Information and Privacy. The letter responded to the ACLU’s request on behalf of the Offices of the Attorney General and Deputy Attorney General. The letter stated that the Director of Public Affairs decided that the ACLU’s request for expedited processing should be granted. It stated that the request “is being processed at this time,” but provided no information regarding when processing will be completed. The DOJ has not considered plaintiffs’ request for a waiver of processing fees. The DOJ Office of Information and Privacy stated that it would do so at some unspecified point in the future. 18. On January 20, 2006, the Archive received a response to its FOIA request of December 22, 2005. The response was from the Office of Information and Privacy and was made on behalf of the Office of the Attorney General. The DOJ granted the Archive’s request for expedited processing. The letter further stated that the Archives request “has been assigned to a FOIA specialist in this Office and records searches are being initiated.” The letter provided no information regarding the time frame for processing. The letter stated that the Archive had agreed to pay fees up to $100, but did not address the Archive’s request for a waiver of fees. The Archives has received no response from the Office of Legal Counsel. 19. To date, defendants have not disclosed any records in response to plaintiffs’ FOIA requests nor stated which records, if any, they intend to disclose.
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20. Defendants are improperly withholding the records sought by plaintiffs’ FOIA requests.
21. Plaintiffs have exhausted the applicable administrative remedies. CAUSES OF ACTION First Cause of Action:
Violation of the FOIA for Failure to Make Promptly Available the Records Sought by Plaintiffs’ Request 22. Defendants’ failure to make promptly available the records sought by plaintiffs’ request violates the FOIA, 5 U.S.C. § 552(a)(3)(A), and the corresponding agency regulations.
Second Cause of Action: Violation of the FOIA for Failure Timely to
Respond to Plaintiffs’ Request 23. Defendants’ failure timely to respond to plaintiffs’ request violates the FOIA, 5 U.S.C. § 552(a)(6)(A), and the corresponding agency regulations.
Requested Relief WHEREFORE, Plaintiffs pray that this Court:
A. Order defendant immediately to process the requested records in their entirety; B. Order defendant, upon completion of such expedited processing, to disclose the
requested records in their entirety and make copies available to plaintiffs; C. Enjoin defendants from charging plaintiffs fees for the processing of their request; D. Award plaintiffs their costs and reasonable attorneys’ fees incurred in this action; and E. Grant such other relief as the Court may deem just and proper.
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February 7, 2006

Respectfully submitted,
/s/ ARTHUR B. SPITZER D.C. Bar No. 235960 American Civil Liberties Union
of the National Capital Area 1400 20th Street, NW, Suite 119 Washington, D.C. 20036 Phone: (202) 457-0800 Fax: (202) 452-1868
ANN BEESON CATHERINE CRUMP American Civil Liberties Union Foundation 125 Broad Street New York, NY 10004 Phone: (212) 549-2500 Fax: (202) 452-1868
MEREDITH FUCHS The National Security Archive Fund, Inc. The George Washington University Gelman Library, Suite 701 2130 H Street, N.W. Washington, D.C. 20037
Counsel for Plaintiffs

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 Case 1:06-cv-00214-RCL Document 10 Filed 02/09/06 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,
Plaintiff, v.
DEPARTMENT OF JUSTICE,
Defendant.

Civil Action 06-00096 (HHK)

AMERICAN CIVIL LIBERTIES UNION, et al.,
Plaintiffs, v.
DEPARTMENT OF JUSTICE,
Defendant.

Civil Action 06-00214 (HHK)

ORDER Before the court is the motion to consolidate filed by plaintiffs in American Civil Liberties Union v. Dep’t of Justice, Civil Action 06-00214. Plaintiffs move for consolidation of that case with another case before this court, Electronic Privacy Information Center v. Dep’t of Justice, Civil Action 06-00096. Under Rule 42(a) of the Federal Rules of Civil Procedure, the court may consolidate separately filed cases when the cases involve a common question of law or fact. See Fed. R. Civ. P. 42(a). The court enjoys broad discretion when deciding whether to grant a motion to

Case 1:06-cv-00214-RCL Document 10 Filed 02/09/06 Page 2 of 2 consolidate. See 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2383 (2d ed. 1995). Upon careful consideration of plaintiffs’ motion to consolidate, the court, having determined that these cases involve the same or similar legal issues, concludes that consolidation of the above-captioned cases is appropriate. Accordingly, it is this 9th day of February 2006, hereby
ORDERED that plaintiffs’ motion to consolidate [#3] is GRANTED; and it is further ORDERED that the matters of Electronic Privacy Information Center v. Dep’t of Justice, Civil Action 06-00096 and American Civil Liberties Union v. Dep’t of Justice, Civil Action 06-00214 are hereby CONSOLIDATED; and it is further ORDERED that all further pleadings and other matters related to the consolidated cases be file in Electronic Privacy Information Center v. Dep’t of Justice, Civil Action 06-00096.
Henry H. Kennedy, Jr. United States District Judge
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 Case 1:06-cv-00214-RCL Document 12 Filed 02/16/06 Page 1 of 19

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,

Plaintiff, v.

Civil Action 06-00096 (HHK)

DEPARTMENT OF JUSTICE,

Defendant.

AMERICAN CIVIL LIBERTIES UNION, et al.,
Plaintiffs, v.
DEPARTMENT OF JUSTICE,
Defendant.

Civil Action 06-00214 (HHK)

MEMORANDUM OPINION AND ORDER Plaintiff, Electronic Privacy Information Center (“EPIC”), brings this action against the Department of Justice (“DOJ”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking the expedited processing and release of agency records regarding the Bush Administration’s policy of conducting surveillance of domestic communications without the prior authorization of the Foreign Intelligence Surveillance Court. Presently before the court is

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EPIC’s motion for a preliminary injunction [#3]. Upon consideration of the motion, the opposition thereto, the record of the case, and the argument of counsel at a hearing, the court concludes that the motion must be granted.1
I. FACTUAL BACKGROUND On December 16, 2005, the New York Times first reported that President Bush “secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying.” James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005. The New York Times also reported that the purported legal justification for the warrantless surveillance program had been developed by DOJ attorneys and officials, that DOJ “audited the N.S.A. program,” and that DOJ “expanded and refined a checklist to follow in deciding whether probable cause existed to start monitoring someone’s communications.” Id. In response to this news, EPIC submitted four FOIA requests that same day to four DOJ components—the Office of the Attorney General (“OAG”), the Office of Intelligence Policy and Review (“OIPR”), the Office of Legal Counsel (“OLC”), and the Office of Legal Policy (“OLP”)—citing the New York Times article and requesting records “from September 11, 2001 to the present concerning a presidential order or directive authorizing the National Security Agency

1

After EPIC filed its motion for a preliminary injunction, the court consolidated this case

with American Civil Liberties Union, et al. v. Department of Justice, Civil Action No. 06-214.

By that case, plaintiffs seek “the release of records related to the NSA’s secret surveillance

program to intercept, without prior judicial authorization, the telephone and Internet

communications of people inside the United States.” Compl. ¶ 2.

This memorandum opinion is concerned solely with EPIC’s motion for a preliminary

injunction.

2

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(‘NSA’), or any other component of the intelligence community, to conduct domestic surveillance without the prior authorization of the Foreign Intelligence Surveillance Court (‘FISC’).” Pl.’s Mot., Exhs. 7, 8, 9 & 10. EPIC specifically sought the following items:
(1) an audit of NSA domestic surveillance activities; (2) guidance or a “checklist” to help decide whether probable cause exists to monitor
an individual’s communications; (3) communications concerning the use of information obtained through NSA
domestic surveillance as the basis for DOJ surveillance applications to the FISC; and (4) legal memoranda, opinions or statements concerning increased domestic surveillance, including one authored by John C. Yoo shortly after September 11, 2001 discussing the potential for warrantless use of enhanced electronic surveillance techniques. Id. In its letters, EPIC requested expedited processing of its FOIA requests because, according to EPIC, they (1) involve a “matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence,” id. (quoting 28 C.F.R. § 16.5(d)(1)(iv)) and (2) pertain to a matter about which there is an “urgency to inform the public about an actual or alleged Federal Government activity,” and were made by “a person primarily engaged in disseminating information.” Id. (quoting 5 U.S.C. § 552(a)(6)(E)(v)(II)). In support of its requests for expedited processing, EPIC noted that the NSA surveillance program “raises serious legal questions about the government’s intelligence activity and has received considerable media attention,” and that “hundreds of local and national media organizations reported on this matter throughout the United States this morning.” Id. at 4. Noting the pendency of congressional hearings on the NSA’s warrantless domestic surveillance, EPIC also stated that “[i]t is critical for Congress and the public to have as much information as
3

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possible about the DOJ’s role in this surveillance to fully consider and determine its propriety.” Id.
By letter dated December 21, 2005, the DOJ’s Office of Information and Policy (“OIP”) responded to EPIC’s letters “on behalf of the Offices of the Attorney General and Legal Policy.” Pl.’s Mot., Exh. 12, at 1. OIP wrote that “your request for expedited processing . . . should be granted.” Id. Notwithstanding this determination, OIP stated that “we will be unable to comply with the twenty-working-day time limit in this case.” Id. OIP did not inform EPIC of an anticipated date for the completion of the processing of EPIC’s FOIA requests.
Almost three weeks later, on January 6, 2006, OIPR responded to EPIC’s FOIA request and stated that “the Office of Public Affairs granted your request for expedited treatment.” Pl.’s Mot., Exh. 13, at 1. OIPR further stated that “your request will be reviewed ahead of others routinely processed on a first-in, first-out basis” but did not inform EPIC of an anticipated date for the completion of the processing. Id. On January 25, 2006, OLC similarly advised EPIC that its request for expedited processing had been granted. Thus, all four DOJ components to which EPIC sent its requests have conceded that expedited processing is appropriate.
To date, DOJ has neither completed the processing of EPIC’s FOIA requests nor informed EPIC of an anticipated date for the completion of the processing of the requests.2 On January 19, 2006, EPIC moved for a preliminary injunction to enjoin DOJ’s “unlawful attempts

2

At the preliminary injunction hearing, held on February 10, 2006, counsel for DOJ stated

that she believed that disclosures would begin on March 3, 2006, and continue on a rolling basis.

She was unable to predict when the production would be completed, however.

4

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to impede plaintiff’s efforts to obtain agency records.” Pl.’s Mot. at 1. EPIC seeks an order requiring DOJ to complete the processing of its FOIA requests within twenty days and to provide a Vaughn index3 within thirty days.
II. ANALYSIS A. Propriety of Considering Preliminary Injunctive Relief
As a threshold matter, DOJ questions the propriety of EPIC seeking preliminary injunctive relief in this case, arguing that “such extraordinary and draconian emergency relief” is “unprecedented.” Def.’s Opp’n at 1. Further, DOJ accuses EPIC of using the motion for a preliminary injunction, which according to the DOJ seeks “a version of the ultimate relief” in the case, as a litigation tactic “to artificially accelerate the proceedings in this case.” Id. at 2–3.
DOJ’s argument that EPIC acts improperly in seeking a preliminary injunction is unavailing. On numerous occasions, federal courts have entertained motions for a preliminary injunction in FOIA cases and, when appropriate, have granted such motions. See ACLU v. Dep’t of Defense, 339 F. Supp. 2d 501, 503 (S.D.N.Y. 2004) (granting preliminary injunction motion in FOIA case and requiring production within one month); Aguilera v. FBI, 941 F. Supp. 144, 152–53 (D.D.C. 1996) (granting preliminary injunction in FOIA case and requiring expedited processing to be completed within approximately one month); Cleaver v. Kelley, 427 F. Supp. 80, 81–82 (D.D.C. 1976) (granting preliminary injunction in FOIA case and requiring expedited processing to be completed within approximately twenty days); see also Al-Fayed v. CIA, 2000

3

A Vaughn index describes what information the agency withheld from the FOIA

requester as well as the statutory exemption claimed for each withholding. See Vaughn v. Rosen,

484 F.2d 820 (D.C. Cir. 1973).

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U.S. Dist. LEXIS 21476, at *19–20 (D.D.C. Sept. 20, 2000) (denying preliminary injunction in FOIA case after conducting four-part analysis); Assassination Archives & Research Ctr. v. CIA, 1988 U.S. Dist. LEXIS 18606, at *1–3 (D.D.C. Sept. 29, 1988) (same).4
Moreover, the D.C. Circuit has held that “[t]he FOIA imposes no limits on courts’ equitable powers in enforcing its terms” and “unreasonable delays in disclosing non-exempt documents violate the intent and purpose of the FOIA, and the courts have a duty to prevent [such] abuses.” Payne Enters. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988) (quotation omitted). Therefore, the court does not hesitate to consider the merits of EPIC’s motion. B. Standard for Preliminary Injunctive Relief
This court may issue a preliminary injunction only when the movant demonstrates: (1) a substantial likelihood of success on the merits; (2) that it would suffer irreparable injury if the injunction is not granted; (3) that an injunction would not substantially injure other interested parties; and (4) that the public interest would be furthered by the injunction. Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998) (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995)); see also Bancoult v. McNamara, 227 F. Supp. 2d 144, 150 (D.D.C. 2002). “These factors interrelate on a sliding scale and must be balanced against each other.” Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1318 (D.C. Cir. 1998).

4

All of the District of Columbia cases cited above involved challenges to an agency’s

decision to deny expedited processing, while EPIC’s case seeks to speed up processing of

requests that the government concedes are worthy of expedition. This distinction does not negate

the propriety of this court’s consideration of the merits of EPIC’s motion, for the cited cases

stand for the proposition that the court may use its equitable power to prevent agency delay, even

when exercise of such authority is preliminary in nature.

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Because preliminary injunctions are extraordinary forms of judicial relief, district courts should grant them sparingly. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). Although the court has the discretion to issue or deny a preliminary injunction, Ambach v. Bell, 686 F.2d 974, 979 (D.C. Cir. 1982), it is not a form of relief granted lightly.
1. Likelihood of Success on the Merits FOIA requires agencies to “make available to the public information.” 5 U.S.C. § 522(a). The purpose of providing information to the public is “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 352, 361 (1976). To achieve this goal, FOIA requires that an agency determine, within twenty working days, whether or not to comply with a FOIA request. 5 U.S.C. § 552(a)(6)(A)(I). An agency’s failure to comply with these time limits may be treated as “constructive exhaustion” of administrative remedies, authorizing the requester to seek judicial review immediately. Id. § 552(a)(6)(C)(i). After suit is filed, an agency may obtain a stay of proceedings from the court in order to gain more time to complete its processing. Such stays, however, may only be granted if the agency can show that “exceptional circumstances exist and that the agency is exercising due diligence in responding to the request.” Id. § 552(a)(6)(C)(i)–(iii); Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 610–16 (D.C. Cir. 1976).
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In 1996, Congress passed the Electronic Freedom of Information Act Amendments, which, inter alia, added to FOIA a requirement that agencies provide for expedited processing of requests in certain cases. 5 U.S.C. § 552(a)(6)(E).5 When expedition is appropriate, an agency is obligated to process the request “as soon as practicable.” Id. § 552(a)(6)(E)(iii); 28 C.F.R. § 16.5(d)(4). Here, there is no dispute that EPIC’s FOIA requests are entitled to expedited processing; all four of the DOJ components who received EPIC’s requests have so conceded. Rather, the primary dispute between the parties in this matter is the meaning of the statutory language “as soon as practicable.”
While “as soon as practicable” remains undefined in FOIA, such language must be construed in light of the entire statutory scheme enacted by Congress. See Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 809 (1989) (“It is a fundamental canon of statutory construction

5

The expedited processing provision of FOIA states, in relevant part, that:

(E)(i) Each agency shall promulgate regulations . . . providing for expedited processing of requests for records— (I) in cases in which the person requesting the records demonstrates a compelling need; and (II) in other cases determined by the agency.
*** (v) For purposes of this subparagraph, the term “compelling need” means—
(I) that a failure to obtain requested records on an expedited basis under this paragraph could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(II) with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.
5 U.S.C. § 552(a)(6)(E). As required by the amended FOIA, the DOJ implemented regulations providing for the
expedited processing of requests in cases where there is a compelling need, as defined above, as well as in cases involving “[t]he loss of substantial due process rights” or “[a] matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.” 28 C.F.R. § 16.5(d)(1)(i)–(iv).

8

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that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”); Time Warner Entm’t Co. v. FCC, 240 F.3d 1126, 1135 (D.C. Cir. 2001) (“We must place the statutory language in context and ‘interpret the statute as a symmetrical and coherent regulatory scheme.’”) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)). Moreover, statutes must be interpreted, if possible, to avoid absurd results. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982) (“[I]nterpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available.”); FTC v. Ken Roberts Co., 276 F.3d 583, 590 (2001).
DOJ argues that the “as soon as practicable” language in the expedited processing provisions should be interpreted to impose no concrete deadline. Rather, according to DOJ, the court should interpret expedition under FOIA to require merely that an agency move a request “to the head of the line.” Def.’s Opp’n at 11. Moreover, DOJ insists that courts should defer to an agency’s determination that it is giving priority to a request and processing it “as soon as practicable.”
Under DOJ’s view of the expedited processing provisions of FOIA, the government would have carte blanche to determine the time line for processing expedited requests, with the courts playing no role whatsoever in the process. When pressed at the preliminary injunction hearing as to what delay would be excessive enough such that a court could properly invoke its authority to compel production, counsel for DOJ was unable or unwilling to give an answer.
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Rather, DOJ’s counsel suggested that the court and the requestor simply must take at face value an agency’s determination that more time is necessary, regardless of the time that has elapsed since the request was filed. DOJ’s position is easily rejected.
As EPIC suggests, DOJ’s reading of the statute would give the agency unchecked power to drag its feet and “pay lip service” to a requester’s “statutory and regulatory entitlement to expedition.” Pl.’s Mot. at 12. Further, such a reading runs counter to the language of the statute and relevant case law. FOIA, as amended, envisions the courts playing an important role in guaranteeing that agencies comply with its terms. First, FOIA explicitly states that “failure by an agency to respond in a timely manner to [an expedited] request shall be subject to judicial review.” 5 U.S.C. § 552(a)(6)(E)(iii). See also 5 U.S.C. § 552(a)(4)(B) (“[T]he district court . . . has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld”). Adopting the government’s position—that an agency has unfettered discretion to determine how long is practicable for processing expedited requests—would require the court to abdicate its “duty” to prevent “unreasonable delays in disclosing non-exempt documents.” Payne Enters., 837 F.2d at 494 (quotation omitted).
Furthermore, relevant case law establishes that courts have the authority to impose concrete deadlines on agencies that delay the processing of requests meriting expedition. These cases implicitly reject the notion that the decision of practicability is to be determined solely by the agency and support the contention that courts have the authority, and perhaps the obligation, to scrutinize closely agency delay. See, e.g., Leadership Conference on Civil Rights v. Gonzales, 2005 U.S. Dist. LEXIS 33158, at *32–33 (D.D.C. Dec. 9, 2005) (requiring DOJ to expedite the
10

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plaintiff’s FOIA request and produce the requested documents within ten months); Elec. Privacy Info. Ctr. v. Dep’t of Justice, Civ. No. 05-845, slip op. at *4–5 (D.D.C. Nov. 13, 2005) (noting that the agency’s processing of the plaintiff’s expedited request was “unnecessarily slow and inefficient” and ordering the agency to process 1500 pages every 15 calendar days until processing is complete); Aguilera, 941 F. Supp. at 153 (requiring processing to be completed within approximately one month); Cleaver, 427 F. Supp. at 81–82 (requiring processing to be concluded in less than one month).
In one case, the court specifically rejected the agency’s argument that it was already expediting the plaintiff’s request and ordered certain initial production within eleven days of the preliminary injunction hearing. ACLU, 339 F. Supp. 2d at 503. In that case, the defendant agency presented a similar argument to the one presented in this case; namely, that because the “defendant agencies were responding ‘as soon as practicable,’ the issue before [the court] was moot and . . . the court lacked jurisdictional capacity to intervene.” Id. The court rejected this argument, holding that it had the authority to intervene and finding that “the government had failed to respond properly to plaintiffs’ request.” Id.6
Having rejected DOJ’s argument that FOIA grants an agency unfettered discretion to determine when to process expedited requests, the court must next determine at what point processing becomes unreasonably delayed such that judicial intervention is appropriate. EPIC asserts that the twenty-day deadline that applies to standard FOIA requests should, at a minimum,

6

In ACLU, the Department of Defense was ordered to produce certain documents within

eleven days of the preliminary injunction hearing. 339 F. Supp. 2d at 503. The parties were also

ordered to confer and propose a schedule for the production of the balance of the requested

documents one week later. Id. When the parties failed to agree, the court ordered the production

of all remaining documents within one month. Id. at 505.

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also apply to requests meriting expedited processing. As EPIC argues, Congress could not have intended to create the absurd situation wherein standard FOIA requests must be processed within twenty days (unless the agency can show that exceptional circumstances exist for a delay), yet expedited requests empower an agency to unilaterally decide to exceed the standard twenty-day period. Here, DOJ has neither met the twenty-day deadline, nor has it suggested that exceptional circumstances exist to extend that deadline. Therefore, EPIC argues that, a fortiori, the DOJ must have exceeded the deadline for expedited requests.
The Electronic Freedom of Information Act Amendments of 1996, which enacted the expedited processing provision, “underlined Congress’s recognition of the value in hastening release of certain information.” Edmonds v. FBI, 417 F.3d 1319, 1324 (D.C. Cir. 2005). The legislative history of the amendments makes clear that, although Congress opted not to impose a specific deadline on agencies processing expedited requests, its intent was to “give the request priority for processing more quickly than otherwise would occur.” S. Rep. No. 104-272, at 17 (1996) (emphasis added). Interpreting FOIA to allow the agency more time than that provided in situations involving standard FOIA requests neither hastens the release of information nor does it allow for processing “more quickly than otherwise would occur.” For these reasons, this court is of the view that the phrase “as soon as practicable,” in the context of a provision of FOIA allowing for expedited processing, cannot be interpreted to impose a lower burden on the agency than would otherwise exist.7 Doing so would not be “consistent with the legislative purpose” of

7

It is important to remember that the “as soon as practicable” language is found in a

provision providing for “expedited processing.” The plain meaning of the word “expedite” is “to

speed up the progress of.” AMERICAN HERITAGE DICTIONARY 461 (New College ed. 1976). Any

reading of the statutory language that allows the agency more time than allowed in standard

requests would therefore run counter to the clear meaning of the words used in the expedited

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FOIA and would “produce absurd results.” Griffin, 458 U.S. at 575. Therefore, the court concludes that an agency that violates the twenty-day deadline applicable to standard FOIA requests presumptively also fails to process an expedited request “as soon as practicable.” That is, a prima facie showing of agency delay exists when an agency fails to process an expedited FOIA request within the time limit applicable to standard FOIA requests.
The presumption of agency delay raised by failing to respond to an expedited request within twenty days is certainly rebuttable if the agency presents credible evidence that disclosure within such time period is truly not practicable.8 Here, however, DOJ has not attempted to present any evidence either that processing EPIC’s FOIA requests within twenty days of the

processing provision.

8

DOJ argues that, because EPIC bears the burden proving that it is entitled to a preliminary

injunction, it must also bear the burden of proving that the agency is not acting “as soon as

practicable.” The court is comfortable rejecting this argument and placing such a burden on the

agency once the twenty-day deadline has passed for two reasons. First, doing so is fair given that

DOJ has sole access to and control over evidence pertaining to when processing can practicably

be completed. See Keyes v. School Dist. No. 1, 413 U.S. 189, 209 (1973) (“There are no hard

and fast standards governing the allocation of the burden of proof in every situation. The issue,

rather, is merely a question of policy and fairness based on experience in the different

situations.”) (quoting 9 J. WIGMORE, EVIDENCE § 2486, at 275 (3d ed. 1940)). As the Supreme

Court has explained, it is “entirely sensible to burden the party more likely to have information

relevant to the facts about [the matter at issue] with the obligation to demonstrate [those] facts. . .

. Such was the rule at common law.” Concrete Pipe & Prods. v. Constr. Laborers Pension

Trust, 508 U.S. 602, 626 (1993); see also MCCORMICK ON EVIDENCE § 337, at 510 (5th ed.

1999) (“A doctrine often repeated by the courts is that where the facts with regard to an issue lie

peculiarly in the knowledge of a party, that party has the burden of proving the issue.”).

Second, interpreting the expedited processing provision to place the burden on the agency

to account for delay would create a “symmetrical and coherent regulatory scheme.” Brown &

Williamson, 529 U.S. at 133. An agency sued for not responding to a standard FOIA request can

receive additional time to process that request only if it meets its burden of establishing that the

agency is exercising due diligence in exceptional circumstances. 5 U.S.C. § 552(a)(6)(C)(i)–(iii).

Because Congress imposed a burden on agencies to account for any delay in the processing of

standard FOIA requests, it stands to reason that an agency may also be held to account for delays

in expedited processing.

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receipt of EPIC’s requests was impracticable or that processing the complaint within the time period requested by EPIC in its motion (twenty days from the date this memorandum opinion is filed and three months from the date DOJ received EPIC’s FOIA requests) is not practicable. Instead, the DOJ is content to rest on its unsupported allegations that delay is necessary because EPIC’s requests are “broad” and involve classified documents. Pl.’s Opp’n at 14. These vague assertions, unsupported by credible evidence, are insufficient to demonstrate that further delay is currently necessitated. Wilderness Soc’y v. Dep’t of Interior, 2005 U.S. Dist. LEXIS 20042, at *34–35 (D.D.C. Sept. 12, 2005) (listing cases that hold that an agency must present “analysis, statistics, agency affidavits, declarations, or other sworn statements” to meet its burden of establishing that further time for processing a FOIA request is required). Moreover, courts often find that one to two months is sufficient time for an agency to process broad FOIA requests that may involving classified or exempt material. See, e.g., ACLU, 339 F. Supp. 2d at 504–05 (despite the fact that national security issues were raised by the FOIA request at issue, ordering production of all responsive documents within one month); Judicial Watch, Inc. v. Dept’ of Energy, 191 F. Supp. 2d 138, 140–41 (D.D.C. 2002) (ordering agencies to process over 6000 pages of material within 60 days); NRDC v. Dep’t of Energy, 191 F. Supp. 2d 41, 43 (D.D.C. 2002) (ordering the “vast majority” of the processing of 7500 pages to be completed within 32 days).
For these reasons, the court concludes that EPIC has made a clear showing that it is likely to succeed on the merits. It is undisputed that EPIC’s FOIA requests merit expedition; all four of the relevant DOJ components have granted expedited processing to EPIC. Furthermore, DOJ has
14

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exceeded the twenty-day period applicable to standard FOIA requests. Finally, DOJ has not presented evidence that processing EPIC’s FOIA requests within the next twenty days would be impracticable.
2. Irreparable Injury As the Supreme Court has made clear, public awareness of the government’s actions is “a structural necessity in a real democracy.” Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004). Not only is public awareness a necessity, but so too is timely public awareness. For this reason, Congress recognized that delay in complying with FOIA requests is “tantamount to denial.” H.R. Rep. No. 93-876, at 6 (1974). The D.C. Circuit likewise acknowledged that “stale information is of little value.” Payne Enters., 837 F.2d at 494. The 1996 amendments to FOIA creating the statutory right to expedition in certain cases “underlined Congress’ recognition of the value in hastening release of certain information.” Edmonds, 417 F.3d at 1324. As EPIC correctly notes, “the loss of that ‘value’ constitutes a cognizable harm.” Pl.’s Reply at 7. As time is necessarily of the essence in cases like this, such harm will likely be irreparable. DOJ insists that EPIC will suffer no harm if the court were to deny EPIC’s motion for a preliminary injunction because DOJ has already afforded EPIC all the relief to which it is entitled. Because it has already expedited EPIC’s FOIA requests by administratively granting them expedited status and prioritizing them over other pending requests, DOJ argues that EPIC is entitled to “nothing more.” Def.’s Opp’n at 16. This argument stretches the limits of plausibility. EPIC’s right to expedition is certainly not satisfied by DOJ’s decision to give priority to EPIC’s requests. What matters to EPIC is not how the requests are labeled by the agency, but rather when the documents are actually released. As EPIC contends, “merely paying
15

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lip service” to EPIC’s statutory right does not negate “the harm that results from the agency’s failure to actually expedite its processing.” Pl.’s Reply at 7 (emphasis in original). Unless the requests are processed without delay, EPIC’s right to expedition will be lost.
Morever, DOJ’s arguments challenging the irreparable nature of the harm sustained by EPIC as a result of DOJ’s delay is severely undermined by its determination that EPIC’s FOIA requests merit expedition. Such a determination necessarily required DOJ to find that there was an “urgency to inform the public” about the warrantless surveillance program. Pl.’s Mot., Exhs. 12, 13 (emphasis added). Given this concession, the court finds it hard to accept DOJ’s current argument that disclosure is not urgent and that further delay will not harm EPIC.
Beyond losing its right to expedited processing, EPIC will also be precluded, absent a preliminary injunction, from obtaining in a timely fashion information vital to the current and ongoing debate surrounding the legality of the Administration’s warrantless surveillance program. President Bush has invited meaningful debate about the warrantless surveillance program. David E. Sanger, In Shift, Bush Says He Welcomes Inquiry on Secret Wiretaps, N.Y. TIMES, Jan. 12, 2006. That can only occur if DOJ processes its FOIA requests in a timely fashion and releases the information sought.9

9

DOJ argues that “[b]ased upon the information that the government has already made

public . . . plaintiff is fully able to participate in the current public debate.” Def.’s Opp’n at 18.

This argument is quickly rejected, for as EPIC correctly argues, “a meaningful and truly

democratic debate on the legality and propriety of the warrantless surveillance program cannot be

based solely upon information that the Administration voluntarily chooses to disseminate.” Pl.’s

Reply at 8 (quotation omitted).

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3. Burden on Others’ Interests EPIC argues that DOJ cannot be said to “be burdened by a requirement that it comply with the law.” Pl.’s Mot. at 15. In its papers, DOJ never contests this point. Indeed, DOJ fails to make any case whatsoever that it will be burdened by granting a preliminary injunction in this matter, thereby conceding that this factor of the preliminary injunction inquiry weighs in EPIC’s favor. Additionally, it is notable that the DOJ components at issue in this case carry relatively small FOIA caseloads and handle very few, if any, expedited requests. The DOJ statistics for 2004 indicate that OIPR, OLP and OLC handled no requests that merited expedited processing, and OAG handled only two. Pl.’s Mot., Exh. 18. Therefore, requiring expedited processing of the requests at issue should not be unduly burdensome to DOJ and should not cause any delay to other expedited FOIA requests. 4. Public Interest The public interest prong is met because “there is an overriding public interest . . . in the general importance of an agency’s faithful adherence to its statutory mandate.” Jacksonville Port Auth. v. Adams., 556 F.2d 52, 59 (D.C. Cir. 1977). Moreover, the public interest is also served by the expedited release of the requested documents because it furthers FOIA’s core purpose of “shed[ding] light on an agency’s performance of its statutory duties.” Dep’t of Justice v. Reporter’s Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989); see also Ctr. to Prevent Handgun Violence v. Dep’t of Treasury, 49 F. Supp. 2d 3, 5 (D.D.C. 1999) (“There is public benefit in the release of information that adds to citizens’ knowledge”). Finally, given the great
17

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public and media attention that the government’s warrantless surveillance program has garnered and the recent hearings before the Senate Judiciary committee, the public interest is particularly well-served by the timely release of the requested documents.
DOJ counters that a preliminary injunction will actually harm the public interest. Specifically, DOJ suggests that requiring the agency to finish its processing within twenty days will increase the chances that the agency will inadvertently disclose exempted documents. As Congress has determined that it is in the public interest to prevent the public disclosure of such documents, the public interest would be harmed “by compelling disclosure before appropriate agency review intended to protect material that is subject to statutory exemptions from disclosure can be completed.” Def.’s Opp’n at 22.
To be sure, the court does not wish for DOJ to inadvertently release exempted materials. For that matter, “[i]t is the duty of the court to uphold FOIA by striking a proper balance between [EPIC’s] right to receive information on government activity in a timely manner and the government’s contention that national security concerns prevent timely disclosure or identification.” ACLU, 339 F. Supp. 2d at 504. However, “[m]erely raising national security concerns cannot justify unlimited delay.” Id. Congress has already weighed the value of prompt disclosure against the risk of mistake by an agency and determined that twenty days is a reasonable time period, absent exceptional circumstances, for an agency to properly process standard FOIA requests. Here, DOJ has not yet made any specific showing that it will not be able to process the documents within the time period sought by EPIC. Vague suggestions that inadvertent release of exempted documents might occur are insufficient to outweigh the very tangible benefits that FOIA seeks to further—government openness and accountability.
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* * * In sum, the record as currently before the court demonstrates that EPIC’s motion for a preliminary injunction should be granted. EPIC has shown that, because DOJ has neither satisfied the time restraints applicable to standard FOIA requests nor established that such compliance was not practicable, EPIC is likely to succeed on the merits. Second, EPIC’s right to timely release of the requested documents will be irreparably harmed if the documents are not processed promptly. Finally, both of the remaining factors of the preliminary injunction standard—that it further the public interest and that it not burden others’ interests—counsel in favor of granting EPIC’s motion.
III. CONCLUSION Accordingly, it is this 16th day of February, 2006, hereby ORDERED that EPIC’s motion for a preliminary injunction [#3] is GRANTED; and it is further ORDERED that DOJ shall complete the processing of EPIC’s December 16, 2005 FOIA requests and produce or identify all responsive records within 20 days of the date of this order; and it is further ORDERED that DOJ shall provide EPIC with a document index and declaration, as specified in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), stating its justification for the withholding of any documents responsive to EPIC’s requests within 30 days of the date of this order.
Henry H. Kennedy, Jr. United States District Judge
19

 
 Case 1:06-cv-00214-RCL Document 34 Filed 09/05/07 Page 1 of 24

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,
Plaintiff, v.
DEPARTMENT OF JUSTICE,
Defendant.

Civil Action 06-00096 (HHK)

AMERICAN CIVIL LIBERTIES UNION, et al.,
Plaintiffs, v.
DEPARTMENT OF JUSTICE,
Defendant.

Civil Action 06-00214 (HHK)

MEMORANDUM OPINION AND ORDER In these consolidated actions, plaintiffs Electronic Privacy Information Center (“EPIC”), American Civil Liberties Union, American Civil Liberties Union Foundation (collectively “ACLU”), and The National Security Archive Fund, Inc. (“NSAF”)1 bring claims against the Department of Justice (“DOJ”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking the release of agency records regarding the Bush Administration’s policy of conducting surveillance of domestic communications without the prior authorization of the Foreign

1 Hereinafter, the court will refer to all plaintiffs collectively as “EPIC” unless otherwise stated.

Case 1:06-cv-00214-RCL Document 34 Filed 09/05/07 Page 2 of 24
Intelligence Surveillance Court (“FISA Court”).2 Before the court are two motions: DOJ’s motion for summary judgment and EPIC’s motion for in camera review of withheld records. Upon consideration of the motions, the oppositions thereto, and the record of the case, the court concludes that the motion for summary judgment must be granted in part, denied in part, and held in abeyance in part, and that the motion for in camera review must be denied without prejudice.
I. FACTUAL BACKGROUND A. Plaintiffs’ FOIA Requests
On December 16, 2005, the New York Times first reported that President Bush “secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying.” James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005; Pls.’ Mot. for Prelim. Inj. Ex. 1. The Times also reported that the purported legal justification for the warrantless surveillance program had been developed by DOJ attorneys and officials, that DOJ “audited the N.S.A. program,” and that DOJ “expanded and refined a checklist to follow in deciding whether probable cause existed to start monitoring someone’s communications.” Ibid.3
In response to this news, EPIC submitted four FOIA requests that same day to four DOJ departments — the Office of the Attorney General (“OAG”), the Office of Intelligence Policy
2 “FISA” refers to the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq. 3 In its submissions, DOJ has identified the surveillance activities at issue to be the socalled “Terrorism Surveillance Program,” or “TSP.” Def.’s Ex. A ¶¶ 18–20 (Decl. of Bradbury).
2

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and Review (“OIPR”), the Office of Legal Counsel (“OLC”), and the Office of Legal Policy (“OLP”) — citing the Times article and requesting records “from September 11, 2001 to the present concerning a presidential order or directive authorizing the National Security Agency (‘NSA’), or any other component of the intelligence community, to conduct domestic surveillance without the prior authorization of the Foreign Intelligence Surveillance Court.” Pl.’s Mot. for Prelim. Inj., Exs. 7, 8, 9 & 10. EPIC specifically sought the following items:
(1) an audit of NSA domestic surveillance activities; (2) guidance or a “checklist” to help decide whether probable cause exists to monitor
an individual’s communications; (3) communications concerning the use of information obtained through NSA
domestic surveillance as the basis for DOJ surveillance applications to the [FISA Court]; and (4) legal memoranda, opinions or statements concerning increased domestic surveillance, including one authored by John C. Yoo shortly after September 11, 2001 discussing the potential for warrantless use of enhanced electronic surveillance techniques. Id. ACLU and NSAF submitted similar requests. ACLU requested any presidential orders authorizing the NSA to engage in warrantless electronic surveillance. Bradbury Decl. Ex. B. It also requested records relating to the policies, practices and procedures of the NSA (1) for selecting individuals to subject to warrantless domestic surveillance; (2) for gathering, maintaining, storing, and sharing information generated through such surveillance; (3) for using gathered information as the basis for FISA requests; and (4) for consulting with, or obtaining approval from, DOJ, before engaging in warrantless electronic surveillance. Ibid. ACLU also requested any DOJ “legal reviews of the program and its legal rationale,” any DOJ audit of the program, and any other records on the constitutionality, legality, and/or propriety of the NSA’s
3

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warrantless domestic spying. Ibid. NSAF sought copies of “[a]ll memoranda, legal opinions, directives or instructions from [DOJ departments] issued between September 11, 2001, and December 21, 2005, regarding the government’s legal authority for surveillance activity, wiretapping, eavesdropping, and other signals intelligence operations directed at communications to or from U.S. citizens.” Bradbury Decl. Ex. C. NSAF also sought the inclusion of “all documents discussing the President’s surveillance authority under the September 2001 congressional use of force resolution as well as the President’s independent ability to authorize signals intelligence activities.” Ibid.
After the court granted EPIC’s motion for expedited processing and consolidated these actions, DOJ substantially completed its response to plaintiffs’ requests.4 DOJ released a small number of documents and claimed exemptions under FOIA from the obligation to release documents as to the majority of the requested records. The present motions followed. In support of its motion, DOJ has submitted a series of ex parte classified declarations (from various DOJ departments and NSA) for the court’s review, redacted versions of which have been filed on the public record.5
4 In processing these requests, the responding DOJ departments referred certain documents in their possession to each other and to other departments, based on their determinations as to which department had appropriate primary custodial responsibility for each document or category of documents. The primary department then made the determination as to whether the referred document or category of documents should be released. Documents requested from OAG (which appears to be represented in this matter for all purposes by the Office of the Deputy Attorney General (“ODAG”)) and OLP were referred to and processed by DOJ’s Office of Information and Privacy (“OIP”).
5 NSA has designated these declarations as being subject to an exceedingly high level of secrecy under the Executive’s classification policies. See Def.’s Ex. G ¶¶ 11–12 (Decl. of Rowan). Without expressing approval or disapproval of DOJ’s use of these ex parte declarations — and without opining regarding whether the declaration redactions are legitimately classified
4

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B. Scope Of The Dispute EPIC has disclaimed or withdrawn objections regarding (1) the adequacy of DOJ’s
searches for responsive records; (2) drafts of documents and discussions about drafts and the drafting process; (3) documents withheld by DOJ’s Criminal Division; (4) records deemed to be nonagency records; (5) duplicates of other documents deemed responsive and either released or withheld by other departments; and (6) redactions of names and identifying information pursuant to Exemptions 2, 6, and 7(C) (EPIC does not challenge the redactions themselves but does challenge the withholding of entire documents which contain information protected by these exemptions). Thus, the present controversy encompasses final (i.e., nondraft) nonduplicate records withheld by each department other than the Criminal Division.
II. STATUTORY BACKGROUND A. FOIA
The purpose of FOIA is “to pierce the veil of administrative secrecy and open agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). FOIA embodies “a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” Id. at 360–61 (quoting S. Rep. No. 89-813, at 3 (1965)). The language protecting information from disclosure is set
(beyond a measure of skepticism as to some portions thereof) — the court does express substantial frustration with one aspect of the Executive’s approach to this information: In part for purposes of this case, this judicial officer had his law clerk cleared through an extensive, high-level background investigation so that the clerk would have access to classified information, and specifically to the documents lodged in this case. Notwithstanding the clearance obtained, it has become apparent that the Executive will not grant the clerk access to the classified declarations filed here, at least not in the absence of vociferous resistance from this judicial officer. This stance is baffling and has been significantly disruptive to the court’s review of this matter.
5

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forth within FOIA itself in a series of exemptions that are customarily referred to by numbers corresponding to the subsections in which the exemptions are enumerated. See 5 U.S.C. § 552(b). The Act mandates a “strong presumption in favor of disclosure,” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991), and the statutory exemptions to disclosure are to be “narrowly construed,” Rose, 425 U.S. at 361. At the same time, the exemptions are to be given “meaningful reach and application.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). B. Segregability
A government agency is required to assess the application of FOIA’s exemptions with an eye towards disclosure. As such, once an agency identifies information that it believes is exempt, it must undertake a segregability analysis. The purpose of this assessment is to separate exempt material from any nonexempt material, and to produce the nonexempt material. See Vaughn v. Rosen, 484 F.2d 820, 825 (D.C. Cir. 1973) (stating that “an entire document is not exempt merely because an isolated portion need not be disclosed” and than an “agency may not sweep a document under a general allegation of exemption, even if that general allegation is correct with regard to part of the information”). This exercise is mandated by FOIA itself, which provides that any “reasonably segregable” information in exempt documents must be disclosed after redaction of exempt information. 5 U.S.C. § 552(b). Thus disclosure of nonexempt portions of a document is still required unless those portions are “inextricably intertwined with exempt portions.” Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). “The ‘segregability’ requirement applies to all [§ 552] documents and all exemptions” in the Act.
6

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Schiller v. NLRB, 964 F.2d 1205, 1209 (D.C. Cir. 1992) (quoting Ctr. for Auto Safety v. EPA, 731 F.2d 16, 21 (D.C. Cir. 1984)).
The court is required to make a specific finding as to segregability, ibid.; see also Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999), and “the burden is on the agency to sustain its action,” 5 U.S.C. § 552(a)(4)(B). To satisfy this burden, “the withholding agency must supply ‘a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.’” Schiller, 964 F.2d at 1210 (quoting King v. U.S. Dep’t of Justice, 830 F.2d 210, 224 (D.C. Cir. 1987) (emphasis omitted)); see also Vaughn, 484 F.2d at 827 (an agency must “specify in detail which portions of the document are disclosable and which are allegedly exempt”); Peter S. Herrick’s Customs and Int’l Trade Newsletter v. U.S. Customs and Border Prot., 2005 WL 3274073, at *3 (D.D.C. Sept. 22, 2005) (finding that Customs did not meet the segregability requirement where its Vaughn index failed to identify each exemption with related material, explain why certain pages were withheld in full and others in part, or describe redacted information with useful detail). The agency’s justifications must focus on the withheld information, and thus “an agency cannot justify withholding an entire document simply by showing that it contains some exempt material.” Schiller, 964 F.2d at 1209 (quoting Mead Data Cent., 566 F.2d at 260).
In this case, which touches upon sensitive matters of a classified nature related to national security and counterterrorism operations, in particular by NSA (whose operations are protected from disclosure by statute, see 50 U.S.C. § 402 note; II.D, infra), the most relevant exemptions are Exemptions 1 and 3. Exemption 1 protects classified information from disclosure and
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Exemption 3 protects matters exempted by statutes other than FOIA. 5 U.S.C. § 552(b)(1), (3).
Additionally, because plaintiffs’ requests seek information regarding DOJ’s deliberations and
legal analyses regarding the potential propriety or impropriety of proposed surveillance actions,
Exemption 5 (which protects information that is privileged, i.e., “would not be available by law
to a party other than an agency in litigation with the agency,” id. § 552(b)(5)) is also of central
importance. These exemptions warrant a brief initial discussion.
C. Exemption 1
Exemption 1 protects information “(A) specifically authorized under criteria established
by an Executive order to be kept secret in the interest of national defense or foreign policy [which
is (B)] in fact properly classified pursuant to such Executive order.” Id. § 552(b)(1). As recently
summarized by this court, judicial review under this exemption is limited, but not insignificant:
While an agency’s declarations setting forth the reasons that information falls within this exemption are entitled to substantial weight, they must nevertheless afford the requester an ample opportunity to contest, and the court to review, the soundness of the withholding. Campbell v. Dep’t of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (observing that “deference is not equivalent to acquiescence”); Goldberg v. Dep’t of State, 818 F.2d 71, 76–77 (D.C. Cir. 1987) (noting that Exemption 1 does not relieve the courts of their “independent responsibility” to review the agency’s decision).
Therefore, to justify summary judgment, an agency affidavit invoking Exemption 1 must provide “detailed and specific” information demonstrating both why the material has been kept secret and why such secrecy is allowed by the terms of an existing executive order. Campbell, 164 F.3d at 30; King, 830 F.2d at 217. If the declarations provide the requisite specificity, however, and are neither contradicted by other record evidence nor contaminated by indications of bad faith, the reviewing court should not ordinarily second-guess the agency’s judgment. Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984) ([stating that courts] must “accord substantial weight to an agency’s affidavit concerning the details of the classified status of the disputed record[]”). Instead, the court must recognize that the executive branch departments responsible for national security and national defense have unique insights and special expertise concerning the kind of disclosures that may be harmful. See Krikorian v. Dep’t of State, 984 F.2d 461, 464 (D.C. Cir. 1993); Salisbury v. United States, 690 F.2d 966, 970 (D.C. Cir. 1982); Military
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Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). In other words, while a court is ultimately to make its own decision, that decision must take seriously the government’s predictions about the security implications of releasing particular information to the public, at least where those predictions are sufficiently detailed and do not bear any indicia of unreliability. American Civil Liberties Union v. FBI, 429 F. Supp. 2d 179, 187–88 (D.D.C. 2006). D. Exemption 3 Exemption 3 of FOIA covers records that are “specifically exempted from disclosure by statute . . . , provided that such statute” either “(A) [requires withholding] in such a manner as to leave no discretion on the issue,” or “(B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3); see also Senate of Puerto Rico v. U.S. Dep’t of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987). To justify withholding information pursuant to this exemption, the withholding agency “must point to an appropriate nondisclosure statute” and must also “demonstrate that the withheld materials are covered by that particular statute.” People for the Am. Way Found. v. NSA, 462 F. Supp. 2d 21, 28 (D.D.C. 2006) (citing CIA v. Sims, 471 U.S. 159, 167 (1985)); see also Ass’n of Retired R.R. Workers v. U.S. R.R. Ret. Bd., 830 F.2d 331, 334–38 (D.C. Cir. 1987) (discussing test to be applied pursuant to Exemption 3 and requiring reviewing courts to determine whether “the information sought after falls within the boundaries of the non-disclosure statute”). This exemption “differs from other FOIA exemptions in that its applicability depends less on the detailed factual contents of specific documents; the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within the statute’s coverage.” Fitzgibbon v. CIA, 911 F.2d 755, 761–62 (D.C. Cir. 1990) (quoting Ass’n of Retired R.R. Workers, 830 F.2d at 336); Krikorian, 984 F.2d at 465–66 (courts “do not closely scrutinize” Exemption 3 claims but should
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nonetheless assess “whether the document falls within [the] statute” relied upon by the agency). Thus an agency may justify its withholdings under this exemption in general terms, without necessarily proceeding on a document-by-document basis, so long as the justification sufficiently demonstrates that the material withheld is exempt. The court must give a measure of deference to agency affidavits in this regard. Fitzgibbon, 911 F.2d at 762. These differences notwithstanding, a reviewing court must still assure itself that the material withheld is actually exempted by the claimed statute, Am. Way Found., 462 F. Supp. 2d at 28; Krikorian, 984 F.2d at 465–66, and that the exempt material cannot be segregated from non-exempt material appearing in the same records, Assassination Archives and Research Ctr. v. CIA, 334 F.3d 55, 57–58 & n.3 (D.C. Cir. 2003) (noting applicability of segregability analysis in Exemption 3 context); Schiller, 964 F.2d at 1209 (stating that “[t]he ‘segregability’ requirement applies to all [§ 552] documents and all exemptions” in the Act).
Here, DOJ contends that the withheld documents are protected from disclosure by various statutes, two in particular: First, § 1011 of the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (Dec. 17, 2004), codified at 50 U.S.C. § 403-1(i)(1), requires the Director of National Intelligence to “protect intelligence sources and methods from unauthorized disclosure.” This statute, DOJ argues, falls within the exemption. See Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982) (discussing predecessor statute applicable to the CIA, which provided that “the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure”); Fitzgibbon, 911 F.2d at 761 (“There is thus no doubt that [the predecessor CIA statute] is a proper exemption statute under exemption 3.”).
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Second, § 6 of the National Security Agency Act of 1959, Pub. L. No. 86-36, § 6, 73 Stat.
63, 64, codified at 50 U.S.C. § 402 note, provides:
[N]othing in this Act or any other law . . . shall be construed to require the disclosure of the organization or any function of the National Security Agency, of any information with respect to the activities thereof, or of the names, titles, salaries, or number of persons employed by such agency.
Ibid. This statute qualifies for FOIA protection pursuant to Exemption 3. See Founding Church
of Scientology, Inc. v. NSA, 610 F.2d 824, 828 (D.C. Cir. 1979); Hayden v. NSA, 608 F.2d 1381,
1389 (D.C. Cir. 1979).
E. Exemption 5
As previously noted, Exemption 5 protects “inter-agency or intra-agency memorandums
or letters which would not be available by law to a party other than an agency in litigation with
the agency.” 5 U.S.C. § 552(b)(5). The protections of this exemption encompass various
privileges, such as the so-called “deliberative process” privilege and the attorney-client privilege.
Again, this court provided a concise summary of this exemption in ACLU v. FBI:
This provision has long been interpreted to include a deliberative process privilege . . . . [The privilege] shields from disclosure records the government demonstrates to be both “‘predecisional’” — that is, “generated before the adoption of an agency policy” — and “‘deliberative,’” — that is, “reflect[ive][of] the give-and-take of the consultative process.” [Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).] “The exemption thus covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.” [Ibid.] “Factual material is not protected under the deliberative process privilege unless it is ‘inextricably intertwined’ with the deliberative material.” Judicial Watch, Inc. v. Dep’t of Justice, 432 F.3d 366, 372 (D.C. Cir. 2005) (quoting In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (per curiam)). “To establish that a document is predecisional, the agency need not point to an agency final decision, but merely establish what deliberative process is involved, and the role that the documents at issue played in that process.” Judicial Watch v. Export-Import Bank, 108 F. Supp. 2d 19, 35 (D.D.C. 2000). The exemption also covers material that would fall within the attorney-client privilege. See Nat’l Labor Relations Bd. v. Sears, Roebuck
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& Co., 421 U.S. 132, 149, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975); see also Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184, 95 S. Ct. 1491, 44 L. Ed. 2d 57 (1975). ACLU v. FBI, 429 F. Supp. 2d at 190. The agency invoking Exemption 5 must “‘establish[ ] its right to withhold evidence from the public . . . . [C]onclusory assertions of privilege will not suffice to carry” the agency’s burden. Senate of Puerto Rico, 823 F.2d at 585 (quoting Coastal States, 617 F.2d at 861). Even where material is predecisional or protected by the attorney-client privilege when it is created, it may lose the protection of the privilege if that material “is adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public.” Coastal States, 617 F.2d at 866; see also Nat’l Council of La Raza v. Dep’t of Justice, 411 F.3d 350, 360 (2d Cir. 2005); Falcone v. IRS, 479 F. Supp. 985, 990 (E.D. Mich. 1979) (stating that adopted documents are not protected by the attorney-client privilege, and noting that “broad attorney-client privilege would permit legal opinions, recognized as authoritative interpretations within the agency, to be hidden from the public. Further, it is clear that the purpose of the privilege is not to protect communications which are statements of policy and interpretations adopted by the agency.”). Thus, “an agency will not be permitted to develop a body of ‘secret law,’ used by it in the discharge of its regulatory duties and in its dealings with the public, but hidden behind a veil of privilege, because it is not designated as ‘formal,’ ‘binding,’ or ‘final.’” Coastal States, 617 F.2d at 867; see also Taxation With Representation
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Fund v. IRS, 646 F.2d 666, 677 (D.C. Cir. 1981) (Exemption 5 does not “protect communications that implement an established policy of an agency”).6
III. ANALYSIS DOJ seeks summary judgment, contending that its withholdings (and the explanations offered for those withholdings) are proper and that most of the information requested is classified. EPIC contends that DOJ’s justifications for withholding are either improper or insufficiently justified and requests that the court order in camera review of the withheld documents to verify that DOJ has appropriately withheld the information in question. The court will address the withholdings on a department-by-department basis. In assessing a given department’s withholdings, the court’s analysis will roughly track the declaration(s) filed by the department’s representative(s).7 A. OLC OLC has divided its withheld documents into six categories: (1) records related to the TSP reauthorization process; (2) Category “B,” which is described only in the classified submissions; (3) records related to targets of TSP; (4) Category “D,” another classified category;
6 The privilege is not waived, however, where an agency has adopted only the conclusions of a particular document. “Mere reliance on a document’s conclusions does not necessarily involve reliance on a document’s analysis; both will ordinarily be needed before a court may properly find adoption or incorporation by reference.” La Raza, 411 F.3d at 358; see also Afshar v. Dep’t of State, 702 F.2d 1125, 1143 n.22 (D.C. Cir. 1983) (noting that “[i]f the agency merely carried out the recommended decision without explaining its decision in writing, we could not be sure that the memoranda accurately reflected the decisionmaker’s thinking”).
7 Throughout this opinion, the court uses the term “department” generically to refer both to divisions of DOJ and to executive agencies (i.e., NSA).
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(5) records relating to OLC legal opinions; and (6) briefing materials and talking points. See generally Bradbury Decl.
1. Records Related To The TSP Reauthorization Process Prior to and as of September 2006, TSP expired approximately every forty-five days unless it was then reauthorized by the President. This reauthorization process involved consultation with the Attorney General and officials at OLC, and OLC has withheld documents relating to its involvement in that process. Within this category of records, OLC has identified two subcategories: (1) drafts and notes of OLC staff, and (2) documents directly related to the reauthorization. As to the former, EPIC does not challenge the withholding of drafts, and the “notes” identified in the Bradbury declaration and DOJ’s/OLC’s Vaughn index have been withheld appropriately pursuant to Exemption 5. The court is satisfied that these “notes” and drafts are protected by the attorney-client and the deliberative process privileges. Summary judgment is warranted, therefore, regarding the following records: OLC 34, 67, 74, 7, 93 and 101; ODAG 10, 17, 18, 19, 48, and 65; and OIPR 141. The court declines to grant summary judgment, however, regarding the document identified as FBI 7. The Bradbury Declaration explains that this document “contain[s] classified information regarding the terms of the President’s authorization of the TSP, which, if disclosed would compromise the effectiveness of the Program to the detriment of national security.” Bradbury Decl. ¶ 32. While the court does not doubt that this statement is accurate, it does not substantiate the determination to withhold the document in full. Specifically, OLC’s explanation fails to justify the department’s determination that the information therein cannot be segregated from nonexempt information. See Schiller, 964 F.2d at 1209; ACLU, 429 F. Supp. 2d at 187–88.
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OLC justifies its withholding of “documents directly related” to TSP reauthorization in its classified submissions. As with FBI 7, while the records in this category undoubtedly contain classified information, the court cannot assess whether the documents have, in their entirety, been correctly deemed classified.8 Nor is the court satisfied with OLC’s segregability determination, which is too vague and general to be useful for the court’s purposes. The court therefore will require further submissions regarding these documents.
2. Categories B And D The records belonging to categories B and D have been withheld justifiably for the reasons articulated in the classified portions of the Bradbury declaration. The court grants summary judgment regarding these records. In addition, OLC need not reveal the number of pages of documents belonging to these categories.9 3. Records Related To Targets Of TSP A fourth category of records — those related to targets of TSP — may have been withheld properly. These records involve two types of documents: (1) documents related to the criteria used for targeting and the appropriateness of targeting certain groups of individuals under TSP; and (2) documents containing reporting with respect to the intelligence successes achieved through the use of the TSP. The information specified above is exempt under Exemption 1
8 Here, as elsewhere in this memorandum, sensitivity to maintaining the secrecy of classified matters and information requires the court to limit the breadth and depth of its discussion.
9 This grant of summary judgment comes with one caveat. In the further submissions which DOJ shall provide in this matter, DOJ also is ordered to provide a satisfactory explanation why the headings setting forth the general descriptions (i.e., the titles) of categories B and D have been redacted in the unclassified version of the Bradbury Declaration.
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and/or 3, as is the number of pages of documents falling within this category. In addition, many, if not all, documents in this category may be protected by the deliberative process privilege. See Bradbury Decl. ¶ 53. The court is not satisfied, however, with OLC’s explanation why any of these records do not contain information that is reasonably segregable from the exempt information therein. Indeed, because the language used by OLC is both vague and expansive, the court is not in a position to determine segregability at all, for the simple reason that the court has no way of knowing what any of the records in this category actually are. Nor, therefore, is the court empowered to determine whether the records are protected by the deliberative process privilege. All the court can surmise is the nature of a portion of what these records contain, and that is simply not sufficient for purposes of summary judgment. See Schiller, 964 F.2d at 1209 (stating that “an agency cannot justify withholding an entire document simply by showing that it contains some exempt material”). OLC is required to further identify the individual records in question and to justify, in a far more document-specific fashion, its withholding of these records.
4. Records Related To OLC Legal Opinions For similar reasons, OLC’s justifications for withholding various records related to OLC legal opinions are insufficient. OLC has divided this category into three subcategories: (1) final OLC memoranda, (2) drafts, notes, and comments by OLC staff, and (3) e-mail and fax correspondence to and from OLC. DOJ relies predominantly on Exemption 5 to justify its withholding of these records. Upon review of these justifications, the court concludes that the latter two categories are either uncontested or exempt. OLC has sufficiently identified the predecisional and deliberative aspects of these records.
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As to the “final” memoranda, however, OLC’s withholding justifications are inadequate. First, as with other records at issue in this case, OLC’s submissions do not even sufficiently identify the universe of documents within this category, apart from noting that they are “final” memoranda related to TSP. And while it is appears likely that many of these documents are protected under exemption 5 (because they are privileged as deliberative or as attorney-client communications), the court is powerless to reach that conclusion. Though in his declaration, Bradbury says in passing that all these memoranda are “predecisional,” the court has no way to assess that claim apart from its naked assertion. Coastal States, 617 F.2d at 861 (“conclusory assertions of privilege will not suffice to carry” the agency’s burden). Nor is the court able to assess whether these documents may have been adopted after-the-fact as expressing the government’s position on the issues they address. See id. at 867. Moreover, the conclusory nature of OLC’s segregability determination prevents the court from conducting a meaningful review of the withholdings in that regard. See Schiller, 964 F.2d at 1209; ACLU, 429 F. Supp. 2d at 187–88. While the court is certainly sensitive to the government’s need to protect classified information and its deliberative processes, essentially declaring “because we say so” is an inadequate method for invoking Exemption 5.10
The court also notes that it sees no reason whatsoever to sanction OLC’s withholding of the numbers of documents and pages falling within this category. The notion that the threat that lawyers at OLC will be inhibited in the free exchange of recommendations, advice and analysis if
10 OLC’s invocation of Exemptions 1 and 3 fares no better. Again, the court lacks the information necessary to conduct even the most deferential review of the documents in question and their connection to classified information. See Schiller, 964 F.2d at 1209; ACLU, 429 F. Supp. 2d at 187–88.
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they knew that the number of pages they use to express themselves could be disclosed to the public is implausible, and DOJ’s assertion that revealing the volume of final memoranda in OLC’s possession related to TSP and similar activities will somehow reveal the actual scope and/or the workings of the government’s classified surveillance activities has no foundation in the record. The court is open to being persuaded in this regard, but the current submissions are insufficient.
5. Briefing Materials And Talking Points OLC has also withheld, pursuant to Exemption 5, records it identifies as “briefing materials” and “talking points” relevant to plaintiffs’ requests. Here, while the court is in a slightly better position to assess OLC’s claims that these documents are predecisional, it still lacks the information necessary to determine whether these materials have been relied upon or adopted as official positions after their preparation. Indeed, the likelihood of such adoption is particularly high in the case of “talking points,” and the distinction between such records and “briefing materials” is, at best, slim.11 6. OLC 95, 153–99 Finally, OLC has withheld documents designated in its Vaughn index as OLC 95 and OLC 153–99. The court cannot find reference to these documents anywhere in DOJ’s
11 The court grants summary judgment regarding the withholding of OLC 117/FBI 18, a letter written by Senator J.D. Rockefeller seeking information regarding operational details of TSP. Plaintiffs do not appear to object to the withholding of this document, and it is exempt, in any event.
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submissions outside of the index itself and will therefore require further detailed explanation regarding them.12 B. ODAG
Apparently acting on behalf of OAG, ODAG has withheld five categories of documents: (1) ODAG 36, (2) ODAG 59, and (3) ODAG 64, which constitute classified filings, drafts of filings, and internal deliberative exchanges and attorney notes considering such filings made in federal courts when criminal defendants have sought information regarding whether they are or were targets of NSA surveillance; (4) ODAG 39, which is a draft document for which summary judgment is appropriate; and (5) ODAG 37, a memorandum described in classified portions of the Declaration of J. Patrick Rowan. Def.’s Ex. G ¶¶ 24–26.
As to ODAG 36, 59, and 64, the court again finds itself in the position of being certain that some documents and portions of documents within a category of documents are exempt from disclosure but also lacking sufficient information to determine what the universe of documents within that category actually is, much less which portions of the documents are exempt and which are not. ODAG informs the court that some documents within these three categories are classified filings in cases wherein criminal defendants have requested information regarding NSA surveillance of their activities. Because these documents are justifiably classified, Rowan Decl. ¶ 17, they are exempt. But these filings are not identified separately from the other documents in the categories labeled ODAG 36, 59, and 64. Nor is the court empowered to
12 It is possible that the error in this regard is the court’s. If that is the case, DOJ may simply refer the court to the relevant sections of its initial submissions.
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determine which documents within these categories are notes, drafts, and the like protected by Exemption 5.
In his declaration, Rowan states that “[e]ach of the documents in these categories of records was created in response to a request from a particular defendant seeking information as to whether he was the subject of surveillance under the TSP.” Ibid. (emphasis added). This statement does not inform the court what each document in the category is, but only that each document is related to a request from a criminal defendant. It stands to reason that the vast majority, if not all, of the relevant documents are either (a) exempt classified filings or (b) deliberative drafts and exchanges regarding these filings, which are both classified and protected by Exemption 5. But the court cannot conclude that this is the case without further clarification from ODAG. See id. ¶ 21 (stating that “to the extent these documents are drafts or inter- or intraagency deliberative exchanges . . . they cannot be disclosed” (emphasis added)), ¶ 22 (stating that “many of the responsive documents contain information that must be withheld to prevent an unwarranted invasion of personal privacy” (emphasis added)), ¶ 23 (stating that “[t]o the extent the documents identify particular law enforcement agents or others . . . investigating . . . terrorism,” and “to the extent that information of this type appears in the responsive documents it is also withheld under FOIA Exemption Seven” (emphasis added)). The court will deny DOJ’s motion for summary judgment in this regard and require the submission of a complete, document-by-document Vaughn index from ODAG. See Schiller, 964 F.2d at 1209; ACLU v. FBI, 429 F. Supp. 2d at 187–88. The court also will require further clarification regarding ODAG 37, for which the court likewise lacks a basis for upholding ODAG’s exemption claims.
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C. OIPR OIPR has withheld a variety of records, many of which are only described in classified
sections of a declaration from James A. Baker, Counsel for OIPR. See Def.’s Ex. C. For the reasons set forth therein, the court grants summary judgment regarding the documents identified in paragraphs 24–32 and as to OIPR 7. The court also grants summary judgment as to the documents identified in paragraphs 22 and 34, all of which are drafts and are not contested by EPIC.13
The court denies summary judgment as to OIPR 3, 26, 39, 84, and 96. The court (again without denying the possibility that the court is in error) cannot find reference to these documents anywhere in DOJ’s submissions outside of the index itself and will therefore require further detailed explanation regarding them. Similarly, the court will require OIPR to advise the court regarding the status of its ongoing consultations regarding OIPR 4 and 64. See id. ¶ 17 n.2. D. FBI
FBI has withheld an unspecified number of documents which fall within a series of categories identified in the classified declaration of David M. Hardy, Section Chief of the Record/Information Dissemination Section of FBI’s Records Management Division. The justifications for withholding these documents are wholly inadequate. First, FBI has failed to produce a Vaughn index. Second, though FBI has informed the court that certain categories of documents have been withheld, FBI has failed to materially inform the court as to what the
13 One document, OIPR 73, is described as a draft in the Baker declaration but is not listed as a draft in the Vaughn index (there, it is described as “talking points”). Clarification from defendants is warranted and the court denies summary judgment as to this document (the classified discussion in the Baker Declaration notwithstanding).
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documents in these categories are, how many documents are at issue, and which portions of documents within these categories are exempt and which are not. Instead, FBI relies on vague, broad, wholesale claims of exempt status that fail to assist the court in assessing FBI’s withholding determinations. See Schiller, 964 F.2d at 1209; ACLU, 429 F. Supp. 2d at 187–88. The court is willing to defer, for example, to reasonably justified claims that information in the documents at issue is classified and/or protected from disclosure by Exemption 3, but FBI has not informed the court what, precisely, the nature of the withheld information is and what the documents are in which that information appears. Lacking such information, the court cannot conduct even the most deferential review. See ACLU, 429 F. Supp. 2d at 187–88; Am. Way Found., 462 F. Supp. 2d at 28; Krikorian, 984 F.2d at 465–66. Similar information gaps frustrate the court’s review of FBI’s determinations that other documents are exempt pursuant to Exemption 5. And the failure to provide meaningful representations regarding segregability as to documents withheld pursuant to Exemptions 2, 6, 7(A), 7(C), 7(d) and 7(E) — for which redaction, rather than withholding, is typically the appropriate approach — is particularly glaring. The court will require DOJ to submit a detailed Vaughn index on FBI’s behalf and further justify FBI’s withholding and segregability determinations as to the vast majority of responsive documents in its custody.14 E. NSA
Unsurprisingly, the declarations submitted by officials from NSA fail to identify at any level the documents withheld. Instead, the declarations articulate NSA’s view that in every
14 Summary judgment is warranted, however, as to the documents specifically identified in paragraphs 55–57, 111, and 148 of the Hardy Declaration.
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instance where the information requested by plaintiffs (and records containing that information) involves NSA equities, that information is exempt from disclosure. The court concurs with these determinations as to (1) information concerning operational details of TSP and (2) NSA TSPrelated policies, procedures, checklists, and audits, but will deny summary judgment regarding the legal memoranda, opinions and reviews pertaining to TSP discussed in paragraph 29 of the declaration filed by Joseph B., Deputy Chief of Staff for Operations and Support for the Signals Intelligence Directorate of NSA. As with similar documents withheld by OLC, the NSA declarations leave the court with no way to assess the appropriateness of the withholding decision as to records within this category. In particular, the court cannot adequately assess whether the documents are protected by the claimed statutes — that is, “that the withheld material satisfies the criteria for exemption,” Aftergood v. CIA, 355 F. Supp. 2d 557, 561 (D.D.C. 2005); Krikorian, 984 F.2d at 465–66 — or whether the NSA’s segregability determination is supported, see Schiller, 964 F.2d at 1209; ACLU v. FBI, 429 F. Supp. 2d at 187–88; Assassination Archives, 334 F.3d at 57–58 & n.3 (addressing segregability in Exemption 3 context). Accordingly, the court will require further submissions from NSA regarding these documents.
III. CONCLUSION For the foregoing reasons, summary judgment is warranted regarding some of the documents withheld by the government.15 As to the remainder, the government must submit to
15 As DOJ’s submissions make apparent, there is significant overlap among the various documents at issue in this litigation. It may be the case that the court has granted summary judgment as to a particular document and, inadvertently, has also denied summary judgment as to the same document elsewhere in this memorandum. If that is the case, DOJ shall inform the court of that fact in its further declarations.
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the court a detailed, document-by-document Vaughn index regarding these documents, along

with further, significantly more-detailed declarations justifying the various departments’ withholding decisions. Accordingly, and as set forth herein, it is this 5th day of September, 2007,

hereby

ORDERED that DOJ’s motion for summary judgment [#29] is GRANTED in part,

DENIED in part, and HELD IN ABEYANCE in part; and it is further

ORDERED that EPIC’s motion for in camera review of the disputed records [#34] is

DENIED without prejudice; and it is further

ORDERED that on or before October 12, 2007, DOJ shall file a second motion for

summary judgment, with a document index and declarations, as specified in Vaughn v. Rosen,

484 F.2d 820, further stating its justification for the withholding of all remaining records responsive to plaintiffs’ FOIA requests.16 Thereafter, briefing shall proceed as follows:

Plaintiffs’ opposition/second motion for in camera review October 26, 2007

Defendant’s opposition/reply

November 9, 2007

Plaintiffs’ reply

November 16, 2007

SO ORDERED.

Henry H. Kennedy, Jr. United States District Judge

16 If these submissions are unsatisfactory, the court will order in camera review. 24

 
 Case 1:06-cv-00214-RCL Document 41 Filed 10/31/08 Page 1 of 27

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,
Plaintiff, v.
DEPARTMENT OF JUSTICE,
Defendant.

Civil Action 06-00096 (HHK)

AMERICAN CIVIL LIBERTIES UNION, et al.,
Plaintiffs, v.
DEPARTMENT OF JUSTICE,
Defendant.

Civil Action 06-00214 (HHK)

MEMORANDUM OPINION AND ORDER In these consolidated actions, plaintiffs Electronic Privacy Information Center, American Civil Liberties Union, American Civil Liberties Union Foundation, and the National Security Archive Fund, Inc. (collectively “EPIC”) bring claims against the Department of Justice (“DOJ”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking the release of agency records regarding the former policy of the Bush Administration to conduct, under certain circumstances, surveillance of domestic communications without the prior authorization of the Foreign Intelligence Surveillance Court (“FISA Court”).1 DOJ previously moved for summary
1 “FISA” refers to the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq. In its submissions, DOJ has identified the surveillance activities at issue to be the so-called “Terrorism Surveillance Program,” or “TSP.” First Bradbury Decl. ¶¶ 18–20.

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judgment and this court issued a Memorandum Opinion and Order on September 5, 2007, EPIC v. Dep’t of Justice, 511 F. Supp. 2d 56 (D.D.C. 2007) (“EPIC 1"), that granted in part and denied in part DOJ’s motion.
Before the court are DOJ’s renewed motion for summary judgment [# 50]2 and EPIC’s renewed motion for in camera review of withheld records [# 57]. Upon consideration of the motions, the oppositions thereto, and the record of this case, the court concludes that DOJ’s renewed motion for summary judgment must be granted in part and denied in part, and that EPIC’s renewed motion for in camera review must be granted in part and denied in part.
I. BACKGROUND DOJ has moved for summary judgment with respect to all documents that remain at issue in this litigation after EPIC 1. EPIC challenges the withholding of thirty of these remaining documents. Pls.’ Opp’n 8 n.7; 31 n. 28.3 EPIC does not challenge the withholding of any other documents. Accordingly, the court grants summary judgment to DOJ as to all documents other than the thirty documents specifically challenged by EPIC.
2 This memorandum opinion also addresses the supplemental motion for summary judgment filed on behalf of the FBI by DOJ [# 54].
3 These documents are: OLC 51, OLC 63/FBI 4, OLC 114, OLC 115/ODAG 3, OIPR 139, OIPR 140, FBI 7, OLC 16/ODAG 38, OLC 54/ODAG 1/OIPR 28, OLC 59/OIPR 29, OLC 62/ODAG 52, OLC 85, OLC 129/ODAG 6, OLC 131/ODAG 2/OIPR 37/FBI 51, OLC 132/ODAG 5, OLC 146, OLC 113/FBI 42, ODAG 42, FBI 301, FBI 302, FBI 303, FBI 8, FBI 173, FBI 175, FBI 176, FBI 178, FBI 194, FBI 193, FBI 195, and FBI 310.
EPIC does not challenge the withholding of any other documents but, nevertheless, asserts that this court should order in camera review of all documents that remain at issue after this court’s EPIC 1 opinion. This is the only time EPIC mentions the other documents, however.
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II. ANALYSIS
DOJ contends that the documents at issue are properly withheld pursuant to Exemptions 1, 3, and/or 5 of FOIA,4 and that most of the withheld documents contain classified information.5
EPIC asserts that DOJ’s justifications for withholding are either improper or insufficiently
justified and seeks an order for in camera review of the documents so that the court is able to
verify whether DOJ has appropriately withheld the information in question. EPIC also contends
that DOJ has failed to adequately explain why information not exempt from disclosure cannot be segregated from exempt information and produced.6 Eighteen of the thirty documents have been withheld by OLC.7 The remaining twelve documents have been withheld by the FBI. The court
discusses these two categories of documents in turn.
4 EPIC 1 provides an explanation of FOIA and Exemptions 1, 3, and 5. EPIC 1, 511 F. Supp. 2d at 56, 64-68.
5 DOJ also asserts that this court should grant it summary judgment with respect to some documents because the Southern District of New York found that these documents were properly withheld in another FOIA action. While the rationale for the decision of the Southern District of New York may be persuasive, this court has an independent obligation to adjudicate the merits of this litigation.
6 DOJ’s justifications for withholding the thirty documents at issue are set forth in two declarations: one submitted by Steven Bradbury, the Principal Deputy Assistant Attorney General for the Office of Legal Counsel (“OLC”) and one submitted by David M. Hardy, the Section Chief of the Record/Information Dissemination Section, Records Management Division of the FBI. Bradbury’s declaration addresses documents withheld by OLC and Hardy’s declaration addresses documents withheld by the FBI.
7 Some of these documents originated in other components of the Department of Justice, such as the Office of Intelligence Policy and Review (“OIPR”). OLC has either been asked to respond on behalf of these components or has “independent equities” in these documents. First Bradbury Decl. ¶ 27. Accordingly, the court collectively refers to all documents described in Bradbury’s declarations as documents withheld by OLC.
3

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A. OLC Documents The eighteen documents withheld by OLC fall into one of two categories: (1) documents
related to the President’s reauthorization of the TSP and (2) documents related to OLC’s legal opinions. EPIC challenges the application of Exemptions 1, 3, and 5 to these documents. Below, the court addresses these categories separately with respect to the issue of whether Exemptions 1 and 3 apply to the documents. The court addresses these categories together with respect to the issue of whether Exemption 5 applies.
1. Exemptions 1 and 3 as Applied to Documents that Involve the President’s Reauthorization of the TSP Seven of the documents withheld by OLC pursuant to Exemptions 1 and 3 relate to the President’s reauthorization of the TSP.8 Because the government has publicly acknowledged the existence of the TSP and the program is no longer authorized or in use, EPIC asserts that this court should scrutinize especially closely DOJ’s contention that releasing these documents would harm national security. EPIC also contends that DOJ has failed to justify its assertion that these documents must be withheld pursuant to Exemptions 1 and 3. EPIC asserts further that, to the extent DOJ has provided any justification for withholding these documents, these justifications are almost entirely redacted from DOJ’s public submissions and, as a result, it cannot respond in a meaningful way to DOJ’s arguments in support of its position that these documents are exempt from disclosure. EPIC lastly asserts that DOJ’s segregability analysis is deficient.
8 Six of these seven documents relate to OLC’s involvement in the reauthorization process. These six documents are: OLC 51, OLC 63/FBI 4, OLC 114, OLC 115/ODAG 3, OIPR 139, and OIPR 140. A seventh document – FBI 7 – contains advice from the Attorney General to the Director of the FBI regarding the legality of certain intelligence collection activities.
4

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DOJ rejoins that this court should defer to its determination that releasing these documents would harm national security. Even though some information about the TSP may have become public, DOJ asserts that release of further information would harm the United States’ intelligence gathering process. DOJ argues that it has extensively justified, in the numerous declarations filed with this court, its determination that these seven documents cannot be disclosed without compromising the United States’ foreign intelligence collection activities.
With respect to EPIC’s complaint that it is unable to meaningfully challenge DOJ’s justifications for withholding disclosure of the documents because portions of the declarations setting forth the justifications have been classified and are available solely for this court’s in camera review, DOJ points out that the D.C. Circuit has long recognized that such measures are appropriate in cases in which national security is implicated. Lastly, DOJ asserts that the second Bradbury declaration adequately analyzes the segregability of the documents and has shown that there is no non-exempt information that is segregable from exempt information.
This court is not persuaded by EPIC’s argument that because information about TSP has become publicly available there is reason to be skeptical of DOJ’s assertion that releasing the withheld documents would harm national security. To the contrary, just because some information about the TSP has become public, it does not follow that releasing the documents poses any less of a threat to national security. As stated in Bradbury’s first declaration, “Although the existence of the TSP is now publicly acknowledged, and some facts about the Program have been disclosed, the President has made clear that sensitive information about the nature, scope, operation, and effectiveness of the Program remains classified and cannot be disclosed without causing exceptionally grave harm to U.S. national security.” First Bradbury Decl. ¶ 20.
5

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Furthermore, it is “well-established that the judiciary owes some measure of deference to the executive in cases implicating national security, a uniquely executive purview.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 926-27 (D.C. Cir. 2003). Thus, the court will not second-guess a determination that disclosure of documents would harm national security so long as the agency’s declarations provide sufficient detail that the material “withheld is logically within the domain of the exemption claimed,” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (quoting King v. U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)), and “are neither controverted by contrary record evidence nor impugned by bad faith on the part of the agency.” King, 830 F.2d at 217; see also People for the Am. Way Found. v. NSA, 462 F. Supp. 2d 21, 33-34 (D.D.C. 2006).
In EPIC 1, this court found that DOJ’s public submissions, in conjunction with its classified submissions, make clear that these documents are properly classified and exempt from production under FOIA.9 EPIC 1, 511 F. Supp. 2d at 69 (noting that these “records . . . undoubtedly contain classified information”). And there is neither contradictory record evidence nor evidence of bad faith on the part of OLC in withholding documents out of concern for national security. Accordingly, the court defers to DOJ’s determination that release of classified information in these seven documents would threaten national security.
EPIC asserts that the publicly available (i.e. redacted) versions of the Bradbury declarations lack detailed justifications as to why these seven documents are subject to Exemptions 1 and 3. EPIC is correct that DOJ’s public submissions, in and of themselves, do
9 Here, as elsewhere in this memorandum, sensitivity to maintaining the secrecy of classified matters and information requires the court to limit the breadth and depth of its discussion.
6

Case 1:06-cv-00214-RCL Document 41 Filed 10/31/08 Page 7 of 27
not contain adequate justifications as to why these seven documents are appropriately withheld pursuant to these exemptions. DOJ, however, has submitted far more detailed justifications in the classified portions of its submissions, which this court has reviewed in camera. The D.C. Circuit has long recognized that in camera review of declarations and documents is proper in cases implicating national security:
We recognize that a fuller public record could enhance the adversary process; but it could also reveal sensitive information. This would violate Exemption 1, for its basic purpose is to ensure that the FOIA will not require disclosure of any such sensitive material unless judicial scrutiny finds it warranted. The proper procedure for a district court, then, is to accept sensitive affidavits in camera. Hayden v. NSA, 608 F.2d 1381, 1385 (D.C. Cir. 1979). EPIC is understandably frustrated at its inability to review DOJ’s submissions in their entirety due to their classified status. However, this court is well aware of, and does not take lightly, its obligation to ensure that DOJ has sufficiently justified withholding these seven documents pursuant to Exemptions 1 and 3. Having reviewed the Bradbury declarations, including the redacted portions of the declarations, the court concludes that the seven documents are properly withheld from disclosure pursuant to Exemptions 1 and 3. EPIC lastly argues that DOJ’s segregability analysis, with respect to these seven documents, is insufficient. In EPIC 1, this court recited the familiar requirement that nonexempt factual information contained in an otherwise protected record must be disclosed unless it is “inextricably intertwined” or otherwise cannot be segregated from any deliberative material in the document. EPIC 1, 511 F. Supp. 2d at 64. This court concluded that it was unable to ascertain whether it was appropriate to authorize the withholding of certain documents in their entirety because DOJ’s segregability determination was “too vague and general to be useful.” Id. at 69.
7

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The second Bradbury declaration provides additional descriptive information with respect to the seven withheld documents. For example, the first Bradbury declaration does not specifically describe OLC 51. In contrast, the second Bradbury declaration describes OLC 51 as a “one-page memorandum, dated August 9, 2004, from the Acting Assistant Attorney General for OLC to the Deputy Attorney General entitled ‘Proposed Memorandum,’ which contains OLC’s advice concerning a decision to be made by the Deputy Attorney General regarding an intelligence collection activity.” Second Bradbury Decl. ¶ 26. Similarly, the court required more information to be provided specifically with respect to FBI 7. The court found that the first Bradbury declaration fails to “substantiate the determination to withhold the document in full. Specifically, DOJ’s explanation fails to justify the department’s determination that the information therein cannot be segregated from nonexempt information.” The second Bradbury declaration at ¶ 51 provides a fuller description of FBI 7. It states that “FBI 7 is a one-page memorandum, dated October 20, 2001, from the Attorney General to the FBI, advising the Director that certain intelligence collection activities are legal and have been appropriately authorized. The memorandum is classified TOP SECRET and is withheld under FOIA Exemptions One and Three.” Second Bradbury Decl. ¶ 51.
While the further descriptions available for public viewing with respect to OLC 51 and FBI 7 in the second Bradbury declaration do not show why any non-classified information in these memoranda cannot be segregated from the classified information and produced, the descriptions and explanations contained in the redacted paragraphs of the second Bradbury declaration demonstrate that there is no segregable information in these document that should be disclosed. Consequently, the court sustains DOJ’s position as to segregability with respect to OLC 51 and FBI 7. Moreover, the same analysis and determination is made with respect to OLC
8

Case 1:06-cv-00214-RCL Document 41 Filed 10/31/08 Page 9 of 27
63/FB1 4, OLC 114, OIPR 139, OLC 115/ODAG 3, and OIPR 140. Consequently, DOJ’s motion for summary judgment is granted with respect to these records.
2. Exemptions 1 and 3 as Applied to Documents that Contain Legal Opinions of OLC Pursuant to Exemptions 1 and 3, OLC has withheld ten documents that contain legal opinions of OLC.10 In its prior memorandum opinion, this court found that it “lacks the information necessary to conduct even the most deferential review of the documents in question and their connection to classified information.” EPIC 1, 511 F. Supp. 2d at 71 n.10. For example, the court noted that DOJ had failed to “sufficiently identify the universe of documents within this category, apart from noting that they are ‘final memoranda’ related to TSP.” Id. at 70. The second Bradbury declaration addresses this court’s heretofore inability to identify the universe of documents at issue by describing each of the eleven documents in this category with sufficient detail.11 Second Bradbury Decl. ¶¶ 83, 90, 98. EPIC now challenges OLC’s determination that these documents may be withheld pursuant to Exemptions 1 and 3. EPIC’s arguments mirror those raised with respect to documents related to the President’s reauthorization of the TSP. That is, EPIC contends that: (1) this court must closely scrutinize DOJ’s assertion that releasing these documents would harm national security; (2) DOJ has not adequately justified withholding these documents; and (3) DOJ has not performed an adequate segregability analysis.
10 These ten documents are: OLC 16/ODAG 38, OLC 54/ODAG 1/OIPR 28, OLC 59/OIPR 29, OLC 62/ODAG 52, OLC 85, OLC 129/ODAG 6, OLC 131/ODAG 2/OIPR 37/FBI 51, OLC 132/ODAG 5, OLC 113/FBI 42, and ODAG 42. OLC 146 is the only document at issue here that contains OLC’s legal opinions but is not withheld pursuant to Exemption 1 or 3.
11 Merely because the court can identify the universe of documents does not mean DOJ has provided enough information about the documents to allow the court to ensure that they are appropriately withheld pursuant to various exemptions.
9

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For the reasons discussed supra, EPIC’s first argument is without merit. That is, absent contrary evidence or bad faith – neither of which exists in this case – this court will not secondguess DOJ’s determination that release of the classified information in these documents would harm national security.
EPIC’s second argument also cannot be sustained. While there is some force to EPIC’s argument that the publicly available (i.e. redacted) versions of the Bradbury declarations do not contain enough information to justify the Exemption 1 and 3 withholdings, the classified portions of the second Bradbury declaration, specifically ¶ 84, provide such information.
EPIC’s argument with respect to the issue of segregablity has merit, however. DOJ’s segregability analysis, found in ¶ 88 of the second Bradbury declaration, is deficient. The declaration states, “I have specifically reviewed each of the documents identified in paragraph 83 and have determined that all portions of these documents contain either classified information or deliberative and privileged legal advice and analysis of OLC.”.12 “[A] blanket declaration that all facts are so intertwined to prevent disclosure under the FOIA does not constitute a sufficient explanation of non-segregability.” Wilderness Soc. v. U.S. Dep’t of Interior, 344 F. Supp. 2d 1, 19 (D.D.C. 2004); see also Mead Data Cent. Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977) (noting that an agency cannot provide conclusory statements regarding segregability). Moreover, the court is unable to make a segregability determination from its review of the descriptions of these documents contained in the classified portions of the second Brabury declaration. Consequently, these documents shall be presented for this court’s in camera review.
12 This statement in ¶ 88 of the second Bradbury declaration does not apply to two of the eleven documents: OLC 113/FBI 42 and ODAG 42. Therefore, DOJ has provided no segregability analysis with respect to these documents.
10

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3. Exemption 5 DOJ asserts that all of the documents withheld by OLC, except for FBI 7 and OLC 113/FBI 42, are properly withheld pursuant to Exemption 5. DOJ contends that these documents are subject to: (1) the deliberative process privilege; (2) the attorney-client privilege; and (3) the presidential communications privilege.13 EPIC, predictably, asserts that Exemption 5 does not apply to the documents at issue. Below, the court addresses each of these privileges in turn.
i. Deliberative Process Privilege DOJ contends that all of the documents withheld by OLC pursuant to Exemption 5 are subject to the deliberative process privilege14 because they were created as part of an ongoing decision-making process. DOJ asserts that they contain advice and recommendations to others, such as the Attorney General (or his designee), the head of another Executive Branch agency, or the President, regarding intelligence gathering activities. Second Bradbury Decl. ¶¶ 13-24, 39. EPIC rejoins that these documents are not subject to the deliberative process privilege. First, EPIC asserts that these documents contain OLC’s conclusive interpretations of law.15 EPIC contends that an agency’s conclusive interpretations of law can never be withheld pursuant to the deliberative process privilege because FOIA mandates the disclosure of an agency’s “final
13 DOJ does not contend that all of these privileges apply to all of these documents. The court clarifies, in the text infra, which exemptions are claimed in connection with the documents.
14 It is unclear whether the deliberative process privilege is asserted with respect to ODAG 42.
15 EPIC’s assertion that all of these documents originate with OLC does not appear to be correct. For example, DOJ asserts that OLC 63/FBI 4 is properly withheld pursuant to the deliberative process privilege, and the second Bradbury declaration describes this document as a memorandum “from the Acting Attorney General to the Counsel to the President.” Second Bradbury Decl. ¶ 29.
11

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opinions.” Second, EPIC argues that DOJ has failed to specifically identify the deliberative processes at issue in these documents, as well as the role of these documents in these processes. Third, EPIC asserts that it is likely that DOJ or the President relied on these documents in adopting their official positions and policies, and the deliberative process privilege does not apply to legal opinions that are incorporated into official positions and policies. Only EPIC’s second argument is well-taken.
As EPIC notes, the deliberative process privilege does not extend to an agency’s “final opinions.” 5 U.S.C. § 552(a)(2)(A) (requiring agencies to make available for public inspection “final opinions”); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153-54 (1975) (recognizing that FOIA does not extend to “final opinions”). For purposes of FOIA, a “final opinion” refers to “final statements of agency policy,” Tax Analysts v. IRS, 294 F.3d 71, 80 (D.C. Cir. 2002), as well as statements that “explain agency action already taken or an agency decision already made” and that “constitute final dispositions of matters by an agency.” Sears, 421 U.S. at 153-54 (internal quotations omitted). EPIC asserts that an agency’s conclusive interpretations of law are “final opinions” for purposes of FOIA and cannot be withheld pursuant to the deliberative process privilege. EPIC contends that the documents at issue contain OLC’s conclusive interpretations of law and thus cannot be withheld pursuant to the deliberative process privilege.
EPIC’s position proves too much. The D.C. Circuit has long recognized that legal advice is an integral part of the decision-making process and is protected by the deliberative process privilege. Brinton v. Dep’t of State, 636 F.2d 600, 604 (D.C. Cir. 1980) (“[t]here can be no
12

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doubt that . . . legal advice, given in the form of an intra-agency memoranda16 prior to an agency decision on the issues involved, fits exactly within the deliberative process rationale . . . .”); Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980) (stating that a “series of memoranda to the Assistant Secretary of the Army from the General Counsel . . . recommending legal strategy” is a “classic case of the deliberative process at work”) (internal quotations omitted). OLC’s governing regulations provide that OLC serves numerous functions, which include rendering opinions to the Attorney General and assisting the Attorney General in the performance of his functions as legal adviser to the President. 28 C.F.R. § 0.25. Thus, OLC is empowered to provide legal advice to the Attorney General and the President. If OLC provides legal advice as part of a decision-making process, this legal advice is protected under the deliberative process privilege.
EPIC contends that because OLC’s interpretations of law are binding on the executive branch, OLC’s interpretations represent the official and final opinions of the executive branch. Pls.’ Opp’n 18 (citing Tenaska Wash. Partners II v. United States, 34 Fed. Cl. 434, 439 (Fed. Cl. 1995).17 Similarly, EPIC asserts that it is irrelevant whether others in the executive branch may later make a different decision after considering OLC’s advice because OLC speaks for DOJ and thus OLC’s legal opinions represent the “final opinions” of DOJ.
16 This rationale applies with equal force to inter-agency memoranda. 5 U.S.C. § 552(b)(5) (exempting from disclosure “inter-agency or intra-agency memorandums . . . which would not be available by law to a party other than an agency in litigation with the agency”) (emphasis added).
17 EPIC asserts that OLC’s legal opinions are authoritative and binding throughout the executive branch and supports this proposition by reference to law review articles and congressional testimony. The court will assume for the sake of argument, without deciding, that this is so.
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EPIC’s argument is utterly without merit. It is nonsensical to state that legal opinions can never be protected by the deliberative process privilege because of their authoritative nature. If legal opinions are disclosable simply because they are authoritative or conclusive, this “would mean that virtually all legal advice OLC provides to the executive branch would be subject to disclosure.” CREW v. Office of Admin., 249 F.R.D. 1, 6 (D.D.C. 2008) (internal quotations omitted). This would significantly chill the ability of the executive branch to obtain legal advice.18 Rather, authoritative legal opinions that are promulgated as part of a larger decisionmaking process may well be protected by the deliberative process privilege.
EPIC’s position that all conclusive legal opinions must be disclosed is based on a misreading of two D.C. Circuit cases – Tax Analysts, 294 F.3d 71 (Tax Analysts II) and Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997) (Tax Analysts I). Contrary to EPIC’s assertion, neither case stands for the unilateral proposition that an agency’s conclusive interpretations of law are always “final opinions” for purposes of FOIA. These cases instead stand for the more limited proposition that there are some instances in which agency counsel’s legal opinions are not protected by the deliberative process privilege because they are not issued as part of a decision-making process. Tax Analysts II, 117 F.3d at 617; Tax Analysts I, 294 F.3d at 81.
For example, in Tax Analysts I, the court found that legal memoranda issued by IRS’s agency counsel were not protected by the privilege because they were issued to field personnel to “develop a body of coherent, consistent interpretations of the federal tax laws nationwide.” 117
18 Furthermore, there are several cases that have stated that OLC memoranda may properly be withheld from disclosure under the deliberative process privilege. CREW, 249 F.R.D. at 6 (citing Southam News v. U.S. INS, 674 F. Supp. 881, 887 (D.D.C. 2008); Morrison v. U.S. Dep’t of Justice, 1988 WL 47662 (D.D.C. Apr. 29, 1988)).
14

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F.3d at 617. And in Tax Analysts II, the court found that legal memoranda issued by IRS’s agency counsel were not protected by the privilege because they were issued “horizontally” among agency components. 294 F.3d at 81. The court noted that legal memoranda that were transmitted upwards, such as to the Commissioner of the IRS, were quite possibly part of a decision-making process and thus subject to the deliberative process privilege. Id.
Tax Analysts I and Tax Analysts II reflect the D.C. Circuit’s recognition that whether a document is subject to the deliberative process privilege is “dependent upon the individual document and the role it plays in the administrative process.” Coastal States Gas Corp., 617 F.2d at 867; see also Sears, 421 U.S. at 138 (“[C]rucial to the decision of this case is an understanding of the function of the documents in issue in the context of the administrative process which generated them.”). As part of this analysis, the court looks to the decision-making authority vested in the office or person issuing the disputed document; the function and significance of the document in the agency decision-making process; and whether the document “flow[s] from superiors to subordinates, or vice versa.” Taxation with Representation Fund v. IRS, 646 F.2d 666, 681 (D.C. Cir. 1981). In Coastal States Gas Corp., the D.C. Circuit further elaborated that documents that contain “advice to a superior,” “suggestions or recommendations as to what agency policy should be,” “discuss the wisdom or merits of a particular agency policy,” or “recommend new agency policy,” would fall under the deliberative process privilege, but that “simply straightforward explanations of agency regulations in specific factual situations” would not be covered by the deliberative process privilege. 617 F.2d at 868-69.
The descriptions of the documents withheld by OLC imply that it is likely that most if not all were properly withheld pursuant to the deliberative process privilege. For example, OLC
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63/FBI 4 contains “recommendations and legal advice” that were transmitted from DOJ to the
President and his advisors. Second Bradbury Decl. ¶ 37. Because the President is superior in the
executive branch’s hierarchy to OLC, this communication was from a subordinate to a superior
official. And recommendations and advice with respect to a final decision that must be made by the President would clearly fall within the deliberative process privilege.19 The court cannot
conclude that the deliberative process applies to these documents, however. Neither of the
Bradbury declarations provide sufficient information as to the subject or content of these
recommendations or legal advice. Neither does the Bradbury declaration describe the decisions
to which these recommendations relate.
It is well established that, to claim the deliberative process privilege, an agency must
identify “the role of a contested document in a specific deliberative process . . . in order to show
by specific and detailed proof that disclosure would defeat, rather than further, the purposes of
the FOIA.” Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. 2d 252, 259 (D.D.C. 2004)
19 Accordingly, EPIC is incorrect in asserting that “the fact that the President or another executive branch official may later make a policy decision after considering the OLC’s legal conclusion is irrelevant because OLC speaks for the Justice Department.” Pls.’ Opp’n 20 (internal quotations omitted). This argument ignores the D.C. Circuit’s mandate that the deliberative process privilege requires a fact-specific analysis. Coastal States Gas Corp., 617 F.2d at 867. Even if OLC “speaks for [DOJ],” Pls.’ Opp’n 20, DOJ may have provided this legal conclusion as part of a larger decision-making process that is subject to the deliberative process privilege. As noted in the text supra, a legal conclusion that is part of a larger decision-making process may well be subject to the deliberative process privilege.
The fact that the “ultimate” decision may have been made by someone outside of the Justice Department is not determinative. “Congress plainly intended to permit one agency possessing decisional authority to obtain written recommendations and advice from a separate agency not possessing such decisional authority without requiring that the advice be any more disclosable than similar advice received from within the agency.” Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 188 (1975). Furthermore, as noted supra, the deliberative process privilege applies to inter-agency memoranda.
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Case 1:06-cv-00214-RCL Document 41 Filed 10/31/08 Page 17 of 27
(internal quotations omitted). The agency must also demonstrate that the documents at issue are pre-decisional. Id. As EPIC correctly argues, DOJ has failed to do so. Both the first and second Bradbury declarations contain extraordinarily vague descriptions of the deliberative processes at issue.
For example, the second Bradbury declaration states that OIPR 139 contains “legal advice concerning certain decisions relating to classified foreign intelligence activities” that was relayed to the Deputy Attorney General from the Assistant Attorney General for OLC. Second Bradbury Decl. ¶ 32. This declaration also states that OLC 54/ODAG 1/OIPR 28 contains a “legal review of classified foreign intelligence activity” that was sent from the Assistant Attorney General to the Attorney General, id. at ¶ 83(b), and that yet another one – OLC 59/OIPR 29 – involves a “a request for OLC views regarding the applicability of certain statutory requirements.” Id. at ¶ 83(c). The second Bradbury declaration fails to describe the “classified foreign intelligence activity,” or the “statutory requirements” at issue in these documents. The declaration also fails to describe with sufficient detail the decision-making process for which these documents were created.
EPIC lastly contends that the deliberative process privilege does not apply to any of these documents because they most likely contain legal opinions that were adopted by the Attorney General or incorporated into DOJ’s final policies. As EPIC notes, if OLC’s legal opinions are “adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public,” then OLC legal opinions are no longer considered deliberative or predecisional. CREW, 249 F.R.D. at 7 (quoting Coastal States, 617 F.2d at 866). EPIC provides no evidence to support this assertion other than speculation, however. Such speculation will not
17

Case 1:06-cv-00214-RCL Document 41 Filed 10/31/08 Page 18 of 27
suffice. Nat’l Council of La Raza v. Dep’t of Justice, 411 F.3d 350, 359 (2d Cir. 2005) (stating that “mere speculation will not suffice” and that a court may not infer that an agency is relying on reasoning contained in a subordinate’s report). There “must be evidence that an agency has actually adopted or incorporated by reference the document at issue.” Id.; see also Security Fin. Life Ins. Co. v. Dep’t of Treasury, 2005 WL 839543, at *7 (D.D.C. Apr. 12, 2005) (finding that the government does not carry the burden of proving that documents were not adopted formally or informally). Cf. Common Cause v. IRS, 646 F.2d 656, 660 (D.C. Cir. 1981) (finding that casual allusion to reasons stated in a pre-decisional document does not constitute the necessary “express” adoption); Brinton, 636 F.2d at 605 (declining to find that advisory material was incorporated into final agency policy because there was “no indication that any material was expressly adopted or incorporated by reference.”).
EPIC does note that then-acting Attorney General James Comey testified to Congress that the Department of Justice was unable to certify the TSP program and that “it was largely OLC, the Office of Legal Counsel’s work, that I was relying upon . . . in making my decision” not to certify the TSP program. Def.’s Opp’n to Pls.’ M. for Leave to File Supp. Mem., Ex. B at 24. Comey’s testimony does not reference any specific OLC memoranda, however. Comey only generally references OLC’s advice. Such a general reference does not constitute a waiver of the deliberative process privilege with respect to any OLC memorandum. The deliberative process privilege is waived only if there is an“express” adoption of OLC memoranda. Sears, 421 U.S. at 152 (stating that when an agency “chooses expressly to adopt or incorporate an intra-agency [or inter-agency] memorandum previously covered by Exemption 5 in what would otherwise be a final opinion” then the deliberative process privilege does not apply).
18

Case 1:06-cv-00214-RCL Document 41 Filed 10/31/08 Page 19 of 27
ii. Attorney-Client Privilege OLC next contends that, with the exception of FBI 7 and OLC 113, all documents withheld by OLC are subject to the attorney-client privilege.20 The attorney-client privilege can apply to documents withheld by government agencies – “[i]n the governmental context, the ‘client’ may be the agency and the attorney may be an agency lawyer.” Tax Analysts I, 117 F.3d at 618; see also Brinton, 636 F.2d at 603-04. “The attorney-client privilege protects confidential communications from clients to their attorneys made for the purpose of securing legal advice or services.” Tax Analysts I, 117 F.3d at 618. The “privilege also protects communications from attorneys to their clients if the communications ‘rest on confidential information obtained from the client.’” Id. (quoting In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984)); see also Schlefer v. United States, 702 F.2d 233, 245, 226 (D.C. Cir. 1983) (the privilege “operates when (1) the communication from attorney to client is confidential, and (2) the communication is based on confidential information provided by the client.”). And, “[c]orrelatively, when an attorney conveys to his client facts acquired from other persons or sources, those facts are not privileged.” In re Sealed Case, 737 F.2d at 99 (internal quotations omitted).21 “To allow the contrary rule
20 This court previously stated that, with respect to records related to OLC legal opinions, “while it appears likely that many of these documents are protected under exemption 5 (because they are privileged as deliberative or as attorney-client communications), the court is powerless to reach that conclusion . . . the court has no way to assess [this] claim apart from its naked assertion [in the Bradbury declaration].” EPIC 1, 511 F. Supp. 2d at 70. For the reasons discussed in the text infra, the second Bradbury declaration still fails to provide the necessary information.
21 The D.C. Circuit has noted that “advice prompted by the client’s disclosures may be further and inseparably informed by other knowledge and encounters. We have therefore stated that the privilege cloaks a communication from attorney to client based in part at least, upon a confidential communication [to the lawyer] from [the client].” In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984).
19

Case 1:06-cv-00214-RCL Document 41 Filed 10/31/08 Page 20 of 27
would permit agencies to insulate facts from FOIA disclosure by simply routing them through lawyers in the agency and invoking the attorney-client privilege.” Brinton, 636 F.2d at 604. See also In re Sealed Case, 737 F.2d at 99; Schlefer, 702 F.2d at 245 (noting that the attorney-client privilege protects only confidential information provided by an agency client that is about the agency, or involves the agency).
When asserting privilege based on an attorney’s communication to a client, the client has the burden of demonstrating “with reasonable certainty . . . that the lawyer’s communication rested in significant and inseparable part on the client’s confidential disclosure.” Id. The privilege “protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.” Id. (internal quotations omitted). The privilege does not “exempt a document from disclosure simply because the communication involves the government’s counsel.” Judicial Watch, Inc. v. Dep’t of Army, 435 F. Supp. 2d 81, 89 (D.D.C. 2006).
EPIC contends that DOJ has failed to demonstrate that each of these document contains confidential information provided by a client in the course of seeking legal advice. DOJ rejoins that the Bradbury declarations demonstrate that all of the documents for which attorney-client privilege is claimed were prepared in response to requests for legal advice related to classified foreign intelligence collection activities. DOJ argues that because DOJ does not generally conduct such activities, the classified information was necessarily provided by an agency client in the course of seeking legal advice.22 EPIC has the better argument.
22 DOJ further argues that the advice prepared by OLC was prepared with the expectation that such advice would be held in confidence.
20

Case 1:06-cv-00214-RCL Document 41 Filed 10/31/08 Page 21 of 27
It is not the case that just because the documents at issue contain classified information the documents are protected by the attorney-client privilege. The attorney-client privilege protects confidential information that involves or is about that client. The Bradbury declarations do not indicate what agency or executive branch entity is the client for purposes of the attorneyclient privilege. The Bradbury declarations do not specify what entity transmitted the confidential information at issue to the attorneys. This classified information may have been provided by an agency other than the agency or executive branch entity/official that is asserting the attorney-client privilege. The Bradbury declarations indicate that the documents at issue contain legal advice. Simply because the documents contain legal advice does not necessarily mean that the attorney-client privilege applies to the documents, however. In short, the declarations provided by DOJ are too vague to enable this court to determine whether the attorney-client privilege applies.
The court has no doubt that, to the extent DOJ became privy to classified information, there was an expectation that DOJ was to keep this information confidential. The attorney-client privilege is not necessarily the means for protecting this information. Without more information, the court cannot conclude that the attorney-client privilege applies.
EPIC lastly argues that DOJ has failed to explain how the attorney-client relationship will be harmed in light of the fact that DOJ has released its legal opinions in the past. This argument is without merit. Assuming that DOJ had the authority to waive the attorney-client privilege and did waive it in the past, this does not mean that the privilege is necessarily waived with respect to the instant documents.
21

Case 1:06-cv-00214-RCL Document 41 Filed 10/31/08 Page 22 of 27
iii. Presidential Communications Privilege DOJ asserts that the presidential communications privilege applies to OLC 63/FBI 4, OLC 146, and OIPR 140. EPIC contends that DOJ cannot invoke this privilege because it must be personally invoked by the President. EPIC also asserts that these records are not the kind that fall within this privilege because they are not advisory and deliberative, will not reveal the President’s mental processes, and will not disclose the decision-making processes of the President. DOJ rejoins that in the FOIA context, the presidential communications privilege does not need to be invoked by the President himself. DOJ next asserts that these documents fall within the presidential communications privilege because the Bradbury declarations make clear that these documents were provided to the President or other high-level White House officials in response to requests for advice regarding foreign intelligence collection activities with respect to which the President was the ultimate decision-maker. DOJ has the better argument. DOJ is correct that the presidential communications privilege does not need to be asserted by the President himself. There is no indication in the text of FOIA that the decision to withhold documents pursuant to Exemption 5 must be made by the President. Lardner v. U.S. Dep’t of Justice, 2005 WL 758267, at *8 (D.D.C. Mar. 31, 2005). The presidential communications privilege does not apply to every presidential decision-making process, however. The D.C. Circuit has only provided for a “limited” extension of the privilege “down the chain of command” to the President’s “immediate White House advisors” and their staff. Judicial Watch v. U.S. Dep’t of Justice, 365 F.3d 1108, 1115-16 (D.C. Cir. 2004). Thus, “[n]ot every person who plays a role in the development of presidential advice . . . can qualify for the privilege.” Id.
22

Case 1:06-cv-00214-RCL Document 41 Filed 10/31/08 Page 23 of 27
(citing In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997)). Accordingly, the presidential communications privilege applies to the three documents at issue only if they were solicited or received by immediate or key advisors to the President. Id. at 1116. That is, these individuals must be members of an immediate White House adviser’s staff who have broad and significant responsibility for investigating and formulating the advice to be given the President.” In re Sealed Case, 121 F.3d at 752. If so, the privilege will apply.
Furthermore, EPIC’s argument that these documents are not covered by the presidential communications privilege because they are not advisory and deliberative, and would not reveal the mental processes of the President, is without merit. EPIC cites no authority for the proposition that the presidential communications privilege extends solely to advisory and deliberative documents, or to documents that would reveal the mental processes of the President. EPIC appears to confuse the presidential communications privilege with the deliberative process privilege – they are two separate privileges. Id. at 745 (“the two privileges are distinct and have different scopes”). Indeed, the D.C. Circuit has noted that the presidential communications privilege applies to documents that may not be covered by the deliberative process privilege – the D.C. Circuit has found that the privilege applies to “final and post-decisional materials as well as pre-deliberative ones.” Id.
Lastly, EPIC’s assertion that the presidential communications privilege extends only to documents that reveal the mental processes of the President is not well-taken. The D.C. Circuit has found that the privilege extends to communications that: (1) “do not themselves directly engage the President, provided the communications are either authored or received in response to a solicitation by presidential advisers in the course of gathering information and preparing
23

Case 1:06-cv-00214-RCL Document 41 Filed 10/31/08 Page 24 of 27
recommendations” for the President or (2) are “authored or solicited and received by those members of an immediate White House advisor’s staff who have broad and significant responsibility for investigating and formulating the advice to be given to the President on a particular matter.” Id. at 757. In light of the fact that the privilege extends to communications in which the President is not necessarily involved, it cannot be the case that the privilege extends solely to documents that reveal the President’s mental processes.
The second Bradbury declaration demonstrates that these three documents were properly withheld pursuant to the presidential communications privilege. All three documents were received either by the President or an immediate advisor to the President. OLC 63/FBI 4 was sent from the Acting Attorney General to the Counsel to the President and copied to the President’s Chief of Staff. OLC 146 was sent from a Deputy Assistant Attorney General and Special Counsel in OLC to the Counsel to the President. OIPR 140 was sent from the Assistant Attorney General for OLC to the White House Counsel. All three documents involved matters related to the presidential decision-making process and/or matters on which the White House sought advice. OLC 63/FBI 4 relates to the President’s decision to reauthorize the TSP, OLC 146 was created in response to the White House’s request for information regarding potential responses to terrorist activity, and OIPR 140 was provided by OLC in the course of the presidential decision-making process regarding the continued authorization of particular foreign intelligence activities. Accordingly, this court grants summary judgment to DOJ with respect to OLC 63/FBI 4, OLC 146, and OIPR 140.
24

Case 1:06-cv-00214-RCL Document 41 Filed 10/31/08 Page 25 of 27
B. FBI Documents EPIC challenges the witholding of twelve documents that have been withheld by the
FBI.23 These documents contain information about how TSP-derived information has helped in the FBI’s terrorist investigations. These documents fall into two categories: (1) internal memoranda from the Assistant Director of the Counterterrorism Division to the FBI Director and (2) memoranda concerning the use of TSP in counterterrorism investigations. The FBI asserts that these documents are properly withheld pursuant to Exemptions 1, 3, and/or 5.
EPIC challenges the FBI’s position that all twelve of these documents are properly withheld in their entirety. EPIC points out that the FBI’s rationale for withholding these documents pursuant to Exemptions 1 and 3 is redacted from the FBI’s public submissions almost in its entirety, and thus EPIC cannot discern or challenge the rationale for withholding these documents in their entirety.
While the FBI’s rationale for withholding these documents in their entirety is redacted from the FBI’s public submissions, the FBI has provided its rationale in the classified submissions submitted to the court for in camera review. As discussed supra, such in camera review is appropriate when a FOIA request involves sensitive issues of national security. Upon review of the classified submissions, the court concludes that these documents, in their entirety, are properly withheld under exemptions 1 and 3.24
23 These documents are: FBI 301, FBI 302, FBI 303, FBI 8, FBI 173, FBI 175, FBI 176, FBI 178, FBI 193, FBI 194, FBI 195, and FBI 310.
24 Having determined that the twelve documents withheld from disclosure by the FBI are exempt from disclosure in their entirety pursuant to Exemptions 1 and 3, the court will not address at length the rationale for the FBI’s assertion that four of the documents – FBI 8, FBI 301, FBI 302, and FBI 303 – are also exempt from disclosure pursuant to Exemption 5. It
25

Case 1:06-cv-00214-RCL Document 41 Filed 10/31/08 Page 26 of 27
C. Motion for In Camera Review EPIC requests that this court order DOJ to submit the thirty documents specifically
challenged by EPIC, as well as all other documents with respect to which the court denied summary judgment in its prior memorandum opinion, for in camera review. This court has broad discretion as to whether to order in camera review of documents. Carter v. Dep’t of Comm., 830 F.2d 388, 392 (D.C. Cir. 1987). The court may order in camera review if such review is necessary “to make a responsible de novo determination on the claims of exemption.” Spirko v. U.S. Postal Serv., 147 F.3d 992, 996 (D.C. Cir. 1998) (internal quotations omitted).
The court concludes that in camera review is necessary with respect to all documents that have not been subject to this court’s summary judgment determination. DOJ has now had two opportunities to provide this court with sufficiently detailed affidavits to describe why the documents at issue are subject to the claimed exemptions, and why many documents must be withheld in full. For the reasons discussed supra, DOJ’s declarations are still lacking with respect to some of the withheld documents. The D.C. Circuit has noted that “summary judgment may not be appropriate without in camera review when agency affidavits in support of a claim of exemption are insufficiently detailed.” Armstrong v. Executive Office of the President, 97 F.3d
suffices to state that the these documents are properly withheld from disclosure pursuant to the deliberative process privilege. The FBI does not show that FBI 8 is also properly withheld under Exemption 5 pursuant to the attorney client privilege. The attorney client privilege protects communications from attorneys to their clients, but only if “the communications rest on confidential information obtained from the client.” CREW, 249 F.R.D. at 4. The FBI states that this communication involves a briefing of the FBI Director of the FBI’s role and responsibilities within the TSP. Thus, the sole grounds for asserting the attorney-client privilege appears to be the fact that agency counsel was involved in the communication. It is well-established that the attorney-client privilege does not extend to communications simply because they involve the government’s counsel. Judicial Watch, 435 F. Supp. 2d at 89.
26

Case 1:06-cv-00214-RCL Document 41 Filed 10/31/08 Page 27 of 27
575, 578 (D.C. Cir. 1996). Thus, rather than order further briefing, this court will require DOJ to submit those documents for which it has not been granted summary judgment for in camera review. When the number of documents at issue are few in number, in camera “review may save time and money.” Carter v. U.S. Dep’t of Commerce, 830 F.2d 388, 393 (D.C. Cir. 1987); Quinon v. FBI, 86 F.3d 1222, 1228 (D.C. Cir. 1996) (“Another crude, albeit important, factor to be considered is the number of the withheld documents.”).
III. CONCLUSION For the foregoing reasons, it is this 31st day of October 2008, hereby ORDERED that the Department of Justice’s motion for summary judgment (#50 and #54) is GRANTED in part and DENIED in part; and it is further ORDERED that EPIC’s motion for in camera review (#57) is GRANTED in part and DENIED in part; and it is further ORDERED that the Department of Justice shall submit OLC 16/ODAG 38, OLC 54/ODAG 1/OIPR 28, OLC 59/OIPR 29, OLC 62/ODAG 52, OLC 85, OLC 129/ODAG 6, OLC 131/ODAG 2/OIPR 37/FBI 51, OLC 132/ODAG 5, OLC 113/FBI 42, and ODAG 42 for in camera review, along with any supplemental briefing regarding these records it wishes the court to consider, by no later than November 17, 2008.
Henry H. Kennedy, Jr. United States District Judge
27

 
 Case 1:06-cv-00214-RCL Document 53 Filed 01/18/11 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,

Plaintiff,

v.

No. 1:06-CV-96 (HHK)

UNITED STATES DEPARTMENT OF JUSTICE,

Defendant.

AMERICAN CIVIL LIBERTIES UNION et al.,

Plaintiffs,

v.

No. 1:06-CV-214 (HHK)

UNITED STATES DEPARTMENT OF JUSTICE,

Defendant.

CONSOLIDATED CASES

JOINT PROPOSED STIPULATION REGARDING PROCESSING OF OFFICE OF LEGAL COUNSEL MEMORANDA

On October 31, 2008, this Court ordered Defendant Department of Justice (“DOJ”) to

submit ten memoranda of the Office of Legal Counsel (“OLC”) to the Court for in camera

review to determine the propriety of the DOJ’s withholding of those documents. Elec. Privacy

Info. Ctr. v. Dep’t of Justice, 584 F. Supp. 2d 65, 83 (D.D.C. 2008). On September 15, 2009,

Plaintiffs submitted a supplemental memorandum to the Court, noting the recent disclosure by

the DOJ of a report prepared by the Offices of the Inspectors General of several agencies that,

Plaintiffs maintained, pertained to the Court’s in camera review of the ten OLC memoranda.

(dkt. no. 70). The DOJ responded to Plaintiffs’ submission on December 17, 2009 by

1

Case 1:06-cv-00214-RCL Document 53 Filed 01/18/11 Page 2 of 2

committing to review four of the ten OLC memoranda to determine whether, in light of the

recently released report, “disclosure of any segregable portions of the memoranda is required or

appropriate.” (dkt. no. 47).

The DOJ’s review of the four memoranda is not yet complete. The parties hereby

stipulate, subject to approval by the Court, that the DOJ will complete its review of the four

memoranda and disclose any segregable portions by March 18, 2011.

January 14, 2011

Respectfully submitted,

RONALD C. MACHEN United States Attorney
JOSEPH H. HUNT Director, Federal Programs Branch
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch

/s/ Marc Rotenberg
Marc Rotenberg (DC Bar No. 422825) John Verdi (DC Bar No. 495764) Electronic Privacy Information Center 1718 Connecticut Avenue, N.W., Suite 200 Washington, DC 20009 (202) 483-1140 (telephone) (202) 483-1248 (facsimile)

/s/ Marcia Berman MARCIA BERMAN PA Bar No. 66168 Senior Counsel Federal Programs Branch, Civil Division United States Department of Justice 20 Massachusetts Ave., N.W., Rm. 7132 Washington, D.C. 20530 Overnight Mail Zip Code 20001 Tel: (202) 514-2205 Fax: (202) 616-8470 Email: marcia.berman@usdoj.gov
Counsel for Defendant

/s/ Arthur B. Spitzer Arthur B. Spitzer (DC Bar No. 235960) American Civil Liberties Union
of the Nation’s Capital 1400 20th Street, N.W., Suite 119 Washington, DC 20036 (202) 457-0800 (telephone) (202) 452-1868 (facsimile)
Alexander A. Abdo (pro hac vice) Jameel Jaffer (pro hac vice) 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2517 (telephone) (212) 549-2654 (facsimile)

Counsel for Plaintiffs

SO ORDERED.

Henry H. Kennedy, Jr. United States District Judge

2

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE,
Defendant.

) ) ) ) ) ) ) NO. 1:06-CV-96 (RCL) ) ) ) ) ) )

)

AMERICAN CIVIL LIBERTIES UNION et )

al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF )

JUSTICE,

)

)

Defendant.

)

)

NO. 1:06-CV-214 (RCL)

MEMORANDUM These consolidated Freedom of Information Act cases come before the Court for ex parte in camera review of the memoranda of the Department of Justice Office of Legal Counsel relating to the National Security Agency’s (“NSA’s”) post-9/11 warrantless wire-tapping program. These cases were originally assigned to Judge Henry Kennedy, but were reassigned to the undersigned judge when Judge Kennedy retired. These cases were fully briefed, but a final

decision was delayed until the ten actual remaining withheld documents were subjected to in camera review.
The Terrorist Surveillance Program (“TSP” or the “Program”) was a centralized access signals intelligence program authorized by President George W. Bush in response to the attacks of September 11, 2001. Although President Bush publicly acknowledged, on December 17, 2005, the existence of the Program when its existence was leaked to the press, details about the Program and related activities have remained highly classified and strictly compartmentalized. President Bush acknowledged that the NSA was authorized to intercept the contents of international communications for which there were reasonable grounds to believe that one party was located outside the United States and that at least one party to the communication was a member or agent of al Queda or an affiliated terrorist organization. On January 17, 2007, President Bush announced that any electronic surveillance occurring under the Program would subsequently be conducted subject to the approval of the Foreign Intelligence Surveillance Court, effectively ending the Program. Information about the nature, scope, operation, and effectiveness of the Program remains classified, and the Executive has determined that it cannot be disclosed without causing exceptionally grave harm to the national security of the United States.
The Court has now conducted its ex parte in camera review of ten records withheld by the Department of Justice, along with the In Camera Ex Parte Declarations of Principal Deputy Assistant Attorney General Steven G. Bradbury, dated September 15, 2006, June 5, 2007, and November 17, 2008. The Court is now satisfied with the Department’s decisions to withhold these ten records under Exemptions One and Three, since they are in fact properly classified, as well as Exemption Five as each record contains confidential, pre-decisional legal advice
2

protected by the deliberative-process and attorney-client communications privileges. The Court is also satisfied that Mr. Bradbury’s line-by-line review of these ten records is correct and that there is no meaningful non-exempt information that can be reasonably segregated from the exempt information.
The United States Court of Appeals for the District of Columbia Circuit decided on January 3, 2014, in the case of Electronic Frontier Foundation v. United States Department of Justice, No. 12-5363, that a memorandum prepared by the Office of Legal Counsel for the Federal Bureau of Investigation dealing with telephone and financial records connected to authorized national security investigations could be withheld in its entirety from FOIA disclosure because it was covered by the “deliberative process privilege” in FOIA Exemption 5. Exemption 5 covers “documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.” The District Court, per Judge Richard Leon, had also found in that case that the withheld records were also properly classified under FOIA Exemption 1, but the Court of Appeals found it did not need to address that question since it found the entire OLC opinion was exempt from disclosure under the deliberative process privilege.
This Court sees no principled way to distinguish the OLC opinion in the Electronic Frontier Foundation case from the ten OLC memoranda in this case.
The Court of Appeals has now denied a petition for rehearing en banc with all 11 members of the current court sitting, and the mandate affirming Judge Leon’s decision was filed in this Court on March 25, 2014.
3

Further delay to further explain this Court’s conclusion is unwarranted since appellate review is de novo and the record is adequate to demonstrate that there are no disputed facts and the defendant’s motion for summary judgment must be granted.
A separate Order shall issue this date. Signed by Royce C. Lamberth, U.S. District Judge, on March 31, 2014.
4

 
 Case 1:06-cv-00214-RCL Document 60 Filed 03/31/14 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE,
Defendant.

) ) ) ) ) ) ) NO. 1:06-CV-96 (RCL) ) ) ) ) ) )

)

AMERICAN CIVIL LIBERTIES UNION et )

al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF )

JUSTICE,

)

)

Defendant.

)

)

NO. 1:06-CV-214 (RCL)

ORDER For the reasons set forth in an accompanying Memorandum filed this date, the second Motion for Summary Judgment filed by defendant United States Department of Justice is hereby GRANTED. All non-exempt documents have been produced. This case is hereby dismissed with prejudice. It is so ordered. Signed by Royce C. Lamberth, U.S. District Judge, on March 31, 2014.

 
 I

Case 1:06-cv-00214-RCL Document 54-2 Fibl1e, db303/21/11 Page 1 of 74 U.S. Department of Justice

I

; '

Office of Legal Counsel

~

'

Office of the Assistant Attorney General

Wasilinglon, D.C. 20530
May 6, 2004

MEMORANDUM FOR THE ATTORNEY GENERAL

Re: Review ofthe Legality ofthe

b1, b3

Program (!fS#&I- b1· b3 1,l!>!F)

BACKGROUND

A, September 11, 2001 . , , , , . , ................... , .......... , , , . , , .... , , ... , .. , , , .· , , . .. . .. 5
B. Initiation of b1, b3 . , , . , .. , .. , .. , , ... , , ........ , ........................... , , 6

C. Reauthorizations and the Reauthorization Process . , ..... , , ... , , , . , , , , , , .. , , , . , .. . . . .. . . .. . . . 8

D.

b1, b3

................ , ............................. 9

E. Operation of the Program and the Modifications ofMarch b5 2004 . , . , . , , . , , ..... , . . . . . . . ll

F. PriorOpinionsofthisOffice ... ,.,,., ...... , ... , .... , ........ , ... , ..................... 17

ANALYSIS

l.

b1, b3

II.

b1, b3

Under Executive Order 12,333 .. , .. , ... , ..... , , .. , ........ , ..... , ....... 18 -Statutory Analysis , ... , , ... , , ... , , ..... , , , , , ................. , . . .. . . 19

A. Prior Opinions of this Office- Constitutional Avoidance .. , . , , , .. , , , , , , • , , . , .... , .. , , . , , . 22

B. Analysis of b1, b3 Under FISA Must Take Into Account the September 200 l

Congressional Authorization for Use of Military Force , •.. , ........................... , .. 29

L The Con~ressional Authorization provides express authority for

b1, b3

.. '.'' .. ' ..•.. ' .• ' •. '' '.'' '''.'' ....... ' ........ ' .. '. '.' '.'' .. '.' .. 29

2. At a minhnum, the Congressional Authorization bolsters the case for applying the canon of constitutional avoidance ........... , .... , .. .. . . . . . .. .. . .. . . . . . . . . . . .. . . .. . .. . .. 35

C. If FISA Purported To Prohibit Targeted, Wartime Surveillance Against the Enemy Under

b1, b3

ltWouldBeUnconstitutionalAsApplied . , ........................... 37

1. Even in peacetime, absent congressional action, the President has inherent constitutional authority, consistent with the Fourth Amendment, to order warrantless foreign intelligence surveillance .. , , . , . , , , , . , , , . , , , , , .... , ....................................... 37

2. FISA is unconstitutional as applied in dtis context ... , ............................... 43

a. Even outside the context of wartime survei11ance of the eilemy, the scope of Congress's power to restrict the Presidenfs inherent authority to conduct foreign intelligence surveillart.ce is unclear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

b. In the narrow context of interception of enemy communications in the midst of an anned conflict, FISA is unconstitutional as applied ..................... , , ........ , . .. .. 51

Derived from:

b1,b3

1/NOFOR:.."t

HPresidential Authorization for Specified Electronic Surveillance Activities During a Limited Period to Detect and PreventActs of Terrorism Within the United States," dated Oct. 4, 2001, and subsequent related Presidential authorizations
b5

[

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 2 of 74

'f0-P-8-E€R£'r!Jb1, b3//OOMINT-

b1,b3

//N0F6RN

I

3,

b1, b3

'

III.

b1, b3

A.

b1,b3

............ 74 81 83

B.

b1, b3

86

c.

b1, b3

89

IV.

b1, b3

. ................................... 96

A.

b1, b3

. ................................... 96

B.

b1, b3

98

c.

b5

99

D.

b1, b3

100

V.

b1, b3 Under the Fourth Amendment ............................ . .. .......... 100

A.

b1, b3

Interceptions Are Reasonable Under Balancing-of-Interests Analysis. 101

B.

b1, b3

...................... 106

CONCLUSION ' .. ' ......................................... ' • ' .......................... ' 108

You have asked this Office to undertake a thorough reexamination of the b1' b3

program as it is currently operated to confiim that the actions that the President has

directed the Departmentof Defense to undertake through the National Security Agency (NSA)

are lawful.

b1• b3 is a highly classified and strictly compartmented program of

electronic surveillance within the United States that President Bush directed the Department of

Defense to undertake on October4, 2001 in response to the attacks ofSeptember 1'1, 2001.

Specifically, the program is designed to counter the threat of further terrorist attacks on the

territmial United States by detecting communications tl1at will disclose terrorist operatives,

terrorist plans, or other information that can enable the disruption of such attacks, particularly the

identification of al Qaeda operatives within the United States. The President's initial directive to

the Secretruy ofDefense authorized the b1, b3 program for 30 days. Since 'then, the

President has periodically (roughly every 30 to 45 days) reauthorized the program.

(~/ b1,b3/NF)

.

After describing the initiation of b1, b3 modifications to the program, and its cutTent operation, including the periodic reauthorizations by the President, this memorandum provides a legal analysis ofthe program in four parts. In Part I, we briefly examine b1 · b3
under Executive Order 12,333, 46 Fed. Reg. 59, 941 (Dec. 4, 1981), the Executive Order governing the resoonsibilities and conduct of various entities in the intelligence conununitv.
b1, b3, b5

fFSII&I· b1, b3 /INF)

b1, b3

'INOF6RN

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 3 of 74

'f-9-P BEC-RIH'If b1• b3 '/OOMfN'f--

b1,b3

1/NBFBRN

In Part II, we address the statutory framework that govems the interception of

communications in the Tlnited States and its annlication to

b1, b3

international

communications involving suspected terrorists. Specifically, we address the Foreign Intelligence

Surveillance Act (FISA), as amended, 50 U.S.C. §§ 1801-1862 (2000 & Supp. I 2001), and

relevant related provisions in Title III of the Omnibus Crime Control and Safe Streets Act of

1968, as amended, 18 U.S.C. §§ 2510-2521 ("Title III") (2000 & Supp. I 2001). 1

b1,b3, b5

'('ffilf.&I. b1, b3 1/NF)

b5 _

_

we turn to a new analysis of

b1• b3 in relation to FISA based on the recognition that a proper legal review should

not examine FlSA in isolation. Rl!ther, in the context of b1' b3

in the

ongoing conflict with a! Qaeda, the restrictions in FISA must be read in light ofthe express

authorization enacted by Congress onBeptember 18, 2001 providing the President authority "to

use all necessary and appropriate force against those nations, organizations, or persons he

determines planned, authorized, committed, or aided the terrorist attacks" of September 11.

Authorization for Use ofMilitary Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (Sept. 18,

2001) (reported as a note to 50 U.S.CA § 1541) ("Congressional Authorization"). The

Congressional Authorization is significant for our analysis in two respects. First, it is properly

understood as an exoress authorization for surveillance activities-

b1 , b3

- targeted against al Qaeda and afftliated

organizations that come within its terms. Second, even if it did not provide express authority for

b 1 , b3

, at a minimum the

Congressional Authorization creat~s sufficient ambiguity concerning the application ofF!SA in

this context that the canon of constitutional avoidance can properly be invoked to-construe the

Congressional Authorization to overcome restrictions in FISA in this context. ('f<'dlffi. b1, b3 /INF)

b1, b3, b5
. We conClude that in the circumstances of the current armed conflict with al Qaeda, the restrictions set. out in FISA, as applied to targeted efforts to intercept the communications of the enemy in order to prevent further armed attacks on the United States, would be an unconstitutional infringement

1Unless otherwise noted, all United States Code citations in this memorandum are to the 2000 edition. (U)
3
b1, b3

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 4 of 74

b1,b3

//NeFBRN

on the constitutionally assigned powers of the President. The President has inherent

constitutional authority as Commander in Chief and sole organ for the nation iu foreign affairs to

conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt

am1cd attacks on the United States_ ConQre.« cines not have the nower to restrict the President's

exercise of that authority.

b1, b3, b5

b1,b3, b5

b1, b3, b5

4 TOP SECRET{{ b1, b31/GOM1NT

b1, b3

'/NeFeRN

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 5 of 74

b1, b3

I{NBF-6-RN

Finally, in Part V, we examine

b1, b3

under the requirements oflhe Fourth Amendment.

Although no statutory requirements prevent the President from conducting surveillance under

b1' b3 , electronic surveillance under b1' b3

must still comply with the

requirements ofthe Fourth Amendment. We reaffim1 our conclusions (i) that as to b1' b3

activities come within an exception to the Warrant Clause and

satisfy the Fourth Amendment's reauirement of reasonableness, and (ii)

b1 • b3

The activities authorized under are thus constitutionally permissible. {TSHSI- bi, b3 1/NF)

b1, b3

BACKGROUND (U)

A. September 11, 2001 (U)

On September II, 2001, the al Qaeda terrorist network launched a set of coordinated attacks along the East Coast of the United States. Four commercial airliners, each apparently carefully selected because it was fully loaded with fuel for a transcontinental flight, were hijacked by al Qaeda operatives. Two were targeted at the Nation's financial center in New York and were deliberately flown into the two towers of the World Trade Center. The third was targeted at the headquarters ofthe Nation's armed forces, the Pentagon. The fourth was apparently headed toward Washington, D.C., when passengers struggled with the hijackers and the plane crashed in Pennsylvania. Subsequent debriefings of captured al Qaeda operatives have confirmed that the intended target ofthis plane was either the White House or the Capitol building, which suggests that its intended mission was a decapitation strike~ an attempt to eliminate critical govermnentalleaders by killing either the President or a large percentage of the members ofthe Legislative Branch. These attacks resulted in approximately 3,000 deaths- the highest single-day death toll from foreign hostile action in the Nation's history. They also shut down air travel in the United States for several days, closed the New York Stock Exchange for days, and caused billions of dollars in damage to the economy. (U)

On September 14, 2001, tl1ePresident declared a national emergency "by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat offurther attacks on the United States." Proclamation No. 7463, 66 Fed. Reg. 48,199 (Sept. 14, 2001). The United States also launched a massive military response, both at home and abroad. 1n the United States, combat air patrols were immediately established over major metropolitan areas and were t'naintained 24 hours a day until April2002.2 The United States also innnediately began plans for a military response directed at a1 Qaeda's base of operations in Afghanistan. On September 14, 2001, both houses of Congress passed a joint resolution authorizing the President "to use all necessary and appropriate force against those nations, organizations, or p'ersons he determines planned, authorized, committed, or aided the terrorist attacks" of September 11. Congressional Authorization§ 2(a). Congress also expressly

b1, b5

5 TOP SEGRET/fb1. b31/COMINT

b1,b3

I!N<:WeRN

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 6 of 74

roJ>--&EGiill-1'// b1, b3'/€0MINT

b1, b3

'/NO-FORN

acknowledged that the attacks rendered it "necessary and appropriate" for the United States to exercise its right "to protect United Stales citizens both at home and abroad," and acknowledged in particular that the "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." !d. pmbl. Acting under his constitutional authmity as Commander in Chief, and with the support ofCongress, the President dispatched forces to Afghanistan and, with the cooperation of the Northern Alliance, toppled the Talihan regime from power. Military operations to seek out resurgent elements ofthe Taliban regime and a! Qaeda fighters continue in Afghanistan to this day. See, e.g., Mike Wise and Josh White, Ex-NFL Player Tillman Killed in Combat, Wash. Post, Apr. 24, 2004, at AI (noting that "there are still more than l 0,000 U.S. troops in the country and fighting continues against remnants of the Taliban and a! Qaeda"). (S)

As the President made explicit in his Military Order of November I3, 2001, authorizing the use ofmilitary commissions to try terrorists, the attacks of September I1 "created a state of anned conflict." Military Order,§ !(a), 66 Fed. Reg. 57,833,57,833 (Nov. 13, 2001); see also Memorandum fat· Albe1to R. Gonzales, Counsel to the President, from Patrick F.'Philbin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Legality ofthe Use ofMi/itmy Commissions To Try Terrorists 22-28 (Nov. 6, 2001) (concluding that attacks established a state of armed conflict pennitting invocation of the laws ofwar). Indeed, shortly after the attacks NATO took the unprecedented step of invoking article 5 ofthe North Atlantic Treaty, which provides that an "anned attack against one or more of [the parties] shall be considered an attack against them all." North Atlantic Treaty, Apr. 4, 1949, art. 5, 63 Stat. 2241,2244,34 U.N.T.S. 243, 246; see also Statement by NATO Secretary General Lord Robertson (Oct. 2, 2001), available at http://www.uato.int/docu/speech/200lls011002a.htm ("[I]t has now been detennined that the attack against the United States on II September was directed from abroad and shall therefore be regarded as an action covered by Article 5 ofthe Washington Treaty ...."). The President also determined in his Military Order that al Qaeda terrorists "possess both the capability and the intention to undertake further terrorist attacks against the United States that, if not detected and prevented, will cause mass deaths, mass injuries, and massive destruction of property, and may place at risk the continuity of the operations of the United Sates Govenunent," and concluded that "an extraordinary emergency exists for national defense purposes." Military
Order,§ !(c), (g), 66 Fed. Reg. at 57,833-34. (U)

B. Initiation of

b1, b3

(±SIISI· b1, b3 1/NF)

Against this unfolding background of events in. the fall of2001, there was substantial concern that a! Qaeda was preparing a further attack within the United States. AI Qaeda had demonstrated its ability to infiltrate agents into the United States undetected and have them carry out devastating attacks, and it was suspected that further agents were likely already in position within the Nation's borders. Indeed, to this day finding a! Qaeda sleeper agents in the United States remains one of U1e top concerns in the war on terrorism. As FBI Director Mueller recently stated in classified testimony before Congress, "[t]he task offinding and neutralizing al-Qa'ida operatives that have already entered the U.S. and have established themselves in American society is one of our most serious intelligence and law enforcement challenges.•: Testimony of

6 TOP-SEGREF/ib1, b3 //GOJIIUNT

b1. b3

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 7 of 74

b1, b3

'!NO FOI.L"l

Robert S. Mueller, In, Director, FBI, Before the Senate Select Comm. on Intelligence 5 (Feb. 24, 2004) (8/0RGON,l'W). (WNF)

To counter that threat, on October 4, 2001, the President directed the b5

to use the capabilities of the Department of Defense, in particular the National Security

Agency (NSA), to undertake a program of electronic surveillance designed to

b1, b3

countering the threat of further al Qaeda

attacks within the United States.

b1, b3

communications for which there was probable cause to believe

that at least one party to the communication

b1, b3, b5

Presidential Authorization for

Specified Electronic Surveillance Activities During a Limited Period to Detect and Prevent Acts

ofTerrorism Within the United States b3, bs

(Oct.

4,

2001)

(+S/&LlCOMlN±1

1 b,

3 b

JNF)

("October 2001 Authorization").

b1, b3, b5

('fS11SJ:. b1, b3 'INF)

The President further directed that the Department of Defense should minimize the

information collected concerning American citizens, consistent with the object of detecting and

preventing terrorism. See October 2001 Authorization

b3, b5

The October 4, 2001

Presidential Authorization stated:

b3,b5

October

2001

Authorization

3 b.

bs Subsequent

Presidential Authorizations have repeated identical language.

(+8118I-

13 b ,b

INF)

7 *OP SECRE*h b1, b3 1COMIN'f-

b1. b3

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 8 of 74

roP-SECRET/, b1. b3/G9MI-NI-'-

b1, b3

The President based his decision to initiate the program on specific findings conceming
the nature of the threat facing the United States and the actions that were necessary to protect
national security. First, the President found that b3, b5

Second, the President noted that he had considered the magnitude and probability of deaths and
destruction that could result from filrther terrorist attacks; the need to detect and prevent such attacks, particularly through effective electronic surveillance that could be initiated swiftly and with secrecy; the possible intrusion into the privacy of American citizens that might result from
the electronic surveillance being authorized; the absence ofmore narrowly tailored means of obtaining the information that was the obiect of the surveillance; and the
b3, b5

Upon consideration of these factors, the President

determined that

b3, b5

and that this

emergency constituted

b3, b5

that supported

conducting the described surveillance without resort to judicial warrants. b3,. b5 The President

noted, however, that he intended to infonn the appropriate members of the Senate and the House

of Representatives as soon as that could be done consistent with national defense needs. b3, b5.3
(+SIISI- b1. b3 'INF)

C.

Reauthorizations and the Reauthorization

Process

('FSIISI-

13 b ,b

lfNF)

As noted above, the President's Authorization of October 4, 2001, was limited in duration

and set its own exoiration date for thirty (lays from the date on which it was signed. Since then,

the

b1• b3

program has been periodically reauthorized by the President, with each

authorization lasting a defined time period, typically 30 to 45 days. The restriction of each

authorization to a limited duration has ensured that the basic findings described above upon

which the President assesses the need for the

b1• b3

program are re-evaluated by the

' We note that, in compliance with the President's instructions, the chainncn ond ranking minority

members of the House and Senate intelligence committees were briefed periodically on

bi, b3

by the

Director of!he NSA in 2002 and 2003.

b1,b3,b5

8
b1, b3

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 9 of 74

I

b1, b3

i

President and his senior advisors based on current infom1ation every time that the program is reauthorized. (~ b1, b3 /!NF)

I

I

The reauthorization process operates as follows. As the period of each reauthorization

nears an end, the Director of Central Intelligence (DC!) prepares a memorandum for the

President outlining selected current infom1ation concerning the continuing threat that a! Qaeda

poses for conducting attacks in the United States, as well as infom1ation describing the broader

context of a! Qaeda plans to attack U.S. interests around the world. Both the DC! and the

b5

review that memorandum and sign a recommendation that the President

should reauthorize b1, b3 based on the continuing threat posed by potential terrorist

attacks within the United States. That recommendation is then reviewed by this Office. Based

upon the infom1ation provided in the recommendation, and also taking into account infom1ation

available to the President from all sources, this Office assesses whether there is a sufficient

factual basis demonstrating a threat ofterrorist attacks in the United States for it to continue to be

reasonable under the standards of the Fourth Amendment for the President to authorize the

wamuitless searches involved in

b1, b3

(The details of the constitutional analysis

this Office has applied are reviewed in Part V of this memorandum.) As explained in more detail

below, since the inception of

b1 • b3

intelligence from various sources (particularly

from interrogations of detained a! Qaeda operatives) has provided a continuing flow of

information indicating that al Qaeda has had, and continues to have, multiple redundant plans for

executing further attacks within the United States. These strategies are at various stages of.

plaiU}ing and execution, and some have been disrupted. They include plans for

b1,b3

~

After reviewing each

of the proposed b1 • b3 reauthorizations, this Office has advised you that the proposed

reauthorization would satisfy relevant constitutional standards of reasonableness under the

Fourth Amendment, as described in this Office's earlier memoranda. Based on that advice, you

have approved as to form and legality each reauthorization to date, except for the Authorization

ofMarch 11, 2004 (discussed further below), and forwarded it to the President for his action.

(f-&NSI- b1. b3 /fNF.)

Each authorization also includes the instructions noted above to minimize the information

collected concerning American citizens, consistent with the objective of detecting and preventing

terrorism,

b3, b5

(+SJ,IS b1, b3 '!NF)

D. Modifications to

b1, b3

Authority (+£/fSI. b1, b3 //NF)

The scope of tlie authorization for electronic surveillance under b1, b3 has
changed over time. The changes are most easily understood as being divided into two phases: (i)
those that occurred before March 2004, and (ii) those that occurred in March b5 2004. (+SI.I&I· b1, b3 //NF)

9 1'-GP SEGP..E'f//b1. b3'/G9MJN!f-

b1,b3

1/NOFORN

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 10 of 74

'I'9·P-S-EGR:Wf/ib1, b3 t/C9MIN'F-

b1. b3

//·NBF8RN

b1, b3, b5

b5

10 TaP SECREl!// b1• b3 1C9MINT

b1,b3

/fNf)FSRN

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 11 of 74

+&~I bl, bJ I/80MINT

b1,b3

1/N!.'WORN

2004 provided the

b5

(+SHSI· b1, b3 //NF)

b1, b3, b5
All subsequent reauthorizations until March II, with authority using the same operative tenns.

E. Operation of the Program and the Modifications of March b5 2004
('F£11&1- b1. b3 '/!NF)

A second, more substantial series of changes to

b1' b3

took place in March

b5 2004. To understand these changes, it is necessary to understand some background

concerning how the NSA accomplishes the collection activity authorized under b1' b3

(TS//Sl b1, b3 //NF)

b1, b3, b5

b1, b3, b5
b1.b3,b5 b1.b3,b5

11 'l'GP--SIOC--RE!f/1 b1· b3 /COMINT

b1, b3

1/NeFOP.N

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 12 of 74
Pages 12-14 Withheld in Full
b1,b3,b5

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 13 of 74

!feP SBERE-1'/1 b1, b3fJG9!V'.:H'I+-

b1, b3

//NGF0RN

b1, b3, b5

Third, the March 11, 2004 Authorization also makes clear that these changes are

consistent with all past Authorizations,

b1, b3, b5

(+SIISI· b1' b3 1/NF)

Finally, the President, exercising his constitutional authority m1der Article II

determined that the March 11, 2004 Authorization and all prior Authorizations were lawful

exercises of the President's authority m1der Article II, including the Commander-in-Chief

Clause.

b5

('f&ff&I- b1, b3 1/NF)

b1, b3, b5

10
b1, b3, b5

15 '1'91' 8EGRE'F/Ib1, b3//eeJV'rlN'f-.

b1, b3

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 14 of 74

TOP SEGR:E'fJb1, b3 //COMlN'J-

b1,b3

//NOFORN

In the March 19, 2004 Modification, the President also clarified the scope of the

authorization

b1, b3

He made clear that the

Authorization applied where there were reasonable !lrounds to believe that a communicant was

an agent of an international terrorist group

b1, b3, b5

March 19, 2004

b5

('F81J&l· b1' b3 'fl>W)

b1, b3, b5

Tllis memorandum analyzes

b1, b3

that includes solely the following authorities:

as it currently operates. 11 To sununarize,

(1) the authority to intercept the content of international communications "for which, based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are reasonable grounds to believe ... [that] a party to such communication is a group engaged in international terrorism, or activities in preparation therefor, or any agent of such a group," as long as that

b1, b3, b5

16 l'OF-SEGRE!f-/, b1, b3'/GGMIN-'J--

b1' b3

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 15 of 74

+GP-SEC~/1 b1· b3 /GGMINT

b1, b3

group is al Qaeda, an affiliate of at Qaeda or another international terrorist group that the President has detem1ined both (a) is in armed conflict with the United States and (b) poses a threat of hostile action within the United States;12
b1, b3, b5

b1, b3, b5

F. Prior Opinions ofthis Office (U)

This Office has issued several opinions analyzing constitutional and other legal issues

related to the

b1 • b3

program. On October 4, 2001,

b1' b3, b5

we evaluated the legality ofa hypothetical electronic surveillance program b1, b3, b5

On November 2, 2001, we expressly examined the authorities granted by the President in the

November 2. 2001 Authorization of

b1, b3

and concluded that thev were lawful.

b1, b3, b5

Finatly, on October 11,2002, we issued an opinion confuming
the application of our prior analysis to the reauthorization of the program then periding, which
was to continue the program until November 21, 2002.
b1, b3, b5
(-±81°1' ""fSiiGRGGN/NFI b1, b3

"

b1, b3 ('FSI/SI· b1. b3 /INF)

b1, b3, b5

17 TOP 8ECRET/b1. b3 /fCGMINT

b1, b3

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 16 of 74

TOP SE€RET/1b1, b3 //€0MINT-

b1, b3

b1, b3, b5

('fSH&J. b1, b3 /.INF)

You have asked us to undertake a thorough review of the current program to ensure that it is lawful. (TSIISJ b1• b3 '/.INF)

ANALYSIS (U)

I.

b1, b3

Under Executive Order 12,333 ('fSH&[- b1· b3 '//NF)

b1, b3, b5

b1, b3, b5 b1, b3, b5

b1,b3,b5

18 Tm4l-E€IffiT// b1· b31/€0Mll'ff.-

bt b3

1/N{)WRN

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 17 of 74 b1,b3 b1, b3, b5

11.

b1, b3

Statutory Analysis ('I'SHS£. b1•b3 'INF)

In this Part, we tum to an analysis of

b1• b3

under relevant

statutes regulating the government's interception ot commumcations, specifically under the

framework established by the Foreign Intelligence Surveillance Act and title ffi ofthe Omnibus

Crime Control and Safe Streets Act of 1968. Generally speaking, FISA sets out several

authorities for the govemment to use in gathering foreign intelligence (including authority to ·

intercept communications, conduct physical searches, and install pen registers); establishes

certain procedures that must be followed for these authorities to be used (procedures that usually

involve applying for and obtaining an order from a special court); and, for some ofthese

authorities, provides that the processes provided by FISA are the exclusive means for the
government to engage in the activity described. Title m and related provisions codified in title

18 of the United States Code provide authorities for the use of electronic surveillance for law

enforcement purposes.

b1, b3

('F8ff&I· b1. b3 //NF)

Generally speaking, FISA provides what purports to be, according to the terms of the statute, the exclusive means for intercepting the content ofcommunications in the United States for foreign intelligence purposes. Specifically, FISA sets out a definition of"electronic surveillance"15 - a definition that includes any interception in the United States ofthe contents of

"FISA defines "[c]lectronicsurveillance" as:

(1) tim acquisition by an electronic, mcc1Ianical; or other surveillance device of the contents of any wire or radio commw>ication sent by or intended to be received by a particular, known United States person who is in the United States, iftl10 contents are acquired by intentionally targeting that United Stales person, under circumstances in which a person has a reasonable expectation ofprivacy and a warrant would be required for law enforcement pUI]lOSes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent

19 'f{}ll-&EC--RWf/. b1, b3 1/GeMINf..

b1, b3

fJNeli'enN

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 18 of 74
b1,b3
a "wire communication" to or from a person in the United Stales- and provides specific procedures that must be followed for the government to engage in "electronic surveillance" as thus defined for foreign intelligence purposes. As a general matter, for electronic surveillance to be conducted, FISA requires that the Attorney General or Deputy Attomey General approve an application for an order that must be submitted to a special Article III court created byFISAthe Foreign Intelligence Surveillance Court (FISC). See 50 U.S.C. § 1804 (2000 & Supp. I 2001 ), 16 The application for an order must demonstrate, among other things, that there is probable cause to believe that the target is a foreign power or an agent of a foreign power. See id. § 1805(a)(3)(A). It must also contain a certification from the Assistant to the President for National Security Affairs or an officer of the United States appointed by the President with the advice.and consent of the Senate and having responsibilities in the area of national security or defense that the inforination sought is foreign intelligence information (as defined by FISA), that catmot reasonably be obtained by normal investigative means. See id. § l804(a)(7). FISA further requires details about the methods. that will be used to obtain the infonuation and the particular facilities that will be the subject ofthe interception. See id. § 1804(a)(4), (a)(8). (:r-W&I· b1, b3 'NNF)
FISA expressly makes it a felony offense, punishable by up to 5 years in prison, for atlY person intentionally to conduct electronic surveillance under color of law except as pmvided by statute, See 50 UcS.C. § l809Y This provision is complemented by an interlocking provision in Title Ill- the portion of the criminal code that provides the mechanism for obtaining wire taps for law enforcement purposes. Section 2511 of title 18 makes it an offense, also punishable by up to S years in prison, for any person to intercept a communication except as specifically provided in that chapter. 18 U.S.C. § 2511(l)(a), (4)(a). One of the exceptions expressly provided is that it is not unlawful for "an officer, employee, or agent ofthe Uriited States , .. to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, as authorized by that Act." Id. § 2511(2)(e) (emphasis added). On their face, these provisions make FISA, and the authorization process itreqnires, the exclusive lawful means for the Executive to engage in ''electronic surveillance," as defined in the Act for foreign intelligence

ofany party thereto, if such acquisition occurs in the United States • , . ;
{3) the intentional acquisition by an electronic, mechanical, or other surveillance device ofthe contents of any radio .communication, under circumstances in which a person has a reasonable expectaHon of privacy and a warrant would be r~quired for law enforcement purposes, an,d if both th~ sender and all intended recipients are located within the United States; or
(4) tho installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire infonnation, other than from a wire or radio co_nununication, under circumstances in which a person has a reasonable expectation ofprivacy and a warrant would be required for law enforcement purposes.

50 U.S.C. § 1801(1) (2000 & Supp. I 2001), (-'fSH&J. b1, b3 1/NF)

"Section 104 ofFISA speaks only oftl1e Attorney General, but section lOl(g) defines ''Attorney General" to include the Deputy Attorney General. See 50 U.S.C. § 180l(g). ('f-BIISI· b1 · b3 IINF)
17 See a/sa 50 U.S.C. § 18 I0 (providing for civil liability as well). ('FSIISI· b1• b3 /fNF)

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purposes. !ndeed, this exclusivity is expressly emphasized in section 251 I(2)(!), which states

that "procedures in this chapter or chapter 121 [addressing access to stored wire and electronic

communications and customer records] and the Foreign lntelligence Surveillance Act of 1978

shall be the exclusive means by which electronic surveillance, as defined in section I0I of such

Act, and the interception of domestic wire, oral, and electronic communications may be

conducted." !d.

§ 2511 (2)(f) (2000 & Supp.l2001).

('F&/f8t

3 bi. b

//NF)

b1, b3, b5

As we explain in Part ll.B, a proper analysis

of

b1, b3

must not consider FISA in isolation. Rather, it must take into account the

Congressional Authorization for Use ofMilitary Force. We conclude that the Congressional

Authorization is critical for

b1, b3

in two respects. First, its plain terms can properly

be understood as an express authorization for surveillance targeted specifically at al Qaeda and

affiliated terrorist organizations. The Congressional Authorization effectively exempts such

surveillance from the requirements ofFISA, Second, even ifit does not provide such express

b1. b3, b5

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/NO FOR."<

authority, at a minimum the Congressional Authorization creates sufficient ambiguity conceming

the application ofFISA that it justifies applying the canon of constitutional avoidance to construe

the Congressional Authorization and FISA in coniunction such that FISA docs not preclude the

surveillance ordered by the President in

b1' b3

Finally, in Part II.C we explain that,

even if constitutional narrowinl! could not be applied to avoid a conflict between b1 • b3

· and FISA,

b1' b3

the President has ordered, which specifically targets

communications of the enemy in time of war, would be lawful because the resttictions ofFISA

would be unconstitutional as applied in this context as an impermissible infl'ingement on the

President's constitutional powers as Commander in Cb.ief, ('fSH&I- bj, b3 lfNF)

A. Prior Opinions of this Office-Constitutional Avoidance (U)

Reading FISA to prohibit

b1, b3

would, at a minimum, raise serious doubts about the constitutionality of the statute. As

we explain in greater detail below, see Part II.C.1, the President has inherent constitutional

authority to conduct warrantless electronic surveillance for foreign intelligence purposes.

Indeed, it was established at the tin1e FISA was enacted that the President had such an inherent

constitutional power. See, e.g., United States v, Butenko, 494 F.2d 593 (3d Cir. 1974) (en bane).

A statute that purports to eliminate the President's ability to exercise what the courts have

recognized as an inherent constitutiooal autho1ity- particularly a statute that would eliminate his

ability to conduct that surveillance during a time of armed conflict for the express purpose of

thwarting attacks on the United States- at a minimum raises serious constitutional questions,
(~· b1,b3 I~

When faced with a statute that may present an unconstitutional infringement on the powers of the President, our first task is to detennine whether the statute may be construed to avoid the constitutional difficulty_ As the Supreme Court has explained, "if an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is 'fairly possible,' we are obligated to construe the statute to avoid such problems." INSv. St. Cyr, 533 U.S. 289,299-300 (2001) (citations omitted); see also Crowell v. Benson, 285 U.S. 22, 62 (1932){"Whenthe validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will ftrst ascertain whether a construction ofthe statute is fairly possible bywluch the question may be avoided,");Ashwander v, TVA, 297 U.S. 288,345-48 (1936) (Brandeis, J., concurting). In part, this rule ofconstruction reflects a recognition that Congress should be presumed to act constitutionally and that one. should not "lightly assume that Congress intended to ... usurp power constitutionally forbidden it." Edward J. DeBartolo Corp. v. Florida GzdfCoast Bldg. & Co11str. Trades Cou11cil, 485 U.S, 568, 575 (1988). As a result, "when a particular inteijJretation ofa statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result," St, Cyr, 533 U.S, at 299; see also NLRB v. Catholic Bishop ofChicago, 440 U.S. 490, 506-07 (1979). (U)
This Office has always adhered to the rule of constmction described above and generally will apply all reasonable interpretive tools to avoid an unconstitutional encroachment upon the

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President's constitutional powers where such an interpretation is possible. Cj Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992) ("Out of respect for the separation of powers and the unique constitutional position ofthe President, we find that textual silence is not enough to subject the President to the provisions of the [Administrative Procedure Act]. We would require an express statement by Congress before assuming it intended the President's performance of his statutory duties to be reviewed for abuse of discretion."). As the Supreme Court has recognized, moreover, the canon ofconstitutional avoidance has particular importance in the realm of national security and national defense, where the President's constitutional authority is at its highest. See Department ofthe Navy v. Egm1, 484 U.S. 518, 527,.530 (1988) (explaining that presidential a!Jthority to protect classified information flows directly from a "constitutional investment of power in the President" and that as a result "unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs"); William N. Eskridge, Jr., Dynamic Statut01y 1/llerpretation 325 (1994) (describing "[s)uper-strong rule against congressional interference with the president's authority over foreign affairs and national security"); cj Public Citizen v. Department ofJustice, 491 U.S. 440, 466 (1989) ("Our reluctance to decide constitutional issues is especially great where, as here, they concern the relative powers of coordinate branches of govemment. "). Thus, this Office will typically construe a general statute, even one that is written in unqualified terms, to be implicitly limited so as not to infringe on the President's Conunander-in-Chiefpowers. Cf id. at 464-66 (applying avoidance canon even where statute created no ambiguity on its face). Only if Congress provides a clear indication that it is attempting to regulate the President's authority as Conunander in Chief and in the realm of national security will we construe the statute to apply. 19 (U)
The constitutional avoidance canon, however, can be used to avoid a serious constitutional infirmity in a statute only ifa construction avoiding the problem .is "fairly possible," Crowell v. Benson, 285 U.S. at 62, and not in cases where "Congress specifically has provided otherwise," Egan, 484 U.S. at 530. "Statutes should be construed to avoid constitutional questions, but this interpretive canon is not a license ... to rewrite language

19 For example, this Office has concluded tha~ despite statutory restrictions upon Ute use ofTille 111 wiretap information and restrictio!lS on the use of grand jury information under Federal Rule ofCriminal Procedure 6(e), the President has an inherent constitutional authority to receive all foreign intelligence information in the hands of the government necessary for him to fulfill his constitutional responsibilities and that statutes and rules should be understood to include an implied exception so as not to interfere with that authority. See Memorandum for the Deputy Attorney General from JayS. Bybee, Assistant Attorney General, Office ofLegal Counsel, Re: Effect ofthe Patriot Act 011 Disclosure to the Presidem am/ Other Federal Officials ofGrand Jury and Title !II Information Relating to National Security and Foreign Affairs I (July 22, 2002); Memorandum for Frances Fragos Townsend, Counsel, Office ofintelligence Policy and Review, from Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, Re: Title Ill Electronic Surveillance Material m1d the Intelligence Ccmmu11ity 1314 (Oct. 17, 2000); Memorandum for Gerald A. Schroeder, Acting Counsel, Office ofIntelligence Policy and Review, from Richard L. Shiffiin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Grand Jury Material and the Intelligence Community .14-17 (Aug. 14, 1997); see also Rainbow Navigation, Inc. v. Department ofthe Navy, 783 F.2d 1072, 1078 (D.C. Cir. 1986) (Scalia, J.) (suggesting that an "essentially domestic statute" might have to be understood as "subject to an implied exception in deference to" the President's "constitutionally conferred powers as conunander-in-chief' that the statute was not meant to displace). (U)

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enacted by the legislature." Salinas v. United States, 522 U.S. 52, 59-60 ( 1997) (intemal quotation marks omitted). If Congress has made it clear that it intends F!SA to provide a
comprehensive restraint on the Executive's ability to conduct foreign intelligence surveillance,
UJCn the question whether FISA's constraints are unconstitutional cannot be avoided. (TSILSI- b1, b3 'Mi)

b1, b3, b5

b1, b3, b5
b1,b3,b5 ?d
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B. Analysis of

b1, b3 Under FISA Must Take Into Account the

September 2001 Congressional Authorization for Use of Military Force ~- b1, b3 '!NE.)'

ln the particular context of

b1, b3 however, FISA cannot properly be

examined in isolation. Rather, analysis must also take into account the Congressional

Authorization for Use ofMilitary Force passed specifically in response to the September II

attacks, As explained below, that Congressional Authorization is properly read to provide

explicit authority

Moreover,

even ifit did not itselfprovide authority for

b1, b3 at a mmmmm the congressional

Authorization makes the application of FISA in this context sufficiently ambiguous that the

canon of constitutional avoidance properly applies to avoid a conflict here between FISA and

b1 ' b3

(+£/I£I- b1' b3 '/Nil)

1. The Congressional Authorization provides express authority for

b1, b3

('fSIISI- b1, b3 IINF)

On September 18,2001 Congress voted to authorize the President "to use all necessary and appropriate force against those nations, organizations, or persons he detennines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." Congressional Authorization § 2(a). In authorizing "all necessary and appropriate force" (emphasis added), the Authorization necessarily included the use ofsignals intelligence capabilities, which are a critical, and traditional, tool for finding the enemy so that destructive force can be brought to bear on him. The Authorization, moreover, expressly gave the President authority to undettake activities both domestically and overseas, Thus, the operative tenns state that the President is authorized to use force "in order to prevent any future acts ofinternational terrorism against the United States," id., an objective which, given the recent attacks within the Nation's borders and the continuing use of combat air patrols throughout the country at the time Congress acted, certainly contemplated the possibility ofmilitary action within the United States, TI1e prearnbulatory clauses, moreover, recite that the United States should exercise its rights "to protect United States citizens both at, home and abroad." Id. pmbl. (emphasis added). As commentators have acknowledged, the broad tenns of the Congressional Authorization "creal[e) very nearly plenary presidential power to conduct the present war on terrorism, through the use ofmilitary and other means, against enemies both abroad and possibly even within the borders of the United States, as identified by the President, and without apparent limitation as to duration, scope, and tactics." Michael Stokes Paulsen, Y onngstown Goes to War, 19 Cons!. Comment. 215,222-23 (2002); see also id. at 252 (stating that the Authorization "constitutes a tru1y extraordinary congressional grant to the President of extraordinary discretion in the use of military power for an indefinite period of time"), (U)
The application ofsignals intelligence activities to international communications to detect communications between enemy forces and persons within the United States should be understood to fall within the Congressional Authorization because intercepting such conununications has been a standard practice of Commanders in Chiefin past major conflicts

29

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where there was any possibility of an attack on the United States. As early as the Civil War, the "advantages of intercepting military telegraphic communications were not long overlooked. (Confederate] General Jeb Stuart actually had his own personal wiretapper travel along with him in the field." Samuel Dash et al., The Eavesdroppers 23 (1971 ). Shortly after Congress declared war on Germany in World War I, President Wilson (citing only his constitutional powers and the declaration of war) ordered the censorship of messages sent outside the United States via submarine cables, telegraph and telephone lines. See Exec. Order No. 2604 (Apr. 28, 1917) (attached at Tab G).z3 A few months later, the Trading with the Enemy Act authorized govenunent censorship of"communications by mail, cable, radio, or other means of transmission passing between the United States and any foreign country." Pub. L. No. 65-91, § 3(d), 40 Stat. 4I l, 4!3 (19 I7). On December 8, 1941, the day after Pearl Harbor was attacked, President Roosevelt gave the Director of the FBI "temporary powers to direct all news censorship and to
an coutrol other telecommunications traffic in and out ofU1e United States." Jack A. Gottschalk,
"Consisle/11 with Security" . .. A Histo1y ofAmericau Militmy Press Ceusorship, 5 Conun. & L. 35, 39 (1983) (emphasis added); see also Memorandum for the Secretary of War, Navy, State, Treasury, Postmaster General, Federal Communications Cormnission, from Franklin D. Roosevelt (Dec. 8, 1941), in Official and Confideutial File ofFBIDirector J.· Edgar Hoover, Microfihn Reel 3, Folder 60 (attached at Tab I). President Roosevelt soon supplanted that temporary regime by establishing an Office ofCensorship in accordance with the War.Powers Act ofl941. See Pub. L. No. 77-354, § 303,55 Stat. 838, 840-41 (Dec. 18, 1941); Gottschalk, 5 Conun. & L. at 40. The censorship regime gave the govemment access to "communications by mail, cable, radio, or other means oftransmission passing between the United States and any foreign country." Id.; see also Exec. Order No. 8985, § l, 6 Fed. Reg. 6625, 6625 (Dec. 19, 1941) (attached at Tab J). In addition, the United States government systematically listened surreptitiously to electronic conunm1ications as part of the war effort. See Dash, Eavesdroppers at 30 ("During [World War II] wiretapping was used extensively by military intelligence and secret service personnel in combat areas abroad, as well as by the FBI and secret service in this country."). (-'F8118l· b1, b3 i!NF)

In light of such prior wartime practice, the b1, b3 activities conducted b1, b3 appear to fit squarely within the sweeping terms of the Congressional
Authorization. The use of signals intelligence to identify and pinpoint the enemy is a traditional component ofwartime military operations employed to defeat the enemy and to prevent enemy attacks in the United States. Here, as in other conflicts, it happens that the enemy may use public communications networks, and some ofthe enemy may already be in the United States. Wltile fuose factors may be present in this conflict to a greater degree than in the past, neither is novel. Moreover, both factors were well known at the time Congress acted. Wartime interception of intemational communications on public networks to identifY communications that may be of assistance to the enemy should thus be understood as one of the standard methods of dealing

" The scope of the order was later extended to encompass messages sent to "points without the United States or to points on or near the Mexican border tlrrough which messages may be despatched for purpose of evading the censorship herein provided." Exec. Order No. 2967 (Sept. 26, 1918) (attached at Tab H). ('fSIISI· b1, b3 IINF)

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I

with the enemy that Congress can be presumed to bavc authorized in giving its approval to "all necessary and appropriate force" that the President would deem required to defend the Nation.

Congressional Authorization§ 2(a) (emphasis added)."

(=FSII&l·

13 b ,b

'INF)

b1, b3

moreover, is specifically targeted at

communications for which there is a reason to believe that one of the communicants is an agent

of a! Qaeda or one of its affiliated organizations. The b1 • b3 is thus, as the terms of

the Congressional Authorization indicate, directed "against those. , . organizations, or persons

[the President] determines planned, authorized, committed, or aided the terrorist attacks that

occurred on September I 1, 2001" and is undertaken "in order to prevent any future acts of

intemational terrorism against the United States."25 Congressional AuU10rization § 2(a). As

noted above, section 111 ofFISA, 50 U.S.C. § 1811, provides that U1e President may undertake

electronic surveillance without regard to the restrictions in FISA for a period of I5 days after a

congressional declaration of war. The legislative history ofFISAindicates that this exception

was limited to 15 days because that period was thought sufficient for the President to secure

legislation easing the restrictions ofFISA for the conflict at hand. See H.R. Conf. Rep, No. 95-

1720, at 34, repri11ted in 1978 U.S.C.C.A.N. 4048, 4063 (stating that "the conferees intend that

this period will allow time for cousideration of any amendment to this act that may be

appropriate during a wartime emergency"). The Congressional Authorization functions as

precisely such legislation: it is emergency legislation passed to address a specific anned conflict

and expressly designed to authorize whatever military actions the Executive deems appropriate to

safeguard the United States. In it the Executive sought and received a blanket authorization from

Congress for all uses of the military agaiust al Qaeda that might be necessary to prevent future

terrorist attacks :~gains! the United States. The mere fact that the Authmization does not

expressly amend FISA is not materiaL By its plain tem1s it gives clear authorization for "all

necessary and appropriate force" against al Qaeda that the President deems required "to protect

United States citizens both at home and abroad" from those (including al Qaeda) who "planned,

authorized, connnitted, or aided" the September 11 attacks. Congressional Authorization pmbl.,

"In other contexts, we have taken a similar approach to intetpreting the Congressional Authorization. 11ms, for example, detaining enemy combatants is also a standard part of warfare. As u result, we have concluded
that the Congressional Authorization expressly authorizes such detentions, even ofAmerican citizens, See
Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairn, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Applicability of /8 U.S. C. § 4001(a) to Military Detentlo11 ojU11ited States Citizens 6 (June 27, 2002); accord Hamdi v, RumifeTd, 316 F.3d 450,467 (4th Cir, 2003) (holding that "capturing and detaining enemy combatnnts is an inl1erent part ofwarfare" and that the "'necessary and appropriate force' referenced in the congressional resolution necessarily includes" such ac-tion), cert. grantedt 124 S. Ct. 981 (2004). But see Padi/Ta v, RumsfeTd, 352 F.3d 695, 722-23 (2d Cir. 2003) (holding tha~ except "in the battlefield oontext where detentions are necessary to carry out the war," the Congressional Authorization is not sufficiently "clear" and "unmistakable" to override tl1e restrictions on detaining U.S. citizens in § 4001 ), cert. grallted, 124 S. Ct. 1353 (2004). (U)

"As noted above, see supra pp. 16, 17,

b1, b3

is limited to

conununicat!ons suspected to be those of al Qaeda, al Qaeda-affi!inted organizations and other international terrorist

groups that the President determines both (i) are in anned conflict with tl1.e United States and (ii) pose a tlueat of

hostile action within the United States.

b1, b3

('fSIISf. b1' b3f/NF)

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§ 2(a). 11 is perfectly natural that Congress did not attempt to single out into subcategories every aspect of the use ofthe armed forces it was authorizing, for as the Supreme Court has recognized, even in normal times outside the context of a crisis "Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take." Dames & Moore v. Regan, 453 U.S. 654,678 (1981). Moreover, when dealing with military affairs, Congress may delegate in broader tem1s than it uses in other areas. See, e.g., Loving v. United Stales, 517 U.S. 748, 772 (1996) (noting that "the same limitations on delegation do nntapply" to duties that are linked to the Commander-in-Chiefpower); cf. Zemel v. Rusk, 381 U.S. 1, 17 (1965) ("[B]ecnuse of the changeable and explosive nature ofcontemporary intemational relations ... Congress- in giving the Executive authority over q~atters offoreign affairs- must of necessity paint with a bntsh broader than that it customarily wields in domestic areas."), Thus, the Congressional Authorization can be treated as the type of wartime exception that was contemplated in FISA's legislative history. Even ifFISAhad not envisioned legislation limiting the application ofFISA in specific conflicts, the Congressional Authorization, as a later-in-timeand arguably more specific- statute must prevail over FISA to the extent of any inconsistency.26 (TS//SI b1, b3 //NF)

The Congressional Authorization contains another provision that is particularly significant in this context. Congress expressly recognized that ''the President has authority nuder the Constitution to take action to deter and prevent acts ofinternational terrorism against the United States." Congressional Authorization, pmbl. TI~at provision gives express congressional recognition to the President's inherent constitutional authority to take action to defend the United States even without congressional support. That is a striking recognition ofpresidential authority from Congress, for while the courts have long acknowledged an inherent authority in the President to take action to protect Americans abroad, see, e.g., Durand v. Hollins, 8 F. Cas. 111, 112 (C.C.S.D.N.Y. 1860) (No. 4186), and to protect the Nation. from attack, see, e.g., The Prize Cases, 67 U.S. (2 Black) 635, 668 (1863), at least since the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S. C. §§ 1541-1548, there has been no comparable recognition ofsuch inherent authority by Congress, and certainly not a sweeping recognition of authority such as that here. Cf. 50 U.S.C. § 1541(c) (recognizing President's inherent constitutional authority to use force in response to an attack on the United Stales). This. provision cannot be discounted, moreover, as mere exuberance in the immediate aftermath. of September 11, for the same terms were repeated by Congress more than a year later in the Authorization' for Use ofMilitary Force Against Iraq Resolution of2002. Pub. L. No. 107-243,

" lt is true that repeals by implication are disfavored and we should attempt to construe two statutes as being "capable of co-existence." Ruckelshaus v. Monsanto, 467 U.S. 986, 1017, 1018 (1984). In this instance, however, the ordinary restrictions inFISA ca•mot continue to apply if the Congressional Authorization is appropriately construed to have its full effect. The ordinary constraints in FlSA would preclude the President from doing precisely what the Congressional Authorization allows: using "all necessary and appropriate force ... to prevent any futuro acts of intemational terrorism against the United States" by al Qaeda. Congressional Authorization § 2(n). Not only did the Congressional Authorization come later than FISA, but it is also more
specific in the sense that it applies only to a particular conl!ict, whereas FISA is a general statute intended to govern al/"electronic SUIVeillance" (as deftned in 50U.S.C. § 1801(0). IfFlSA and the Congressional Authorization "irreconcilabl[y] conflict," then the Congressional Authorization must prevail over FISA to ·~1, G'Jient of the inconsistency. See Radzanower ''· Touche Ross & Co., 426 U.S. 148, 154{1976). '(TS11SI- /il'lF)

32

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pmbl., 116 SiaL 1498, 1500 (Oct. 16, 2002)("[T]he President has authority under lhe Constitution to take action in order to deter and prevent acts of international tenorism against the United States ...."). That recognition of inherent authority, moreover, is particularly significant in !he FISA context because, as explained above, one of the specific amendments implemented by FISA was removing any acknowledgment from section 2511(3) of title 18 of the Executive's inherent constitutional authority to conduct foreign intelligence surveillance. At least in the context oflhe conflict with al Qaeda, however, Congress appears to have acknowledged a sweeping inherent Executive authority to "deter and prevent" attacks that logically should include the ability to cany out signals intelligence activities necessary to detect such planned attacks. (ts/ISI- b1, b3 1/NF)

To be sure, the broad construction of the Congressional Authorization outlined above is

not without some difficulties. Some countervailing considerations might be raised to suggest

that the Authorization should not be read to extend into the field covered by FISA. ln particular,

shortly after the Authorization was passed Congress tumed to consider a number of legislative

proposals from the Administration, some ofwhich specifically amended FISA. See, e.g., USA

PATRIOT Act, Pub. L. No. 107-56, § 218, 115 Stat. 272,291 (Oct. 26, 2001) (amending section

I04(a)(7)(B) ofFISA to require that the acquisition offoreign intelligence infonnation be a

"significant purpose" of the surveillance order being sought, rather than "the purpose"). Thus, it

might be argued that the Congressional Authorization cannot properly be construed to grant the

President authority to undertake electronic swveillance without regard to the restrictions in FISA

because, ifthe Congressional Authorization actually had applied so broadly, the specific

amendments to FISA that Congress passed a few weeks later in the PAUUOT Act would have

been superfluous.

(T8118!-

1 3 b ·b

1/NF)

·

We do not think, however, that the amendments to FlSA in the PATRIOT Act can justify narrowing the broad terms ofthe Congressional Authorization, To start with, the Authorization addresses the use of the armed forces solely in the context of the particular armed conflict of which the September 11 attacks were a part. To come within the scope ofthe Authorization, surveillance activity must be directed "against those nations, organizations, or persons [the President] detem1ines plam1cd, authorized, committed, or aided the terrorist attacks that occnned on September 11, 2001," Congressional Authorization§ 2(a). The Authorization thus eliminates the restrictions ofFISA solely for that category of foreign intelligence swveillance cases. Subsequent amendments to FISA itself, however, modified the authorities for foreign intelligence swveillance in all cases, whether related to the particular armed conflict with al Qaeda or not. GivCll the broader impact ofsuch amendments, it cannot be said that they were superfluous even ifthe Congressional Authorization broadly authorized electronic surveillance
directed against a! 'Qaeda and affiiiated organizations. ff-811SI· bj, b3 1/NF)

That understanding is bolstered by an examination of the specific amendments to FISA that were passed, because each addressed a shortcoming in FISA that warranted a remedy for all efforts to gather foreign intelligence, not just for efforts in the context of an armed conflict, much less the present one against at Qaeda. Indeed, some addressed issues that had been identified as requiring a legislative remedy long before the September ll attacks occurred. For these

33 !f-0-P SEGRE'r/b1, b3 1/GOl'IHN'f-

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b1,b3
amendments, the September II attacks merely served as a catalyst for spurring legislative change that was required in any event. For example, Congress changed Ute standard required for the certification from the government to obtain a FlSA order from a certification that "the purpose" of the surveillance was obtaining foreign intelligence to a certification that "a significant putpose" of the surveillance was obtaining foreign intelligence, See USA PATRIOT Act §218, 115 Stat. at 291 (codified at 50 U.S.C. §§ 1804(a)(7)(B), 1823(a)(7)(B)). That change was designed to help dismantle the "wall" that had developed separating criminal investigations from foreign intelligence investigations within the Department of Justice. See generally In reSealed Case, 310 F.3d 717, 725-30 (Foreign Intel. Surv. Ct. ofRev. 2002). The "wall" had been identified as a significant problem hampering the government's efficient use offoreign intelligence information well before the September 11 attacks and in contexts unrelated to terrorism. See, e.g., Final Report ofthe Attorney General's Review Temn 011 the Handling ofthe Los Alamos National Laboratory Investigation 710, 729, 732 (May 2000); General Accounting Office, FBI Intelligence Investigations: Coordination Within Justice on Counterintelligence Criminal Matters Is Limited (GA0-01-780) 3, 31 (July 2001). Indeed, this Office was asked as long ago as 1995 to consider whether, under the terms ofFISA as it then existed, an application for a surveillance order could be successful without establishing that the "primary" purpose of the surveillance was gathering foreign intelligence. See Memorandwn for Michael Valis, Deputy Director, Executive Office for National Security, from Walter Dellinger, Assistant Attorney General, Office ofLegal Counsel, Re: Standards for Searches Under Foreign Intelligence Surveillance Act (Feb. 14, 1995). The PATRIOT Act thus provided the opportunity for addressing a longstanding shortcoming in FISA that had an impact on foreign intelligence gathering generally. (U)
Similarly, shortly after the PATRIOT Act was passed, the Administration sought additional legislation expanding to 72 hours (from 24 hours) the time period the government has for filing an application with the FISC after the Attorney General has authorized the emergency initiation ofelectronic surveillance. See Intelligence Authorization Act for Fiscal Year 2002, Pub. L. No. 107-108, § 314(a), 115 Stat. 1394, 1404 (Dec. 28, 2001). That change was also needed.for the proper functioning ofF!SA generally, not simply for surveillance of agents of a! Qaeda. In the wake of the September 11 attacks, there was bound to be a substantial increase in the volume of surveillance conducted under FISA, which would strain existing resources. As a result, it was undoubtedly recognized that, in order for the emergency authority to be useful as a practical matter in any foreign intelligence case, the Department ofJustice would need more than 24 hours to prepare applicationS after initiating emergency surveillance. Sin1ilar broadly based considerations underpinned the other amendments to FISA that were enacted in the fall of2001. ('1'8#8I- b1. b3 'INF)
As a result, we conclude that the enactment of amendments to FISA after the passage of the Congressional Authorization does not compel a narrower reading of the broad terms of the Authorization. The unqualified tem1s of the Congressional Authorization are broad enough on their face to include authority to conduct signals intelligence activity within the United States. We believe that the Congressional Authorization can thus be read to provide specific authority during this armed conflict that overrides the limitations in FISA. The Supreme Court has

34 'f-QP SECRE'f// b1• b3 /COMIN'f..

b1,b3

/NOFORN

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 30 of 74

TOP SECRET, b1, b3 //COI\HNT

b1, b3

IINOFOR."l

repeatedly made clear that in the field of foreign affairs and particularly in the field of war

powers and national security, congressional enactments will be broadly constmed where they

indicate suppmi for the exercise of Executive authority. See, e.g., Haig v. Agee, 453 U.S. 280,

293-303 (1981); United States ex rei. Knauffv. Shaughnessy, 338 U.S. 537,543-45 (1950); cf

Agee, 453 U.S. at 291 (in "the areas of foreign policy and national security ... congressional

silence is not to be equated with congressional disapproval"); Dames & Moore v. Regan, 453

U.S. 654, 678-82 {1981) (even where there is no express congressional authorization, legislation

in related field may be construed to indicate congressional acquiescence in Executive action).

Here, the broad tenns of the Congressional Authmization are easily read to encompass authority

for signals intelligence activities directed against a! Qaeda and its affiliates.

(!:fS!f&t

13 b ,b

1/NF)

2.

At a n_Iinimum, the Congressio~al Autlt~rization bolsterU~~ ~ase for

applYing the canon of constitutional avmdance (-F&I/8I·

/NF)

Even if we did not believe that the Congressional Authorization provided a clear result on this point, at the very least the Congressional Authorization- which was expressly designed to give the President broad authority to respond to the threat posed by al Qaeda as he saw fitcreates a significant ambiguity concerning whether the restrictions ofFISA apply to electronic surveillance undertaken in the context of the conflict with a! Qaeda. That ambiguity decisively lips the scales in favor of applying the canon ofconstitutional avoidance to construe the Congressional Authorization and FISA in combination so that the restrictions ofFISA do not apply to the President's actions as Commander in Chiefin attempting to thwart further terrorist attacks on the United States. As noted above, in this wartime context the application ofFISA to restrict the President's ability to conduct surveillance he deems necessary to detect and disrupt fmther attacks would raise grave constitutional questions. The additional ambiguity created hy the Congressional Authorization suffices, in our view, to warrant invoking the canon of constitutional avoidance and thus justifies reading the Congressional Authorization to eliminate the constitutional issues that would otherwise arise ifFISA were construed to limit the Commander in Chiefs ability to conduct signals intelligence to thwart terrorist attacks. Application of the canon is particularly warranted, moreover, given Congress's express recognition in the tenms of its Authorization that the President has inherent authority under the Constitution to take steps to protect the Nation against attack. The final preambulatory clause of the Authorization squarely states that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism- against the United States." Congressional·Authorization pmbl. As conunentators have recognized, this clause "constitutes an extraordinarily sweeping congression<\1 recognition of independent presidential constitutiolfal power to employ the war power to combat terrorism." Paulsen, 19 Canst, Comment. at 252. That congressional recognition of inherent presidential authority bolsters the conclusion that, when FISA and the Congressional Authorization are read together, the canon ofconstitutional avoidance should he applied because it cannot he said that Congress has unequivocally indicated an intention to risk a constitutionally dubious exercise ofpower hy restricting the authority of U1e Commander in Chief to conduct signals intelligence in responding to the terrorist attacks. (~JI.&I- b1, b3 INF)

35
TOP-SEC-RE'ff/ b1, b3'€0MINT

b1, b3

INOFORN

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 31 of 74

b1,b3

'/NGFeRN

In sum, the constitutional avoidance canon is properly applied to conclude that the

·Congressional Authorization removes the restrictions ofFISA for electronic surveillance

undertaken by the Department of Defense and directed "against those nations, organizations, or

persons [the President] determines planne.d. authorized. committed. or aided the terrorist attacks

that occurred on September ll, 2001."21

b1• b3• b5

fits that description.28 (TS/181 b1. b3 IfNI<)

b1,b3, b5

As a result, we believe

that a thorough and prudent approach to analyzing the legality of

b1, b3

must also

take into account the possibility that FTSA may be read as prohibiting the electronic surveillance

activities at issue here.

We tnrn to that analysis below.

ff&/1&1-

13 b •b

'!NF)

b1,b3,b5

"

b1.b3,b5

36 !J!~/. b1, b3 //GeMINI'-

b1,b3

//NGFGRN

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 32 of 74

TOP SECRET/ib1, b3 //€eMfN'f~

b1,b3

//NOFOR."l

C. If FISA Purported To Prohibit Targeted, Wartime Surveillance Against the

Enemy Under

b1, b3

, It Would Be Unconstitutional as Applied

(TSl/SI· b1. b3 IINF)

Assuming that FISA cannot be internreted to avoid the constitutional issues that arise if it

does, in fact, prohibit

b1' b3, b5

we must next examine

whether FISA, as applied in the particular circumstances ofsurveillance directed by the

Commander in Chief in the midst of an a1med conflict and designed to detect and prevent attacks

upon the United States, is unconstitutional.

We conclude that it is.

(TS/181

3 bi, b

//NF)

1. Even in peacetime, absent congressional action, the President has
inherent constitutional authority, consistent with the Fourth
Amendment, to OI'det• warrantless foreign intelligence surveillance
(TSIIS-1- b1' b3 lfNF)

We begin our analysis by setting to one side for the moment both the particular wartime context at issue here and the statutory constraints imposed by FlSA to examine tl1e pre-existing constitutional authority ofthe President in this field in the absence of any action by Congress. It has long been established that, even in peacetime, the President has an inherent constitutional authority, consistent with the Fourth Amendment, to conduct warrantless searches for foreign intelligence purposes. The Constitution vests power in the President as Commander in Chief of the armed forces, see U.S. Const art. II, § 2, and, in making him Chief Executive, grants him authority over tl1e conduct of the Nation's foreign affairs. As the Supreme Court has explained, "[t]he President is the sole organ ofthe nation in its external relations, and its sole representative with foreign nations.'' United States v. Curtiss-Wright Export Corp., 299 U.S. 304,319 (1936) (internal quotation marks and citations omitted). These sources ofauthority grant the President inherent power both to take measures to protect national security information, see, e.g., Department ofthe Navy v. Egan, 484 U.S. 518, 527 (1988), and more generally to protect the security ofthe Nation from foreign attack Cf The Prize Cases, 67 U.S. (2 Black) 635, 668 (1863). To carry out these responsibilities, the President must have authority to gather information necessary for the execution of his office. The Founders, after all, intended the President to be clothed with all authority necessary to carry out the responsibilities assigned to him as Commanderin Chief and Chief Executive. See, e.g., The Federalist No. 23, at 147 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (explaining that the federal government will be "cloathed with all the powers requisite to the complete execution ofits trust"); id. No. 41, at 269 (James Madison) ("Security against foreign danger is one of the primitive objects ofcivil society. , . . The powers requisite for attaining it must be effectually confided to the fcederal councils."); see also Johnson v. Eisentrager, 339 U.S. 763, 788 (1950) (''The first ofthe enumerated powers of the President is ti!Bt he shall be Commander-in-Chiefof the Army and Navy ofthe United States. And, of course, grant ofwar power includes all that is necessary and proper for carrying these powers into execution." (citation omitted)). Thus, it has long been recognized that he has authority to hire spies, see, e.g., Tolle!l v. United States, 92 U.S. 105, I06 (1876), and his autl10rity to collect intelligence necessary for the conduct offoreign affairs has frequently been acknowledged. See Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S.

37

WP--&OORE-'F/t:b1, b3rJOOJ'AIN'f_,

bi,b3

I{J>IDFGHN

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 33 of 74

'fOP SEGRE'F/Ib1, b31t€0MH'H-:

b1, b3

I !NO-FOR:!'<

103, 111 (1948) ("The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be
published to the world."); Curtiss-Wright, 299 U.S. at 320 ("He has his confidential sources of
information. l-Ie has his agents in the fonn of diplomatic, consular and other offi<;ials."). ('ffiffSI- b1, b3 lfNF)

When it comes to collecting foreign intelligence information within the United States, of

course, the President must exercise his inherent authorities consistently with the requirements of

th!l Fourth Amendment.29 Det~:rmining the scope of the President's inherent constitutional

authority in this field, therefore, requires analysis of the requirements of the Fourth Amendment

-at least to the extent of determining whether or not the Fourth Amendment imposes a warrant

requirement on searches conducted for foreign intelligence purposes. If it does, then a statute

such as FiSA that also imposes a procedure for judicial authorization cannot he said to encroach

upon authorities the President would otherwise have.30

('I'-8fi&I·

13 b ,b

1/NF)

The Fourth Amendment prohibits "unreasonable searches and seizures" and directs that "no Warrants .shall issue, but upon probable cause." U.S. Canst. amend. IV. In "the criminal context," as the Supreme Court has pointed out, "reasonableness usually requires a showing of
probable cause" and a warrant. Board o[Educ. v. Earls, 536 U.S. 822, 828 (2002). The warrant
.and probable cause requirement, however, is far from universal. Rather, the "Fourth Amendment's central requirement is one ofreasonableness," and the rules the Court has
developed to implement that requirement"[s]ometimes ... r<:quire warrants." illinois v. McArthur, 531 U.S. 326, 330 (2001); see also, e.g.; Earls, 536 U.S. at 828 ("The probable cause
standard, however, is peculiarly related to criminal investigations and may he unsuited to determining the reasonableness of administrative searches where· the Goverrnnent seeks to
prevent the developmentofhazardous conditions." (emphasis added; internal quotation marks
omitted)). (U)

In particular, the Supreme Court has repeatedly made clear that in situations involving "special needs" that go beyond a routine interest in law enforcement, there may be exceptions to the warrant requirement. Thus, the Court has explained that there are circumstances '"when special needs, beyond the normal need for law enforcement, make the warrant and probable-
cause requirement impracticable."' Vernonia Sch. Dist. 47Jv. Acton, 515 U.S. 646,653 (1995) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)); see also McArthur, 531 U.S. at 330
("We nonetheless have made it clear that there are exceptions to the warrant requirement. When faced with special law enforcement needs, diminished expectations ofprivacy, minimal

"The Fourth Amendment does not protect aliens outside the United States. See United States v. VerdugoUrquidez, 494 U.S. 259 (1990). (U)

"We assume for purposes 0fthe discussion here that

b1. b3

is subject

to the requirements of the Fourth Amendment. In Part V of this memorandum, we address the reasonableness under

the Fourth Amendment

b1 • b3

In addition, we note

that there may be a basis for concluding that

b1• b3

is a military operation to which the Fourth

Amendment does not even apply. See infra n.84. (-T~t'Sl· b1, b3 'lNF)

38
~-lfb1, b3I/GOMIN-'f...-

bl. b3

1/NOOORN

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 34 of 74
b1, b3

intrusions, or the like, the Court has found that cettain general, or individual, circumstances may render a warrantless search or seizure reasonable."), It is difficult to encapsulate in a nutshell the different circumstances the Court has found qualifying as "special needs" justifying wan·antless searches. But generally when the government faces an increased need to be able to react swiftly and flexibly, or when there are interests in public safety at stake beyond the interests in law enforcement, the Court has found the warrant requirement inapplicable. (U)

Thus, among other things, the Court has pem1itted warrantless searches to search property ofstudents in public schools, see New Jersey v. T.L. 0., 469 U.S. 325, 340 (19.85) (noting that warrant requirement would "unduly interfere with the maintenance ofthe£wift and infom1al disciplinary procedures needed in the schools"), to screen athletes and students involved in extracurricular activities at public schools for drug use, see Vernonia, 515 U.S. at 654-655; Earls, 536 U.S. at 829-38, and to conduct drug testing of railroad personnel involved in train accidents,
see Skinner v. Railway Labor Executives' Ass '11, 489 U.S. 602, 634 (1989). Indeed, in many
special needs cases the Court has even approved suspicionless searches or seizures. See, e.g., Earls, 536 U.S. at 829-38 (suspicionless drug testing of public school students involved in extra-
curricular activities); Michiga11 Dep 't ofState Police v. Sitz, 496 U.S. 444, 449"55 (1990) (road block to check all motorists for signs of drunken driving); United States v. Martinez-Fuerte, 428 U.S. 543, 562 (1976) (road block nearthe border to check vehicles for illegal immigrants). But SI!JeCity ofIndianapolis v. Edmond, 531 U.S. 32,41 (2000) (striking down use ofroadblock to
check for narcotics activity because its "primary purpose was to detect evidence of ordinary criminal wrongdoing''). (U)

The field offoreign intelligence collection presents another case of"special needs beyond

the t;torrnal need for Jaw enforcement"wheretheFourthAmendment's touchstone of

reasonableness can be satisfiedwithout resort to a warrant. In foreign intelligence investigations,

the targets ofsurveillance are agents of foreign powers who may be specially trained in

concealing their activities from our government and whose activities may be particularly difficult

..~:

to detect. The Executive requires a greater degree of flexibility in this field to respond with

speed and absolute secrecy to the ever-changing array of foreign threats it faces, The object of

searches in this field, moreover, is securing information necessary to protect the national security

from the hostile designs of foreign powers, including even the possibility of a foreign attack on the N atipn. ('FS/ISI· b1• b3 1/NF)

Given those distinct interests at stake, it is not surprising that every federal court that has
ruled on the question has concluded that, even in peacetime, the President has. inherent cqnstitutional authority, consistent with the Fourth Amendment, to conduct searches for foreign intelligence purposes without securing a judicial warrant. See United States v. Clay, 430 F.2d 165, 172 (5th Cir. 1970); United States v. Brown, 484 F.2d 418 (5th Cir. 1973); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en bane); United States v. Buqk, 548 F.2d 871, 875 (9th Cir. 1977); UnitedStates v; Truong Dinlt Hung, 629 F.2d 908 (4th Cir. 1980). But cf. Zweibon v. Mite/tell, 516 F.2d 594 (D.C. Cir. 1975) (e11 bane) (dictum in plurality opinion suggesting that
warrant would be required even in foreign intelligence investigation). tT-sHlli· b1, bS 1/NF)

39 WI'-&EGR:E'l'lt b1, b3f/Gel'&IN'f....

b1, b3

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 35 of 74

TOP §ECRET/b1, b3 //€0MlNT

b1, b3

1/NOFORN

To be sure, the Supreme Court bas left this precise question open. In United States v. United Stales District Court, 407 U.S. 297 (1972) (Keith), the Supreme Court concluded that the Fourth Amendment's warrant requirement applies to investigations of purely domestic threats to security- such as domestic terrorism. The Court made clear, however, that it was not addressing Executive authority to conduct foreign intelligence surveillance: "(T]he instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, witlrin or without this country." Id. at 308; see also id. at 321-322 & n.20 ("We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents."). ('ffilf&I· b1· b3 /JNF)

Indeed, four of the courts ofappeals noted above decided- after Keith, and expressly

taking Keith into account- that the President bas inherent authority to conduct warrantless

surveillance in the foreign intelligence context. As the Fourth Circuit observed in Truong, "the

needs of the executive are so compelling in the area of foreign intelligence, unlike the area of

domestic security, that a uniform warrant requirement would ... unduly frustrate the President in

carrying out his foreign affairs responsibilities." 629 F.2d at 913 (internal quotation marks

omitted). The court pointed out that a warrant requirement would be a hurdle that would reduce

t11e Executive's flexibility in responding to foreign threats that "require the utmost stealth, speed,

and secrecy." !d. It also would potentiallyjeopardize security by increasing "the chance of leaks

regarding sensitive executive operations." Jd. It is true that the Supreme Court had discounted

such concerns in the domestic security context, see Keith, 407 U.S. at 319-20, but as the Fourth

Circuit explained, in dealing with hostile agents of foreign powers, the concerns are arguably

more compelling. More important, in the area of foreign intelligence the expertise of the

Executive is paramount. While courts may be well-adapted to ascertaining whether there is

probable cause to believe that a crime under domestic law has been committed, they would be ill-

equipped to review executive determinations concerning the need to conduct a particular search

or surveillance to secure vital foreign intelligence. See Truong, 629 F.2d at 913-14. Cf. Curtiss-

Wright, 299 U.S. at 320 ("(The President] has th~;: better opportunity of knowing the conditions

which prevail in foreign countries, and especially is this true in time ofwar. He has his

confidential sources of information."). It is not only the Executive's expertise that is critical,

moreover. As the Fourth Circuit pointed out, the Executive bas a constitutionally superior

position in matters pertaining to foreign affairs and national security: "Perhaps most crucially,

the executive branch not only has superior expertise in the area of foreign intelligence, it is also

constitutionally designated as the pre-enrinent authority in foreign affairs." Truong, 629 F.2d at

914. The court thus concluded that there was an important separation of powers interest in not

having the judiciary intrude on the field of foreign intelligence collection: "[T]be separation of

powers requires us to acknowledge the principal responsibility of the President for foreign affairs

and concomitantly for foreign intelligence surveillance," !d.; cf. liaig v. Agee, 453 U.S. 280, 292

(1981) ("Matters intimately related to foreign policy and national security are rarely proper

subjects for judicial intervention.").

We agree with that analysis.31

('f..flHS.J.

13 b ,b

IJNF)

" In addition, there is a further basis on which Keith is readily distinguished. As Keilh made clear, one of the significant concerns driving the Court's conclusion in the domestic security context was the inevitable connection between perceived threats to domestic security and political dissent. As the Court explained: "Fourth

40 TOP SEGRE'f/1 b1, b3 '/COMINT

b1, b3

'/NOFBRN

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 36 of 74

b1,b3

1/NOFORN

In the specific context oJ b1 • b3

moreover, the case for inherent executive

authority to conduct surveillance in the absence of congressional action is substantially stronger

for at least two reasons, First and foremost, all ofthe precedents outlined above addressed

inherent executive authority under the foreign affairs power to conduct surveillance in a routine

peacetime context." They did not even consider the authority of the Commander in Chief to

gather intelligence in the context of an ongoing a1med conflict in which the mainland United

States had already been under attack and in which the intel!igence-gall1ering efforts at issue were

designed to thwart further anned attacks. The case for inherent executive authority is necessarilv much stronger in the latter scenario, which is precisely the circumstance presented by b1' b3

(TSllSI b1, b3 IINF)

Second, it also bears noting that in the 1970s the Supreme Court had barely started to

develop the "special needs" jutispmdence ofwammtless searches under the Fourth Amendment.

The first case usually considered part of that line of decisions is U11ited States v. MartilleZ-

Fuerte, 428 U.S. 543, decided in 1976- after three courts ofappeals decisions addressing

warrantless foreign intelligence surveillance had already been handed down. The next Supreme

Court decision applying a rationale clearly in the line of"specialneeds" jurisprudence was not

until1985, see New Jersey v. T.L.O., 469 U.S. 325,33 and the jurisprudence was not really

developed until the 1990s. Thus, the courts ofappeals decisions described above all decided in

favor ofan inherent executive authority to conduct warrantless foreign intelligence searches even

before the Supreme Court had clarified the major doctrinal developments in Fourth Amendment

law that now provide the clearest support for such an authority.

('fSHSf.

13 b ,b

/INF)

Executive practice, ofcourse, also demonstrates a consistent understanding that the
President has inherent constitutional authority, in accordance with the dictates of the Fourth
Amendment, to conduct warrantless searches and surveillance within the United States for

Amendment protections become Ute more necessary when the targets of official surveillance may be those suspected of unorthodoxy in theitpolitlcal beliefs. 11te danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect'domestic security."' Keilil, 407 U.S. at 314; see also id. at 320 ("Security surveillances are especially sensitive because of tlte inherent vagueness of the domestic security concept, the necessarily broad and continuingnature of intelligence gathering, and the temptation to.utilize such surveillances to ovemee political dissent."). Survelliance ofdomestic groups necessarily raises a First Amertdment concern that generally is not present when the subjects of the surveillance are the agents of foreign powem.
bS

~

_ _~

One of lhe important factors driving the

Supreme Court's conclusion Uta! the warrant requirement s!tould apply in the domestic security context is thus simply abse9t in the foreign intelligence realm. ('fS!Ifi[. bi' b3 /NF)

took

32
place

The sutveillance in Truong1 while in 1977 and 1978, see 629 Fc2d at

in some sense connected to the Vietnam conflict 912, after lhe close of active hostilities. ('f8/ISI-

and
1 b'

its
3 b

aftemmth, INF)

"The tellD "special needs" appears to have been coined by Justice Blackmon in his concurrence in T.L.O.

See 469 U.S, at 351 (B1ackmun, J., concurring in judgment).

{'fS/ISI·

1 b·

3 b

/NF)

41 'FO:P-BEGRE'f/1 b1, b3'f00MIN'f.-

b1, b3

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 37 of 74

'F9-P--S-ECHET/,b1. b3 //COMIN'f-

b1, b3

//NOFORN

foreign intelligence purposes. Wiretaps for such purposes have been authorized by Presidents at

least since U1e administration ofRoosevelt in 1940. See, e.g., United States v. United States

District Court, 444 F.2d 651, 669-71 (6th Cir. 1971) (reproducing as an appendix memoranda

from Presidents Roosevelt, Truman, and Johnson). Before the passage of F!SA in 1978, all

foreign intelligence wiretaps and searches were conducted without any judicial order pursuant to

the President's inherent authority. See, e.g., Tmong, 629 F.2d at 912-14; United States v. Bin

Laden, 126 F- Supp. 2d 264,273 (S.D.N.Y.2000) ("Warrantless foreign intelligence collection

has been an established practice of the Executive Branch for decades."). When FISA was first

passed, moreover, it addressed solely electronic surveillance and made no provision for physical

searches. See Pub. L. No. 103-359, § 807, 108 Stat. 3423,3443-53 (1994) (adding provision for

physical searches). As a result, after a briefinterlude during which applications for orders for

physical searches were made to the FISC despite the absence of any statutory procedure, the

Executive continued to conduct searches under its own inherent authority. Indeed, in 1981, the

Reagan Administration, after filing an application with the FISC for an order authorizing a

physical search, filed a memorandum with the com1 explaining that the court had no jurisdiction

to issue the requested order and explaining that the search could properly be conducted without a

warrant pursuant to the President's inherent constitutional authority. SeeS. Rep. No. 97-280, at

14 (1981) ("The Department of Justice has long held the view that the President and, by

delegation, the Attorney General have constitutional authority to approve warrantless physical

searches directed against foreign powers or their agents for intelligence purposes.")- This Office

has also repeatedly recognized the constitutional authority ofthe President to engage in

warrantless surveillance and searches for foreign intelligence purposes.~4

(!fSIISI-

13 b ,b

1/NF)

b5

Intelligence- Warrantless Electronic Surveillance- Common Carriers, 2 Op. O.L.C. 123 (1978); Warrantless Foreign Intrlligence Sllrveillance- Use ofTelevision -Beepers, 2 Op. O.L.C. 14, 15 (1978) ("[T]he President can authorize warrantless electronic surveillance of an agent of a foreign power, pursuant to his constitutional power to gather foreign

42

l'-9P

SECREI'/1

1 b,

b31/COMINT

b1, b3

'INOFORN

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 38 of 74

'FOP SECRET/,b1, b3//CGMINf-

b1, b3

//l'IQFGRN

These examples, too, all relate to assertions of executive authority in a routine, peacetime context. Again, the President's authority is necessarily heightened when he acts during wartime as Conunander-in-Chief to protect the Nation from attack. Thus, not suzprisingly, as noted above, Presidents Wilson and Roosevelt did not hesitate to assert executive authority to conduct surveillance- through censoring communications- upon the outbreak of war. See supra p. 30. ('fS#&I· b1' b3 //NF)

2.

FISA is

unconstitutional

as

applied

in

this

context (!f..SII&I·

13 b ,b

//NF)

While it is thus tmcontroversial that the President has inlterent authority to conduct

warrantless searches for foreign intelligence purposes in the absence of congressional action, the

restrictions imposed in FISA present a distinct question: whether the President's constitutional

authority in this field is exclusive, or whether Congress may, through FISA, impose a

requirement to secure judicial authorization for such searches. To be more precise, analysis of

b1. b3

presents an even narrower question: namely, whether, in the context of an

ongoing anned conflict, Congress may, through FISA, impose restrictions on the means by

which the Commander in Chief may use the capabilities of the Department ofDefense to gather

intelligence about the enemy in order to thwart further foreign attacks on the United States.

(+81/Sl b1, b3 //NF)

As discussed below, the conflict ofcongressional and executive authority in this context presents a difficult question- one for which there are few ifany precedents directly on point in the history of the Republic. In almost every previous instance in which the country has been threatened by war or inuninent foreign attack and the President has taken extraordinary measures to secure the national defense, Congress has acted to support the Executive through affirmative legislation granting the President broad wartime powers,30 or else the Executive has acted in

intelligence."). ('1'8HSl· b1, b3JfNF}

b1,b3,b5

"As explained above, we believe that the better construction of the Congressional Authorization for Use

ofMilitary Force in the present conflict is that it also reflects precisely such a congressional endorsement of

Executive action and authorizes

bt • b3

In this part of our analysis,

however, we are assuming, in the alternative, that tlte Authorization cannot be read so broadly and that FISA by its

43
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INOFORN

exigent circumstances in the absence of any congressional action whatsoever (for example,

President Lincoln's actions in 1861 in proclaiming a blockade of the southem States and

instituting consmiption). In the classic separation of powers analysis set out by Justice Jackson

in Youngstown, such circumstances describe either "category I" situations- where the legislature

has provided an "express or implied authorization" for the Executive- or "category II" situations

-where Congress may have some shared authority over the subject, but has chosen not to

exercise it. See Youngstown Sheet & Tube Co. v. Sa~ryer, 343 U.S. 579,635-37 (1952); see also

Dames &Moore v. Regan, 453 U.S. 654,668-69 (1981) (generally following Jackson's

framework). Here, however, we confront an exercise of Executive authority that falls into

"category III'' of Justice Jackson's classification. See 343 U.S. at 637-38. The President (for

purposes of this argument in the alternative) is seeking to exercise his authority as Commander in

Chief to conduct intelligence surveillance that Congress has expressly resiricted by statute.

(+&1/SI- b1, b3 INF)

.

At hottom_ therefore, analysis of the constitutionality ofFISA in the context of b1' b3 centers on two questions: (i) whether the signals intelligence collection the President wishes to undertake is such a core exercise ofCommander-in-Chiefcontrol over the armed forces during armed conflict that Congress cannot interfere with it at all or, (ii) alternatively, whether the particular restrictions imposed by FISA are such that their application would impermissibly frustrate the President's exercise of his constitutionally assigned duties as Commander in Chief. ('fSIISI- b1• b3 'INF)

As a background for that context-specific analysis, however, we think it is useful first to

examine briefly the constitutional basis for Congress's asse1iion of authority in FISA to regulate

the President's inherent powers over foreign intelligence gathering even in the general, peacetime

context. Even in that non-wartime context, the assertion of authority in FISA, and in particular

the requirement that the Executive seek orders for surveillance from .Atticle ill courts, is not free

from constitutional doubt. Ofcourse, if the constitutionality ofsome aspects ofFISA is open to

any doubt even in the run-of-the-mill peacetime context, it follows afortiori that the legitimacy

of congressional encroachments on Executive power will only be more difficult to sustain where

they involve trenching upon decisiollB of the Commander in Chief in the midst ofa war. Thus,

after identifying some of the questions surrounding the congressional assertion ofauthority in

FISA Renerallv. we proceed to the specific analysis ofFISA as applied in the wartime context of

b 1 ' b3

('FSIIS:I· b1, b3 1/NF)

a. Even outside the context of wartime surveillance of the enemy, the scope of Congress's power to restl'lct the President's inherent authority to conduct foreign intelligence snrvelllnnce is unclear (-'F811&l.· b1· b3 //NF)

To frame the analysis of the specific, wartime operation of b1, b3

It IS

important to note at the outset that, even in the context of general foreign intelligence collection

tenus prohibits

b1,b3

absent an order from the FISC. (T-81/SI b1, b3 /JNF)

44

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S

ECR

E

l'

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b

1 ,

3 b

1/COMINT

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1/NOFOPJ!ol

in non-wartime situations, the source and scope ofcongressional power to restrict executive· action through FISA is somewhat uncertain. We start from the fundamental proposition that in assigning to the Presiderll as Chief Executive the preeminent role in handling the foreign affairs of the Nation, the Constitution grants substantive powers to the President. As explained above, the President's role as sole organ for the Nation has long been recognized as carrying with it substantive powers in the field ofnational security and foreign intelligence. This Office has traced the source of this authority to the Vesting Clause of Article II, which states that "[t]he executive Power shaJI be vested in a President of the United States of America." U.S. Const. art. II, § 1. Thus, we have explained that the Vesting Clause "has long been held to confer on the President plenary authority to represent the United States and to pursue its interests outside the borders of the country, subject only to limits specifically set forth in the Constitution itself and to such statutory limitations as the Constitution permits Congress to in1pose by exercising one of its enumerated powers" The President's Compliance with tire "Timely Notification" Requirement
ofSection50J(b) of/Ire National Security Act, 10 Op. O.L.C. 159, 160-61 (1986) ("Timely Notification Requirement Op."). Significantly, we have concluded that the "conduct ofsecret negotiations and intelligence operations lies at the very heart of the President's executive power." !d. at 165. The President's authority in this field is sufficiently comprehensive that the entire structure offederal restrictions for protecting national security information has been created ·solely by presidential orde~, not by statute. See generally Department ofthe Navy v. Egan, 484
U.S. 518, 527, 530 (1988); see also New York Times Co. v. U11ited States, 403 U.S. 713, 729-30
(1971) (Stewart, J., concurring) ("[I]t is the constitutional duty of the Executive- as a matter of sovereign prerogative and not as a matter of law as the courts know law- through the prqmulgation an~ enforcement of executive regulations, to protect the confidentiality necessary to carry out its responsibilities in the field of international relations and national defense."). Similarly, the NSA is entirely a creature ofthe Executive- it has no organic statute defining or limiting its functions. (tSI/81- bi •b3 1/NF)

Moreover, it is settled beyond dispute that, although Congress is also granted some powers in the area of foreign affairs, certain presidential authorities in that realm are wholly beyond the power of Congress to interfere with by legislation. For example, as the Supreme Court explained in Curtiss· Wright, the President "makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiations the Senate callllot intrude; and Congress itself is powerless to invade it." 299 U.S. at 319. Similarly, President Washington established early in the history of the Republic the Executive's absolute authority to maintain the secrecy ofnegotiations with foreign powers, even against congressional efforts to secure infonnation. Id. at 320-21 (quoting Washington's 1796 message to the House ofRepresentatives regarding documents relative to the Jay Treaty). Recognizing presidential authority in this field, this Office has stated that "congressional legislation authorizing extraterritorial diplomatic and intelligence activities is superfluous, and ... statutes infringing the President's inherent Article II authority would be Ullconstitutional." Timely Notification Requirement Op., 10 Op. O.L.C. at 164. (U)
Whether the President's power to conduct foreign intelligence searches within the United States is one of the inherent presidential powers with which Congress carmot interfere presents a

45 TOP SECRETh bi, b3 f/GOMINT

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'/NOFORN

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b1, b3

difficult question. It is not immediately obvious which of Congress's enumerated powers in the

field of foreign affairs would provide authority to regulate the President's use of constitutional

methods of collecting foreign intelligence. Congress has authority to"regulate Commerce with

foreign Nations," to impose "Duties,. Imposts and Excises," and to "define andpunish Piracies

and Felonies committed on the high Seas, and Offenses against the .Law ofNations." U.S. Const.

art.!, § 8, cls. 1, 3, 10. But none of those powers suggests a specific authority to regulate the

Executive's intelligence-gathering activities. Of course, the power to regulate both foreign and

interstate commerce gives Congress authority generally to regulate the facilities that are used for

carrying communications, and that may arguably provide Congress sufficient authority to limit

the interceptions the Executive can undertake. A general power to regulate commerce, however,

provides a weak basis for interfering with the President's preeminent position in the field of

national security and foreign intelligence. Intelligence gathering, after all, is as this Office has

stated before, at the "heart" of Executive functions. Sincethe time. of the Founding it has been

recognized that matters requiring secrecy- and intelligence in particular- are quintessentially

Executive functions. See, e.g., The Federalist No. 64, at 435 (John Jay) ("The conventionhave

done well therefore in so disposing of the power ofmaking treaties, that although the president

must in forming them act by the advice and consent of the senate, yet he will be able to manage

the business ofintelligence in such manner as prudence may suggest.").36

(-TSHSI-

1 3 b •b

I f:NF)

J6 Two other congressional po-wers ~ the power to -"make Rules for the _Government and:Regulation of the
land-and naval Forces,"·and the Necess·ary and Proper Clause, U.S. Const. arl I.§ 8., cis. 14~ 18- are even less likely sources for congressional authority in this context. ('FSIISI· b1· b3 1/NF)
As this Office has previously noted, the former clause should be construed as authorizing Congress to "prescrib[e]a code ofconduct. governing military life'' rather than to "control actual nrllitary operations." Letter for Hon. Arlen Specter, U.S. Senate, from Charles J, Cooper, Assistant Attorney General, Office of Legal CounselS (Dec. 16, 1987);see also Chappell v. Wallace, 462 U.S. 296, 301 {1983) (noting that the clause responded to the need to establish "rights, duties, and responsibilitiesin the framework of the military establishment, including regulations, procedures, and remedies related to military discipline"); cf. Memorandwn for William J. Haynes, Il, General Counsel, Deparlinent ofDefense, from JayS. Bybee, Assistant Attorney General, Office ofLegal Counsel, Re: Ifle President's Power as Commander in Chiefto Transfer CapturedTerrorists to the Control and Custody of Foreign Na.tions 6 (Mar. 13, 2002) (Congress's authority to.make rules for the government and regulation of the land and naval forces is limited to the discipline ofU;S. troops, and does not extend to "the roles of engagement and
treatment concerning enemy combatants"). (tJ) The Necessary and Proper Clause, byits own terms, allows Congress only to "carry[] into Execution"other
powers granted in the Coustitution. Such apower could no4 of course, be used to limit or impinge upon otle of those other powers (the President's inherent authority to conduct warrantless surveillance under the Commander-inChief power). Cf George K. Walker, UnitedStates National Security Law and United Nations Peacekeeping or Peacemaking Operations, 29 Wake Forest L. Rev. 435, 479 (1994) ("The [Necessary and Proper] clause authorizes Congress to act with respect to its own functions as well as those of other branches except where the Constitution for.bids it, or in the limited number oflnstances where exclusive power is specifically vested elsewhere. The power to preserve, protect, and defend, as Commander-in-Chief, is solely vested in the President. Tims, although the Congress might provide armed forces, Congress cannot dictate to the President how to use them.") (internal quotation marks and footnotes omitted); Saikrishna Prakash, The Essential Meaning ofExecutive Power, 2003 U. Ill. L. Rev. 701, 740 ("The Necessary and Proper Clause permits Congress to assist !he president in the exercise of his powers; it does not grant Congress a license to reallocate or abridge powers already vested by the Constitution."). (U)

46 'fGP-SEeRE'f/1 b1, b3//G0M-IN'f-

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TI1e legislative history ofFISA amply demonstrates that the constitutional basis for the

legislation was open to considerable doubt even at the time the statute was enacted and that even

supporters of the bill recognized that the attempt to regulate the President's authority in this field

presented an untested question of constitutional law that the Supreme Court might resolve by

finding the statute unconstitutional. For example, while not opposing the legislation, Attorney

General Levi nonetheless, when pressed by the Senate Judiciary Committee, testified that the

President has an inherent constitutional power in this field "which cannot be limited, no matter

what the Congress says." See Foreign Intelligence Surveillance Act of1976: Hearing Before the

Subcomm. 011 Crim. Laws and Procs. ofthe Senate Comm. ou the Judiciary, 94th Cong. 17

(1976) ("1976 FISA Hearing"). Similarly, former Deputy Attorney General Laurence Silberman

noted that previous drafts ofthe legislation had properly recognized that if the President had an

inherent power in this field- "inherent," as he put it, "meaning beyond congressional control"-

there should be a reservation in the bill acknowledging that constitutional authority. He

concluded that the case for such a reservation was "probably constitutionally compelling."

Foreign Intelligence Electronic Surveillance; Hearings Before the Subcomm. 011 Legislation of

the House Perm. Select Comm. on Intelligence 217, 223 (1978) (statement ofLaurence H.

Silbennan).37 Senator McClellan, a member of the Judiciary Conlll1ittee, noted his view that, as

of 1974, given a constitutional power in the President to conduct warrantless intelligence

surveillance, "no statute could change or alt.er it." 1976 FISA Hearing at 2. And even if the law

)lad developed since 1974, he still concluded in 1976 that "under any reasonable reading of the

relevant court decisions, this bill approaches the outside limits of our Constitutional power to

prescribe restrictions on andjudicial participation in the President's responsibility to protect this

country from threats from abroad, whether it be by electronic surveillance or other lawful

means.'' Jr}. Indeed, the Conference Report took the unusual step of expressly acknowledging

that, while Congress was attempting to foreclose the President's reliance on inherent

constitutional autl10rity to conduct surveillance outside the dictates ofFISA, "the establislm1ent

by this act ofexclusive means by which the President may conduct electronic surveillance does

not foreclose a different decision by the Supreme Court." H.R. Conf. Rep. No. 95-1720, at 35,

reprintetl in 1978 U.S.C.C.A.N. 4048, 4064. The Conference Report thus effectively

acknowledged that the congressional foray into regulating the Executive's inherent authority to

conduct foreign intelligence surveillance- even in a non-war context -was sufficiently open to

doubt that the statute might be struck down.

('fSIIB!·

13 b ,b

'INF)

Even Senator Kennedy, one ofthe most ardent supporters of the legislation, acknowledged that it raised substantial constitutional questions that would likely have to be resolved by the Supreme Court. He admitted that "[i]fthePresident does have the [inherent constitutional] power [to engage in electronic surveillance for national security pmposes], then depreciation ofit in Congressional enactments cannot unilaterally dhninish it. As with claims of

37 Tile 2002 per curiam opinion of the Foreign Intelligence Surveillance Court of Review (for a panel that
included Judge Silbennan) noted tba4 in light of intervening Supreme Court cases, there is no longer "much left to an argument" that Silbennan had made in his 1978 testimony about FISA 's being inconsistent wilh "Article Ill case
or controversy responsibilities offcderaljudges because of the secret, non·adversaryprocess." In reSealed C<Jse, 310 F,3d 717,732 n.l9. That constitutional objection was, of course, completely separate fiom the one based upon
the President's inherent powers. ('FSIISI- b1• b3 INF)

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Executive privilege and other inherent Presidential powers, the Supreme Court remains the final

arbiter." 1976 FISA Hearing at3. Moreover, Senator Kennedy and other senators effectively

highlighted their own perception that the legislation might well go beyond the constitutional

powers of Congress as they repeatedly sought assurances from Executive branch officials

conceming the fact that "this President has indicated that he would be bound by (the legislation]"

and speculated about "[h]ow binding is it going to really be in tem1s offuture Presidents?" !d. at

16; see also id. at 23 (Sen. Hruska) ("How binding would that kind of a law be upon a successor

President who would say ... I am going to engage in that kind ofsurveillance because it is a

power derived directly from the Constitution and cannot be inhibited by congressional

enactment?"). The senators' emphasis on the cmTent President's acqtdescence in the legislation,

and trepidation conceming the positions future Presidents might take, makes sense only if they

were sufficiently doubtful of the constitutional basis for FISA that they conceived of the bill as

more of a practicaL compromise between a particular President and Congress rather than an

exercise of authority granted to Congress under the Constitution, which would necessarily bind

future Presidents as the Jaw of the land.

(TS//.SJ.

13 b •b

//NF)

Finally, other members of Congress focused on the point that, whatever the scope of Congress's authority to impose some form ofrestriction on the President's conduct of foreign intelligence surveillance, the particular restriction imposed in FISA -requiring resort to an Article Ill court for a surveillance order- raised its own separation-of-powers problem. Four members of the House's Permanent Select Collltniltee on Intelligence criticized this procedure on constitutional grollllds and argued that it "would thrust the judicial branch into the arena of foreign affairs and thereby improperly subject 'political' decisions to 'judicial intrusion."' H.R. Rep. No. 95-1283, Pt. I, at 111 (1978). They concluded that it "is clearly inappropriate to inject the Judiciary into this realm of foreign affairs and national defense which is constitutionally delegated to the President and to the Congress." !d. at 114. Similar concerns about constitutionality were raised by dissenters from the Conference Report, who noted that "this legislation attempts to do that which it cannot do: transfer a constitutionally granted power from one branch of government to another." 124 Cong. Rec. 33,787, 33,788 (Oct. 5, 1978). ('l'Sf/Bf- b1, b3 lfNF)

The only court that has addressed the relative powers of Congress and the President in this field, as far as we are aware, has suggested that the balance tips decidedly in the President's favor. The Foreign Intelligence Surveillance Court of Review recently noted that all courts to have addressed the issue have ''held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." In reSealed Case, 310 F.3d 717, 742 (Foreign InteL Surv. Ct. of Rev. 2002). On the basis ofthat unbroken line of precedent, the Court "[took] for granted that the President does have that authority," and concluded that, "assuming that is so, FISA could not encroach on the President's constitutional power." ld.38 Altl10ugh that statement was made without extended analysis, it is the only judicial statement on

"In the past, other courts have declined to express a view·on that issue one way or the other. See. e.g.,
Butenko, 494 F.2d at 601 ("We do not intimate, at this time, any view whatsoever as t"Grii?t•r resolution of the
possible clash of the constitutional powers of the President and Congress."). ff'SIISI· ' .NF)

48
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point, and it comes from the specialized appellate court created expressly to deal with foreign intelligence issues under FISA. (TSII&I b1• b3 1/Nf)

b1, b3, b5

b1, b3, b5

49 TOP SECRE'f/, bi, b3 '/COMINT

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'f9

P-SECRET//

1 b'

3 b

//€0M-INF-

b1, b3

'11\'0FORI'l

!

b1, b3, b5

I

I

b1, b3, b5

50 'feiLEECRET/1 b1• b3 //COMINT

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b. In the narrow context of interception of enemy
communications In tbe midst of an armed conflict, FISA is unconstitutional as applied ('f8118l· b1, b3 IINF)

For analysis of b1, b3

however, we need not address such a broad question,

nor need we focus our analysis solely on the President's general authority in the realm of foreign

affairs as Chief Executive. To the contrary, the activities authorized in b1, b3 are

also- and indeed, primarily- an exercise of the President's authority as Commander in Chief.

That authority, moreover, is being exercised in a patticular factual context that involves using the

resources of the Department of Defense in an armed conflict to defend the Nation from renewed

attack at the hands of an enemy that has already inflicted the single deadliest foreign attack in the

Nation's history. As explained above, each Presidential Authorization for a renewal of the

b1, b3

authority is based on a review ofcurrent threat information from which the

President concludes that al Qaeda
b5

March 11, 2004 Authorization bS In addition, the Authorization makes clear that the electronic surveillance is being authorized "for the purpose of detection and prevention of terrorist acts within the United States." I d. bS Surveillance designed to detect communications that may reveal critical information about an attack planned by enemy forces is a classic form of signals intelligence operation that is a key part of the military strategy for defending the country. Especially given that the enemy in this conflict has already demonstrated an ability to insert agents into the cow1try surreptitiously to carry out attacks, the imperative demand for such intelligence as part of the military plan for defending the country is obvious.
b5

Accordingly, our analysis focuses solely 011 those circumstances. It bears emphasis, moreover, that the question ofcongressional authority to regulate the Executive's powers to gather foreign intelligence has never been addressed in such a context. (+8118!- b1' b3 //NF)
Even in that narrow context, the conflict between the restrictions imposed by Congress in FISA and the President's inherent authorities as Commander in Chief presents a complex and in many respects novel question. As set out below, we now conclude that, at least in the narrow circumstances presented by b1, b3 in the current conflict with a! Qaeda and its affiliated terrotist organizations, the President has exclusive constitutional authority, derived from his dual roles as Commander in Chief and sole organ for the Nation in foreign affairs, to

51 1'-()P-SEGREl'/, b1. b3 1/00MINI'-

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order warrantless foreign intelligence surveillance targeted at communications of the enemy that

Congress cannot override by legislation. Provisions in FISA that, by their tenus, would prohibit

b1, b3

as applied in U1is context.

('fS/18].

1 b·

3 b

1/NF)

are thus unconstitutional

As noted above, there are few precedents to provide concrete guidance concerning

exactly where the line should be drawn defining core Commander-in-Chief authorities with

which Congress cannot interfere. This Office has long concluded, based on decisions of the

Supreme Court, that the Commander-in-ChiefClause is a substantive grant of authority to the

President. See, e.g., Memorandum for Charles W. Colson, Special Counsel to the President,

from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The

President and the War Power: South Vietnam and the Cambodian Sanctuaries 5 (May 22, 1970)

("Cambodian Sanctuaries") ("[T]he designation of the President as Commander-in-Chiefof the

Armed Forces is a substantive grant ofpower."). It is thus well established in principle that the

Clause provides some area ofexclusive Executive authority beyond congressional control. The

core of the Commander-in-Chiefpower is the authority to direct the arn1ed forces in conducting a

military campaign. Thus, the Supreme Court has made clear that the "President alone" is

"constitutionally invested with the entire charge of hostile operations." Hamilton v. Dillin, 88

U.S. (21 Wall.) 73, 87 (1874); see also United States v. Sweeny, 157 U.S. 281, 284 (1895)

("[T]he object of the [Commander-in-ChiefClause] is evidently to vest in the President •.. such

supreme and undivided command as would be necessary to the prosecution ofa successful war."

(emphasis added)); The Federalist No. 74, at 500 (Hamilton) ("Of all the cares or concerns of

government, the direction ofwar most peculiarly demands those qualities which distinguish the

exercise of power by a single hand. The direction ofwar implies the direction of the common

strength; and the power of directing and employing the common strength, forms an usual and

essential part in the definition of the executive authority."). Similarly, the Court has stated that,

"[a]s commander-in-chief, [the President] is authorized to direct the movements of the naval and

militiuy forces placed by Jaw at his command, and to employ them in the manner he may deem

most effectual to harass and conquer and subdue the enemy." Flemingv. Page, 50 U.S. (9 How.)

603,615 (1850). As Chief Justice Chase explained in 1866, Congress's power "extends to all

legislation essential to the prosecu~ion of war with vigor and success, except such as lnteiferes

with the command oftheforces and the conduct ofcpmpaigns. That power and duty belong to

the President as commander-in-chief." Ex parte Milliga11, 71 U.S. {4 Wall.) 2, 139 (1866)

(Chase, C.J., concurring) (emphasis added); cf. Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 506

(1870) ("The measures to be taken in carrying on war,, , are not defined [in the Constitution].

The decision of all such questions rests wholly in the discretion of those to whom the substantial

powers involved are confided by the Constitution.").

('1'-s/ISI-

13 b ,b

/NF)

The President's authority, moreover, is at its height in responding to an attack upon U1e United States. As the Supreme Court emphasized in the Prize Cases, the President is "bound to resist force by force"; he need not await any congressional sanction todefend the Nation from attack and "[h]e must determine what degree of force the crisis demands." The Prize Cases, 67 U.S. (2 Black) 635, 668, 670 (1863). Based on such authorities, this Office has concluded that Congress has no power to interfere with presidential decisions concerning the actual management

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of a military campaign. See, e.g., Memorandum for Daniel J. Bryant, Assistant Attorney
General, Office of Legislative Affairs, from Patrick Philbin, Deputy Assistant Attorney General,
Office of Legal Counsel, Re: Swifl Justice Authorization Act 11-14 (Apr. 8, 2002); Training of British Flying Students in the United States, 40 Op. Att'y Gen. 58, 6! (1941) ("[!Jn virtue of his
rank as bead of the forces, he has certain powers and duties with which Congress cannot interfere." (internal quotation marks omitted)).40 As we have noted, "(i]t has never been doubted
that the President's power as Commander-in-Chief authorizes him, and him alone, to conduct
armed hostilities which have been lawfully instituted." Cambodian Sanell/aries at 15. And as we explained in detail above, see supra pp. 29-30, the interception of enemy communications is a
traditional element ofthe conduct of such hostilities during wartime and necessarily lies at core
of the President's Commander-in-Chief power. ('f81tSI· b1, bJ 1/NF)

We believe that

b1, b3

comes squarely within the Conunander in Chief's

authority to conduct the campaign against al Qaeda as part of the cun·ent armed conflict and that

congressional efforts to prohibit the President's effmts to intercept enemy communications

t!u·ough

b1, b3

would be an unconstitutional encroachment on the Commander-in-

Chiefpower. (TSi/SI b1, bJ 'INF)

b5

'' Along similar lines, Francis Lieber, a principal legal adviser to the Union Anny during the Civil War, explained that the "direction ofmilitary movement 'belongs to conun!Uld, and neither the power ofCongress to raise !Uld support armies, nor the power to make rules for Ute government and regulation of Ute land and naval forces, nor lhe power to declare war, gives it1he conunand ofdte army. Here the constitutional power of Ute President as commander-in~hiefisexclusive. 11' Clarence A. BerdahlJ War Powers ofthe Executive in the United States 118 (1921) (quoting Lieber, Remarks 011 Anny Regulations 18). (U)

53
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1/NO:FORN

b5

b5

b5

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//NOFORN

b5

On the other side of the balance, there are instances in which executive practice has recognized some congressional control over the Executive's decisions concerning the anned forces. No example ofwhich we are aware, however, involves an attempt at congressional regulation of the actual conduct ofa can1paign against enemy forces.42 For example, just before
b5
•'

.., Many have pointed to the annual message tl1at President Thomas Jefferson sent to Congress in 1801 as support for the proposition that executive practice in tho early days of the Republic acknowledged congressional power to regulate even tile President's command over the anned forces. See, e.g., Youngstow11, 343 U.S. at 64 n.lO (Jackson, J., concurring); EdwardS. Corwin, The President's Control ofForeign Relatlo11s 131-33 (1917); Louis Fisher, Presidem/al War Power2S (1995); see also Abraham D. Sofuer, War, Foreign Affairs, and Constitutio11al Power: The Orig/11S 212 (1976) ("Most commentators have accepted this famous statement or deference to Congress as accurate and made in good faith."), In U1e message, Jefferson suggested that a naval force he had dispatched to lite Mediterranean to answer threats to American shipping from lite Barbary powers was "[u]nauthorized by lite Constitution, without the sanction of Congress, to go beyond tl1e line of defense." Sofaer, War, Foreign Affairs, and Constitutional Power at 212 (quoting 11 Annals ofCongress 11-12). But the orders actually given to the naval commanders were quite different. They instructed the officers that, if upon their arrival

55
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World War II, Attorney General Robert Jackson concluded that the Neutrality Act prohibited

President Roosevelt from selling certain armed naval vessels (so-called "mosquito" boats) and

sending them to Great Britain. See Acquisition ofNaval and Air Bases in Exchange for Over-

Age Destroyers, 39 Op. Att'y Gen. 484, 496 (1940). Thus, he concluded that Congress could

control the Commander in Chiefs ability to transfer that war materiel. That conclusion,

however, does not imply any acceptance of direct congressional regulation of the Commander in

Chiefs control of the means and methods of engaging the enemy in an actual conflict. Indeed,

Congress's authority in the context of controlling the sale of American naval vessels to another

country was arguably bolstered in part by Congress's authority over "provid[ing) and

maintain[ing] a Navy." U.S. Cons!. art. I,§ 8, cl. 13. Similarly, in Youngstown Sheet & Tube
Co. v, Sawyer, the Truman Administration readily conceded that, if Congress had by statnte

prohibited the seizure of steel mills, Congress's action would have been controlling. See Brief

for Petitioner at 150, Youngstown, 343 U.S. 579 .(1952) (Nos. 744 and 745) ("The President has

made clear his readiness to accept and execute any Congressional revision of pis judgment as to

the necessary an.d appropriate means of dealing with the emergency in the steel industry.").

There again, however, that concession.concernjng congressional control over a matter of

economic production that might be related to the war effort implied no concession concerning

control over the methods ofengaging the enemy.

('I'-sHS:I·

13 b ,b

/fNF)

Lastly, In terms ofexecutive authorities, there are many instances in which the Executive, after taking linilateral action in a wartime emergency, has subsequently sought congressional ratification of those actions. Most famously, President Lincoln sought congressional sanction in 1861 for having enlisted temporary volunteers in the army and having enlarged the regular army and navy while Congress was in recess. See Message to Congress in Special Session (July 4, 1861), in Abraham Lincoln: Speeches and Writings, 1859-1865 at 252 (Don E. Fehtenbacher ed. 1989). In his proclamation ordering these actions, Lincoln explained that his orders would "be submitted to Congress as soon as assembled." Proclamation ofMay 3, I861, 12 Stat. 1260. Such examples shed relatively little light, however, on the distinct question ofPresidential authority to defy Congress. A decision to seek congressional support can be prompted by many motivations, including a desire for political support, and thus does not necessarily reflect any legal determination that Congress'spower on a particular subject is paramount. In modem times, after all, several administrations have sought congressional authorizations for use of military force without conceding that such authorizations were in any way constitutionally required and while preserving the ability to assert the unconstitutionality ofthe War Powers Resolution. See, e.g., Statement on Signing the Resolution Authorizingthe Use ofMilitary Force Against Iraq, 1 Pub. Papers of George Bush 40 (1991) ("[M]y requestforcongressional support did not ...

in the Mediterranean they should discover that the Barbary powers had declared waragainst the United States, "you will then-distribute your force in such manner . .. so as best to protect-our commerce and chastise their insolenceby sinking, burning or destroying their ships and vessels wherever you shall find them." Id. at 210 (quoting Naval Documents Related to the United States War With the Barbary Powers 465-67 (1939)); see also David P. Currie, Tile Constitution in Congress: The Jeffersonians, 1801-1829 at 128 (2001 )("Neither the Administration's orders nor the Navy's actions .reflected the narrow view of presidential authority Jefferson espoused in his Annual Message."); id. at 127 ("Jefferson's pious words to Congress were to a consid~rable extent belied by his own actions."). (U)

56 l'OI>-"'..EGRE-Th b1. b3//00MIN-'I'--

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constitute any change in the long-standing positions of the executive branch on either the

President's constitutional authority to use the Anned Forces to defend vital U.S. interests or the

constitutionality of the War Powers Resolution."). Moreover, many actions for which

congressional support has been sought- such as President Lincoln's action in raising an am1y in

1861 -quite likely do fall primarily under Congress's Article I powers. See U.S. Canst. art. I,

§ 8, cl. 12 (granting Congress power "to raise and support Annies"). Again, however, such

actions are readily distinguishable from the direct control over the conduct of a campaign against

the enemy. Past practice in seeking congressional support in various other situations thus sheds

little light on the precise separation of powers issue here.

('f8H&I-

13 b ,b

/INF)

There are two decisions ofthe Supreme Comt that address a conflict between asserted wartime powers of the Commander in Chiefand congressional legislation and that resolve the conflict in favor ofCongress. They are Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804), and Youngstown Sheet & Tube Co. v. Scrnyer, 343 U.S. 579 (1952). These are the cases invariably cited by proponents ofa congressional authority to regulate the Commander-in-Chiefpower. We conclude, however, that both are distinguishable from the situation presented by b1 • b3
in the conflict with al Qaeda and thus that they do not support the constitutionality of the restrictions in FISA as applied here. ('fSHSI. b1, b3 '//NF)

Barreme involved a libel brought to recover a ship seized by an officer of the United States Navy on the high seas during the Quasi War with France in 1799. The claimant sought return of the ship and damages from the officer on the theory that !}le seizure had been unlawful. The seizure had been based upon the officer's orders implementing an act of Congress suspending commerce between the United States and France. In essence, the orders from the President to the officer had directed him to seize any American ship bOlmd to or ji·om a French port. The ship in question was suspected of sailingfrom a French port. The statute on which the orders were based, however, had authorized solely the seizure ofAn1erican ships bound to a French port. The Supreme Court concluded that the orders given by the President could not authorize a seizure beyond the terms of the statute- that is, they could not authorize anything beyond seizures of ships sailing to a French port. As the Court put it, "the legislature seem to have prescribed that the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port." ld. at 177-78 (empha~is.omitted). As a result, the Court ruled not only that the seizure was not authorized, but also that the officer was liable in damages, despite having acted within his orders. See id. at 178-79. The decision has been broadly characterized by some as one in which the Court concluded that Congress could restrict by statute the means by which the President as Commander in Chief could direct the armed forces to carry on a war. See. e.g., Glennon, Constitutional Diplomacy at 13 ("In Little ... , an implied congressional prohibition against certain naval seizures prevailed over the President's constitutional power as conm1ander-in-chief." (footnote omitted)); Foreign and Militmy Intelligence, Book 1: Final Rep. oftlze Senate Select Comm. to Study Gov 'tal Operations with Respect to Intelligence Activities, S. Rep. No. 94-755, at 39 (1976) (characterizing Barreme as "affirm[ing]" the "constitutional power ofCongress" to limit "the types of seizures that could be made" by the Navy); cf. Henry P. Monaghan, The Protective Power oftire Presidency, 93

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Colum. L. Rev. I, 24-25 (1993) (arguing that Barreme establishes the principle that the President

has no authority to act "contra legem, even in an emergency").

(!fSHSI·

13 b •b

/IN¥)

We think such a characterization greatly overstates the scope of the decision, which is

limited in three substantial ways..First, the operative section ofthe statute in question restricted

the movements of and granted authority to seize American merchant ships.'1 It was not a

provision that purported to regulate by statute the steps the Commander in Chief could take in

confronting armed vessels of the enemy. Thus, neither in Barreme nor in any other case arising

from the Quasi War (so far as we are aw!lre) did the Supreme Court have occasion to rule on

whether, even in the limited and peculiar circumstances ofthe Quasi War, Congress could have

placed some restriction on the orders the Commander in Chief could issue concerning direct engagements with enemy forces.'4 We think that distinction is patticularly important when the

b1, b3

because

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is directed solely against

b1, b3

where there is a reason for

believing that one of the commurucants is an enemy. (+SftgJ. o1, b3 //NF)

Second, and relatedly, it is significant that the statute in Barreme was expressly cast, not as a limitation on the conduct ofwarfare, but rather as a measure on a subject within the core of Congress's responsibilities under Article I- regulating foreign commerce. See supra n.43

"The text of the rust section of the act provided that "from and after the first day of March·next no ship or vessel owned, hlred or employed, wholly or in part, by any pl'rson resident within the United States, and which shall depart there from1 shall be allowed to proceed directly, or from any intemiediate port or place, to any port or place within the territory oftl1e French republic." JJarreme, 6 U.S. (2 Cranch) at 170 (quoting Act ofFebruary 9, 1799) (emphases omitted). Section 5 provided"[t]bat it shall be lawful for the President of the United States, to give uistructions to the commanders ofthe public armed ships of the United States, to stop and examine any ship or vessel ofthe United States, on the high sea, whichthere may be reason to suspect to be engaged in any traffic or commerce contrary to the true tenor hereof; and if, upon examination, it shall appear that such ship or vessel is bound or sailing to any port or place within tl1e territory of the French republic, or her dependencies, contrary to the intent ofthis act, it shall be the duty ofthe commander of such public armed vessel, to seize every such ship or vessel engaged in such illicit commerce., .." !d. at 171 (emphases omitted), (U)

44 In fact, ifanything the one case that came close t<J raising such a question tends to suggest that the Court would not have upheld such a restriction. In that case the Court was careful to construe the statutes involved so as not to restrict the ability of tl1e armed vessels of tho United States to engage armed vessels under French control. In Talbot v. Seeman, 5 U.S. (I Cmnch) I (1801), the U.S.S. Constitution bad captured an armed merchant vessel, the Amelia, that, although originally under a neutral flag, bad previously been captured and manned by a prize crew from the French navy. The Court explained that, under the statutes then in force, there was no law authorizing a public anned vessel of the United States to capture such a vessel because, technically, in contemplation oflaw it was still a neutral vessel until the French prize crew bad brought it to port and had it fonuatly adjudicated a lawful prize. See id. at 30-31. TI1e Court concluded that the capture was lawful, however, because the captain of the Constitution had probable cause at the time of the capture to doubt the character oftl1e ship. The Court went on to explain, moreover, that even if"the character of the Amelia had been completely ascertained," the capture still would have been lawful because "as she was an amJCd vessel under French authority, and in a condition to annoy the American commerce, it was [the American captain's] duty to render her incapable of mischief." ld. at 32. The Court reached that conclusion even though there was also no act of Congress authorizing public am1ed vessels of the United States to seize such vessels under French control. The Court concluded that the statutes must nevertheless be construed to pemrit, and certainly not to prohibit, such an action. !d. at 32-33. (U)

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(quoting t~xt of Act ofFebruary 9, 1799). It happened that many of the actions taken by the

armed forces during the Quasi War involved solely enforcing restrictions such as that contained

in the statute in Barreme. But that was part and parcel of the peculiar and limited nature of the

war that gave it its name. The measures that Congress imposed restricting commerce took center

stage in the "conflict" because the extent of full-blown hostilities between the armed forces was

extrelnely limited. See Alexander DeConde, 11JeQuasi-War 126 (1966) ("The laws themselves

were half measures .... , were basically defensive, and were to expire when the commanders of

French ships stopped their depredations against American commerce. This was why, from the

American point of view, the clash with France was a quasi-war.").

('f-8HS-I·

13 b ,b

1/NF)

Finally, reviewing Berreme in light ofboth contemporary decisions addressing the nature

of the conflict with Franc.e and later precedents, such as the Prize Cases, 67 U.S. (2 Black) 635

(1863), makes clear that the Supreme Court considered the unusual and limited nature ofthe

maritime "war" with France a critical factor in concluding that statutes might constrain the

Commander in Chiefs directives to the armed forces. The Court's decision was fundamentally

based on the.premise that the;: state of affairs with France was not sufficiently akin to a full-scale

war for the President to invoke unqer his own inherent authority the full rights of war that, in

other cases, he might have at his disposal. As a result, he required. the special authorization of

Congress to act. The opinion of the lower court in the case, which is quoted at length in the

report of the Supreme Court.decision, makes this premise clear. & the lower cm,lrt.had

explained: "Ifa war ofa·common nafure had existed between the United States and France, no

question would be made but the false papers found on board, the destruction ofthe log-book and

other papers, would be a sufficient excuse for the capture, detention and consequent damages. It

is only to be considered whether the same principles as they respect neutrals are to be applied to

this case."

Jd,

atl73 (emphasis omitted).

('F&If8!-

1 b , bJ

lfNF)

The opinion ofthe Supreme Court, delivered by Chief Justice Marshall, echoes the same principle. In framing his discussion, Chief Justice Marshall made clear that ''[i]t is by no means clear that the president of the l.Jnited States whose high duty it is to 'take care that the laws be faithfully executed,' and who is commander in chief ofthe annies and navies of the United States; might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication, American vessels which were forfeited by being engaged in this illicit commerce." !d. at 177. In other words, "inthe then existing state.ofthings" there was not a sufficiently clear state of war that the President might have exercised the rights of war to stop and examine the vessel and interdict commerce with the enemy. Instead, he required "special authority for that purpose." But if he required "special authority" from Congress, the extent of that authority could necessarily be limited by whatever restrictions Congress might impose. Of course, because t11e Court viewed "the then existing state ofthings" as insufficient for the President to invoke the rights of war under his own inherent authority, the Court had no occasion to address the power of Congress to limit the Commander in Chiefs authority in such a case. fi'-8HS-I· b1• b3 /INF)

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This understanding is buttressed by contemporary decisions addressing other actions in

the Quasi War. Such decisions make it clear, for example, that the Court considered the limited

character of the war a peculiar state ofaffairs in international law. As Justice Moore explained

four years earlier in Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800), "our situation is so extraordinary,

that I doubt whether a parallel case can be traced in the history of nations." !d. at39 (Moore, J.).

Members ofthe Court also indicated their understanding that a more "perfect" state of war in

itselfcould authorize the Executive to exercise the rights ofwar, because in such a war "its

extent and operations are only restricted and regulated by thejus belli, forming a part ofthe law

ofnations." Jd. at 44, 43 (Chase, J.). Indeed, the very same distinction between a full-fledged

state of war (which would inherently authorize the President to invoke the rights of war as

recognized under the Jaw of nations) and a more qualified state of hostilities (where

congressional authorization would be necessary) was also discussed, although it was not central

to the holding, in Bas v. Tingy. The critical issue in the case was whether a particular statute

defining the rights of salvage and the portions to be paid for salvage applied to a friendly vessel

recaptured from the French, or whether its application was more restricted in time. Justice

Washington explained his view that the law should apply "whenever such a war should exist

between the United States and France, or any other nation, as according to the law ofnations, or

special authority, would justifY the recapture offriendly vessels." 1d. at 41·42 (Washington, J.).

That phrasing clearly reflects the assumption that the recapture of a vessel might be authorized

either by the type ofwar that existed in itselfor by "special authority" provided by Congress.

Similarly, Justice Washington went on to explain that in another case he had concluded as circuit

justice that "neither the sort ofwar that subsisted, nor the special cormnission under which the

American acted, authorised" the capture of a particular vessel. !d. at 42 (emphases altered).

Again, this analysis reflects the assumption that the Quasi War was not the "sort ofwar" that

permitted the Executive to exercise the full rights of war under the Commander in Chiefs

inherent authority, but that such wars could arise. Given the limited nature of the Quasi War, of

course, in Bas the Court had no occasion to consider the question whether Congress might

restrict the Commander in Chief's orders to the navy in a situation where the "sort ofwar that

subsisted" would have allowed the President on his own authority to invoke the full rights ofwar

under the law of nations.

(Hli!SI·

13 b •b

/INF)

Understood in this light, it seems clear that in the Supreme Court's view, Barreme did not

involve a situation in which there was a sufficiently full-scale war that would, in and of itself,

suffice to trigger the powers ofthe President as Commander in Chief to direct the armed forces

in a campaign. And thus the Court had .no occasion to consider whether Congress might by

statute restrict the President's power to direct the armed forces as he might see fit in such a

conflict. Much less did the Court consider in Barreme the situation where a full-scale war was

initiated by a foreign attack- a situation in which, as the Court later made clear in the Prize

Cases, the President would need no special authority from Congress: "If a war be made by

invasion of a foreign nation, the President is not only authorized but bound to resist force by

force. He does not initiate the war, but is bound to accept the challenge without waiting for any

special legislative auU10rity."

67 U.S. (2 Black) at 668.

('FSIISI·

13 b .b

IJNF)

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The limited nature of the conflict at issue in Barreme distinguishes it from the current stale ofarmed conflict between the United States and a! Qaeda. This conflict has included a fullscale attack on the United States that killed thousands of civilians and precipitated an unprecedentedly broad Congressional Authorization for the Usc of Military Force followed by maJ,or m1'1t'lary operati.ons by U.S. anned forces that contm. ue to tI11.s day. ('.!".",O."t1"'0""'t' b1,b3 I/NF)
The second Supreme Court decision that involves a direct clash between asserted powers of the Commander in Chief and Congress is Youngstown. Some commentators have invoked the holding in You11gstown and the analysis in Justice Jackson's concurrence to conclude that, at least when it occurs within the United States, foreign intelligence collection is an area where the Legislative and Executive branches share concurrent authority and that Congress may by statute comprehensively regulate the activities of the Executive. See, e.g., DavidS. Eggert, Note, Executive Order 12,333: An Assessment ofthe Validity ofWarrantless National Security Searches, 1983 Duke L. J. 611, 636-37; cj John Norton Moore et al., National Security Law 1025 (1990). The case is also routinely cited more broadly as an affirmation ofCongress's powers even in the face ofclaims by the Commander in Chiefin wartime. Jt is true that Youngstown involved a situation in which the Executive, relying illter alia on the Commanderin-Chiefpower, attempted to take action that Congress had apparently foreclosed by statute, and that the Supreme Court held the executive action invalid. Beyond a superficial parallel at that level ofgenerality, however, we do not think the analogy to Youngstown is apt. (tSII£!· b1, b3 '/INF)

Youngstown involved an effort by the President- in the face of a threatened work stoppage- to seize and run steel mills. Steel was a vital resource for manufacturers to produce the weapons and other materiel that were necessary to support troops overseas in Korea. See 343 U.S. at582-84. In drafting the Labor Management Relations Act of 1947 (also known as the Taft-Hartley Act) Congress had expressly considered the possibility ofgiving the President the power to effect such a seizure ofindustry in a time of national emergency. It had rejected that option, however, and instead provided different mechanisms for resolving labor disputes. See id. at 586. Other statutes, moreover, did provide certain mechanisms for seizing industries to ensure production vital to national defense. See id. at 585-86 & n.2. President Truman, however, chose not to follow any of these mechanisms and instead asserted inherent authority to seize the mills to ensure the production ofsteel. ('FBIISI· b1• bJ 'INF)

The Court rejected the President's assertion ofpowers under the Commander-in-Chief Clause primarily because the connection between the President's action and the core Commander-in-Chieffunction ofcommanding the armed forces was simply too attenuated. As the Court pointed out, "[e]ven though 'theater ofwar' (may] be an expanding concept," the case clearly did not involve the authority over "day-to-day fighting in a theater of war." Id, at 587. Instead, it involved a dramatic extension ofthe President's authority from control over military operations to control over an industry that was vital for supplying other industries that in tum produced items vital for the forces overseas. The almost limitless implications of the theory behind President Truman's approach- which could potentially permit the President unilateral authority to control any sector of the economy deemed vital to a war effort- was clearly an

61

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important factor influencing the Court's decision. Indeed, Justice Jackson's influential concuning opinion reveals a clear concem for what might be termed foreign-to-domestic presidential bootstrapping. The United States became involved in the Korean conflict through President Truman's unilateral decision, without consulting Congress, to commit U.S. troops to the defense of South Korea when theNortl1 invaded in 1950. That was a national security and foreign policy decision to involve U.S. troops in a wholly foreign war. In Youngstown, the President was claiming authority, based upon that foreign war, to extend far-reaching presidential control into vast sectors of the domestic economy. Justice Jackson expressed "alarmO" at a theory under which "a President whose conduct offoreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's anned forces to some foreign venture." !d. at642 (Jackson, J., concurring). ('FS-If&I· bl, b3 /INF)

Critically, moreover, President T111man's action involved extending the Executive's

authority into a field where the Constitution had assigned Congress, in the ordinary case, a

preeminent role. As the majority explained, under the Commerce Clause, Congress "can make

Iavis regulating the relationships between employers and employees, prescribing rules designed

to settle labor disputes, and :fixing wages and working conditions in certain fields ofour

economy. The Constitution did not subject this law-making power of Congress to presidential or

military supervision or control." Jd. at 588; see also id. at 587 ("This is ajob for the Nation's

lawmakers, not for its military authorities.'~. In addition, as Justice Jackson pointed out in

concurrence, Congress is also given express authority to "'raise and support Annies"' and "'to

provide and maintain a Navy."' Id. at 643 (Jackson, J., concurring) (quoting U.S. Const. art. I,

§ 8, cls. 12, 13). These grants of authority seemed to give "Congress primary responsibility for

supplying the armed forces," id., and the crisis at hand involved a matter ofsupply. Thus,

Youngstown involved an assertion ofexecutive power that not only stretched far afield from core

Cornmander-in~Chief functions, but that did so by intruding into areas where Congress had been

given an express, and likely dominant, role by the Constitution.

(-1'8ff8:!·

3 bl, b

IJNF)

The situation here presents a very different picture. First, the exercise of executive

authority here is nofseveral steps removed from the actual conduct of a military campaign. To

the contr<~ry,

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is an intelligence operation undertaken

by the Department ofDefense specifically to detect opemtional conuuunications of enemy forces

that will enable the United States to detect and disrupt planned attacks, largely by detecting

enemy agents already within the United States. AI Qaeda has already demonstrated an ability,

both on September 11 and subsequently (in cases such as Jose Padilla and Ali al-Marri45) to

insert agents into the United States. As explained above, the efforts

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to

intercept communications that would lead to the discovery of more such agents or other planned

"AI-Marri entered the United States on September 10,2001. He was originally "detained in December 2001 as a material witness believed to have evidence about the terrorist attacks of September II," and the President later determined he is "an enemy combatant affiliated withal Qaeda." AI-Marri v. Rrzmsfeld, 360 F.3d 707, 708 (7tll Cir. 2004}. (U}

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attacks on the United States are a core exercise of Commander-in-Chief authority in the midst of an atmed conflict. ('FSH&l- b1, b3 1/NF)
In addition, the theme that appeared most strongly in Justice Jackson's concurrence in Youngstown expressing a concern foraforn1 of presidential boot-strapping simply does not apply in this context. Justice Jackson evinced a concern for two aspects of what might be termed bootstrapping in the Executive's position in Youngstown. First, the President had used his own inherent constitutional authority to commit US. troops to the Korean conflict. He was then attempting, without any express authorization for the conflict from Congress, to expand his authority further on the basis ofthe need to .support the troops already committed to hostilities. Hete, however, Congress expressly provided the President sweeping authority immediately after September 11, 2001 to use "all necessary and appropriate force" as he deemed required to protect theNationfrom further attack. Congressional Authorization§ 2(a). Second, in Youngstown Justice Jackson was concerned that the President was using an exercise of his Commander-inChiefpowers in the foreign realm to justify his assumption of authority over domestic matters within the United States. Again, this concern must be understood in light ofboth the particular context ofthe Korean conflict and the type of powers being asserted. There, the conflict was strictly confined to the Korean peninsula overseas, and there was no suggestion that the President's actions in the United States had any connection whatsoever to meeting an enemy threat within the United States. As a result, Youngstown must not be overread to suggest that the President's authorities for engaging the enemy are necessarily somehow less extensive inside the United States than they are abroad. The extent ofthe President's authorities will necessarily dep;;)nd on where the enemy is found. Long before Youngstown, it was reco.gnized that, in a large-scale conflict, the area of operations could readily extend to the continental United States, evenwhen there are no major engagements of armed forces here. As long ago as 1920 in the oontextofthetrial of a German officer for spying in World War I, it was recognized that "[w]ith the progressmade in obtaining ways and means for devastation and destruction, the territory of the United States was certainly within the field of active operations" during the war, particularly in the port of New York, and that a spy in the United States might easily have aided the ''hostile operations'' ofU-boats offthecoast, United States ex ref. Wessels v. McDonald, 265 F. 754, 764 (E.D,N.Y. 1920). Similarly, in World War II, in Ex parte Quirin, 317 U.S. 1 (1942), the Supreme Court readily recognized that the Presidenthad authority as Commander in Chief to capture andtry agents of the enemy in the United .States, and indeed that he could do so even if they had never "entered the theatre or zone of active military operations." Id. at 38.46 ('FSH&l- b1, b3 1/NF)
In this conflict, moreover, the battlefield was brought to the United States in the most literal way on September 11, 2001, and ongoing intelligence indicates that further attacks on the United States will be attempted. In addition, in this conflict, precisely because the enemy

"But see Padilla v. Rumsjeld, 352 F.3d 695, 712 (2d Cir. 2003) (holding that anal Qaeda operative seized in Chicago could.not be detained in South Carolina without statutory authorization because "the President lacks inherent constitutional authority as Commander,.in-Chiefto detain American citizens on AmericlUl soil outside a zone of combat"), cert. granted, 124 S. Ct. 1353 (2004). (U)

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Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 59 of 74

'1'0-l> SECRET/, b1· b3 //COMINT

b1,b3

operates by stealth and seeks to infiltrate the United States undetected, it is the intelligence front that is the most vital aspect of the battle for protecting America. Thus, while some justices in Youngstown expressed concern at the President's efforts to claim Commander-in-Chiefpowers for actions taken in the United States, that concern must be understood in the context of a conflict that was limited wholly to foreign soil. The Nmth Koreans in 1950 had no ability to project force against the continental United States and the Court in Youngstown was not confronted with such a concern. Al Qaeda, by contrast, has demonstrated itself more successful at projecting force against the mainland United States than any foreign enemy since British troops burned Washington, D.C., in the War of 1812. There is certainly notl1ing in Youngstown to suggest that the Court would not agree that, after an attack such as September 11, American soil was most emphatically part oftl1e battle zpne and that the President's Commander-in-Chief powers would fully apply to seek out, engage, and defeat the enemy- even in the United States. Similarly, there is certainly no question ofpresidential bootstrapping from a "foreign venture" here. This conflict was thrust upon the Nation by a foreign attack carried out directly on American soil. (+8/IS±· b1, b3 1/NF)

Finally, an assertion ofexecutive authority here does not involve extending presidential power into spheres ordinarily reserved for Congress. To the contrary, as outlined above, congressional authority in this field is hardly clear.
b1, b3, b5

(+8/ISJ· b1, b3 lfNF)

In short, we do not think that Youngstown provides any persuasive precedent suggesting

that Congress may constitutionally prohibit the President from engaging in the activities

contemplated in b1, b3

(TSitSI-

13 b ,b

1/1\JF)

b1, b3, b5

b1, b3, b5

64 TOP SECRET/; b1• b3 1fCOMINT-

b1,b3

:tNOFOR.~

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 60 of 74
Pages 65-68 Withheld in Full
bl, b3, bS

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 61 of 74

TOP SB€RE!FI b1• b3 //GOMJN-T~

b1, b3

1/NOFORN

b1, b3, b5

b1, b3, b5

Taking into account all the considerations outlined above, we conclude that the signals intelligence activity undertaken to collect the content of enemy communications under
b1, b3, b5

69 TOP SECRET/, bi · b3 '/COMINT-

b1,b3

'/NOFORN

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 62 of 74

TOP SECR:E+hb1. b3//CO!\UN'F

b1,b3

1/NOFORN

b1 • b3 comes within the core powers of the Commander in Chief in conducting a

military campaign and that provisions in FISA or Title III that would prohibit it are

unconstitutional as applied. It is ciitical to our conclusion that the issue alises in the context of a

war instituted by an attack on the United Stales and necessitating the use of the anned forces to

defend the Nation from attack. That brings this situation into the core of the President's

Commander-in-Chief powers. It has long been recognized that the President bas extensive

unilateral authority even to initiate armed action to protect American lives abroad. See, e.g.,

Durand v. Hollins, 8 F. Cas. 111, 112 (C.C.S.D.N.Y. 1860) (No. 4186). If anything, we believe

that power is greater when the Nation itselfis under altack. It is fortunate that in our history !he

courts have not frequently had occasion to address the powers of the President in responding to

such aggression. ln the one precedent most sq1mrely on point, however, the Supreme Court. made

abundantly clear that his authority is broad indeed. As the Court put it in the Prize Cases, "[i]f

war be made by invasion ofa foreign nation, the President is not only authorized but bound to

resist force by force," 67 U.S. (2 Black) at 668, and "[h]e must determine what degree of force

the crisis demands," id. at 670. It is true that the Court had no occasion there to consider the

relative powers ofCongress and the President ifthey should come into conflict. Nevertheless,

. the Court's language iu the Prize Cases suggests that if there is any area that lies at the core of

the Commander in Chiefs power, it is actions taken directlyto engage the enemy in protecting

the Nation from an attack. In this regard, it bears emphasis tlmt the obligation to "protect each of

[the States] against lnvasion" is one ofthe few affirmative obligations the Constitution places on

the federal government with respect to the States. U.S. Cons!. art. IV, § 4. It is primarily the

President, moreover, who must carry out that charge. Indeed, defense of the Nation is an aspect

of the explicit oath ofoffice that tl1e Constitution prescribes for the President, which states that

the President shall "'to the best of [his] Ability, preserve, protect and defend the Constitution of

the United States."' U.S. Cons!. art. II, § !. Here, we conclude that the

b1, b3

activities

b1' b3

are precisely a core exercise ofCommander-in-Chiefpowers

to detect ljnd engage the enemy in protecting the Nation from attack in the midst ofa war and

that Congress may not by statute restrict the Conm1ander in Chiefs decisions about such a matter

involving the conduct ofa campaign.

('l'SHSI·

1 3 b •b

'//Nfl)

Even if we did not conclude that b1• b3 was within the core of the

Commander-in-Chiefpowerwithwhich Congress cmmot interfere, we would conclude that the

restrictions in FISA would frustrate the President's ability to carry out his constitutionally

assigned functions as Commander in Chief and are impermissible on that basis. As noted above,

even in prior opinions suggesting that Congress has the power to restrict the Executive's actions

in foreign intelligence collection this Office has always preserved the caveat that such restrictions

would be permissible only where they do not "go so far as to render it imoossilJle for the

President to perfom1 his constitutionally prescrilJed functions."

b5

Several factors combine to make the FISA process an insufficient mechanism for responding to

the crisis the President bas faced in the wake of the September 11 attacks.

('f8118I·

1 3 b ·b

lfNF)

b1, b3, b5

70

TOP SECRE'ff/b1· b3f/COl\UNT

b1,b3

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 63 of 74
Pages 71-73 Withheld in Full

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 64 of 74

TOP SECR:Effi b1• b3 'ICOMINT

b1, b3

1/NOFOR."f

b1, b3, b5

To summarize, we conclude only that when the Nation has been thrust into an anned conflict by a foreign attack on the United States and the President detem1ines in his role as Conunander in Chief and sole organ fo1· the Nation in foreign affairs that it is essential for defense against a further foreign attack to use the signals intelligence capabilities ofthe Department ofDefense within the United States, he has iilherent constitutional authority to direct electronic surveillance without a warrant to intercept the suspected communications of the enemy -an authority that Congress cannot curtail. We need not, and do not, express any view on whether the restrictions imposed in FISA are a constitutional exercise ofcongressional power in circumstances ofmore routine foreign intelligence gathering that do not implicate an armed conflict and direct efforts to safeguard the Nation froi:n a credible danger of foreign attack. ('fS#&I- b1, b3 //NF)
b1, b3, b5
b1, b3, b5

b1,b3, b5

74
TOP SECRI!lT/, b1, b3 /GOMINT~

b1, b3

INOFORN

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 65 of 74
Pages 75-99
Withheld in Full
bl, b3,b5

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 66 of 74

TOP SECRET b1, b3 1/COMINT

b1,b3

1/NOFOR.~

b1, b3, b5

b1, b3, b5

' v.

b1, b3

Under the Fourth Amendment (TS//8! b1, b3 /INF)

The analysis above establishes that the constraints imoosed bv FISA and title 18 that

would seem to prohibit the activities undertaken in b1 • b3

are either best construed to

have been superseded by the Congressional Authorization for Use ofMilitarv Force. or. if

applicable, are unconstitutional as applied in this context.

b5
.
The final step ·in our analysis requires an examination of Fourth Amendment. (TS//Sl b1, b3 //NF)

b1, b3

under the

1n detennining the scope of executive power to conduct foreign intelligence searches, we

have already concluded above that there is an exception to the Fomth Amendment's warrant

requirement for such searches. See Part ILC. 1, supra. For that analysis, we assumed that some

activities

b1, b3

would be subject to the Fourth Amendment. It

remains for us now to turn to a more comprehensive examination of

b1• b3

under the

Fourth Amendment.

b1, b3

(T8118I- b1, b3 I'NF)

We recognize that there may be a sound argnment for the nmnosition that the Fourth

Amendment does not even apply, to a military operation such as

b1 ' b3 84 Assumin~

arguendo, however, that it does apply, we analyze

b1' b3

under the Fourth Amendment standard of reasonableness. As the Supreme Comi has explained,

this analysis requires a balancing of the governtnental interest at stake against the degree of

"See, e.g., Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, and Robert J, Delahunty, S]Jecial Counsel, Office of Legal Counsel, Re: Authorityfor Use ofMilitary Force To Combat Terrorist Activities Within the United States 25 (Oct. 23, 2001) ("In light ofthe wel!-settled understanding that constitutional constraints must give way in some respects to the exigencies ofwar, we think that the better view is that the Fourth Amendment does not apply to domestic military operations designed to deter and prevent further terrorist attacks,").
(U)

100 TOP SECRET/, b1, b3 COMlNT

b1,b3

'NOFORN

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 67 of 74

TOP SECRET,b1,b3 //COM£NT.

b1, b3

//NOFORN

intrusion into protected areas of privacy. See, e.g., Board oJEduc. v. Earls, 536 U.S. 822, 829 (2002) ("[W]c generally determine the reasonableness ofa search by balancing the nature of the intrusion on the individual's privacy against the promotion of legitimate governmental interests."). Under !hal balancing, we conclude that the searches at issue here are reasonable.
(~ b1, b3 /fmi.)

b1, b3, b5

A.

b1, b3

Interceptions Are Reasonable Under Balancing-

of-Interests Analysis (+8118!· b1• b3 /tl>!F)

Under the standard balancing of interests analysis used for gauging reasonableness, the

bi, b3

interceptions would pass muster under the Fourth Amendment. As the

Supreme Court has emphasized repeatedly, "[t]he touchstone of the Fourth Amendment is

reasonableness, and the reasonableness of a search is detennined by assessing, on the one hand,

the degree to which it intrudes upon an individual's privacy and, on the other, the degree to

which it is needed for the promotion oflegitimate governmental interests." United Stntes v.

Knights, 534 U.S. 112, 118-19 (2001). The Court has found a search reasonable when, under the

totality of the circumstances, the "importance of the govemmental interests" has outweighed the

"nature and quality of the intrusion on the individual's Fourth Amendment interests." Tennessee

v.

Garner, 471 U.S.

1, 8 (1985).

('l'SHSI·

1 b,

b3

1/NF)

We begin by addressing the individual privacy interests at stake. There can be no doubt that, as a general matter, interception of the content oftelephone communications implicates a significant privacy interest ofthe individual whose conversation is intercepted. The Supreme Court has made clear at least since Kntz v. United States, 389 U.S. 347 (1967), that individuals have a substantial and constitutionally protected reasonable expectation ofprivacv that their telephone conversations will not be subject to goverun1ental eavesdropping.
b1, b3, b5

Although the individual privacy interests at stake may he substantial, it

is weii recognized that a variety ofgovernmental interests- including routine law enforcement

and foreign-intelligence gathering- can overcome those interests.

(TSI/SI-

1 3 b ·b

/INF)

On the other side ofthe ledger here, the govenunent's interest in conducting the surveillance is the most compelling interest possible- securing the Nation from foreign attack in the midst of an armed conflict. One attack has already taken thousands oflives and placed the Nation in state of armed conflict. Defending the Nation from attack is perhaps the most

b1, b3, b5

101
TOP"SEeRET/1 b1, b3 /COMJNT-

b1,b3

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 68 of 74

TOP 8ECRET1b1, b3 //COMJNT.

b1, b3

1/NOFORN

important function of the federal government- and one ofthc few express obligations ofthe government enshrined in the Constitution. See U.S. Canst. art. IV,§ 4 ("The United States shall guarantee to every State in this Union a Republican Fom1 of Government, and shall protect each ofthem against Invasion ....")(emphasis added). As the Supreme Court has declared, "[i]t is
'obvious and unarguable' that no governmental interest is more compelling than the security of
the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981). Cf The Federalist No. 23, at 148
(Alexander Hamilton) (Jacob E. Cooke ed. 1961) ("[T]here can be no limitation of that authority, which is to provide for the defence and protection of the community, in any matter essential to its efficacy."). (+8-h~Sf· b1, b3 //NF)

As we have explained in previous memoranda,

b 1 • b3 • b5

the

government's overwhelming interest in detecting and thwarting further al Qaeda attacks is easily

sufficient to make reasonable the intrnsion into privacy involved in intercepting selected

communications. The nation has already suffered one attack thatdisrupted the Nation's financial

center for days and that successfully struck at the command and control center for the Nation's

military. In initiating

b1, b3

moreover, the President specifically concluded that al

Qaeda had the ability and intent to carry out further attacks that could result in massive loss of

life and destrnction ofproperty and that might even threaten the continuity ofthe federal

government. As noted above, the September 1l attack incorporated some aspects of a deliberate

de-capitation strike aimed at the Nation's capitaL

61, b3

(+SIISI· b1, b3 //NF)

Of course, because the magnitude of the government's interest here depends in part upon the. threat posed by al Qaeda, it might be possible for the weight that interest carries in the balance to change over time.
b1,b3, b5

It is thus significant for the reasonableness of the b1• b3

?togram that the President has established a system under which the surveillance is

authorized only for a limited period, typically for 30 to 45 days. This ensures that the

justification for the program is regularly reexamined. Indeed, each reauthorization is

accompanied by a fresh reassessment ofthe current threat posed by al Qaeda. As explained

above, before each reauthorization, the Director of Central Intelligence and the

b5

)repare a memorandum for the President highlighting some of the current infonnation

relating to threats from aJ Qaeda and providing their assessment as to whether al Qaeda still

poses a substantial threat of carrying out an attack in the United States. Each Presidential

Authorization of the program is thus based on a current threat assessment and includes the

President's specific determination that, based upon information available to him from all sources,

102 roP-SECRE'f11 b1. b3 'COMIN'F-

b1,b3

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 69 of 74

TOP SECRET, bl · b3 1/COI\ilNT

b1, b3

IING-FORN

b1, b3, b5

We should also note here

b1 • b3, b5

that, even based

upon the limited range of information available to us- which is less than the totality of

information upon which the President bases his decisions concerning the continuation of

b1, b3

- U1ere is ample basis on which to conclude that the threat posed by al Qaeda

contrnues to be or a sufficient magnitude to justify the b1 • b3

program for Fourth

Amendment purposes. We note here only some of the highlights that have appeared in the

tlu·eat-related intelligence reporting available to the President and relevant for evaluating the current threat posed by al Qa~da: ('fSH&l bl. b3 'INF)

•

b1, b3

•

b1, b3

•

b1, b3

103

TOP SECRETh bl, b3 1CGMJN'I'-

b1' b3

'NOFORN

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 70 of 74

+9P-SECRET b1, b3 1/E:OMINT

b1,b3

//NOFORN

b1, b3

b1, b3

t

b1, b3

t

b1, b3

t

b1, b3

Finally, as part of the balancing ofinterests to evaluate Fourth Amendment

reasonableness, we think it is significant that

b1' b3

is

limited solely to those international communications for which "there are reasonable grounds to

believe ... [that] a party to such conununication is a group engaged in international ten-orism, or

activities in preparation therefor, or any agent of such a group." March 11,2004 Authorization

The interception is thus targeted precisely at communications for which there is already a

reasonable basis to think there is a terrorism connection. This is relevant because the Supreme

104 ±OP SECRET// b1, b3 'COMINT

b1,b3

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 71 of 74

'f-0¥-&EBR-E'.f/, b1, b3 1/00MfN!F.-

b1, b3

1/NOFOR."'

Cotn1 has indicated that in evaluating reasonableness, one should consider the "efficacy of [the]

means for addressing the problem." Vernonia Sch. Dist. 47Jv. Acton, 515 U.S. 646,663 (1995);

see also Earls, 536 U.S. at 834 ("Finally, this Court must consider the nature and immediacy of

the government's concerns and the efficacy of the Policy in meeting them."). This does not

mean, of course, that reasonableness requires the "least intrusive" or most "narrowly tailored"

means for obtaining information. To the contrary, the Supreme Court has repeatedly rejected

such suggestions. See, e.g., Earls, 536 U.S. at 837 ("(T]his Court has repeatedly stated that

reasonableness under the Fourth Amendment does not require employing the least intrusive

means, because the logic of such elaborate less-restrictive-alternative arguments could raise

insuperable baniers to the exercise ofvhtually all search-and-seizure powers.") (intemal

quotation marks omitted); Vemonia, 515 U.S. at 663 ("We have repeatedly refused to declare

that only the 'leasi intn1sive' search practicable can be reasonable under the Fomih

Amendment."). Nevertheless, the Court has indicated Umt some consideration of the efficacy of

the search being implemented~ that is, some measure of fit between the search and the desired

objective~ is relevant to the reasonableness analysis.&6 Thus, a program ofsurveillance that

operated by listening to the content ofevery telephone call in the United States in order to find

those calls that might relate to terrorism would require us to consider a rather difference balance

here.

b1, b3

however, is precisely targeted to intercept solely those international

communications for which there are reasonable grounds already to believe there is a terrorism

cmmection, a limitation which further strongly supports the reasonableness of the searches. (±sii8I· b1, b3 1/NF)

In light of the considerations outlined above, taking into account the totality ofthe

circumstances, including the nature ofthe privacy interest at stake, the overwhelming

governmental interest involved, the tlrreat that al Qaeda continues to pose to the United States,

and the targeted nature of the surveillance at issue, we conclude tl1at the

b1• b3

continues to be reasonable uuder the Fourth Amendment.

(+8/ISI- b1, b3 I!Nl')

"TI1is cortSideration has often been relevant in cases that involve some form of suspicioniess searc11. Even in -those cases, moreover. the Court has made clear that 1he measure of efficacy required is not a stringent or demanding numerical measure of success. For example, in considering the use ofwarrantless road blocks to accomplish temporary seizures -of automobiles to screen drivers for signs ofdrunken driving, the Court noted that tl1e road blocks resulted in the arrest for drunken driving of only 1.6 percent of the drivers passing through the checkpoint. The Court concluded that this success rate established sufficient "efficacy" to sustain the constitutionality of the practice. See Michigan Dep't o[State Police v. Sitz, 496 U.S. 444,454-55 (1990). Shnilarly, the Court has approved the use of roadblocks that detected illegal immigrants in only 0,12 percent ofthe vehicles passing through the clteckpoint. See U111ted States v. Marti>~ez-Fuerte, 428 U.S. 543, 554 (1976), What the Court has warned against is the usc of random and standardlcss searches,giving potentially arbitrary discretion to
,o officers conducting the searches, for which there is .. empirical evidence11 to support the conclusion that they wil1
promote the government objective at hand. Sitz, 496 U.S. at 454. (U)

105 TOP SECRET/J bi · b3 '/COJ\fiNT

b1,b3

/NOFOR.'II

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 72 of 74

TOP SECRET. b1, b3 1/COMINT

b1,b3

I/N0ii'6RN

b1, b3, b5

b1,b3, b5

b1, b3, b5 b1, b3, b5

b1,b3,b5

106

TOP SEClUJl!l!/1 b1, b3 /00MINT

b1,b3

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 73 of 74

!f9P-SE-€-Riff,b1, b3 1/COMIN!f

b1,b3

b1, b3, b5

b1, b3, b5

b1, b3, b5

b1,b3,b5

107 !feP-8EeRE-T// b1, b3,~0MJNI'

b1,b3

NOFORN

Case 1:06-cv-00214-RCL Document 54-2 Filed 03/21/11 Page 74 of 74

9P-SECRET/b1· b3 .fiCOMlN'f

b1,b3

//NOFORN

b1, b3, b5

b1, b3, b5

CONCLUSION (U)
For the foregoing reasons, we conclude that, notwithstanding the prohibitions ofFISA and title I8, under the current circumstances ofthe ongoing armed conflict withal Qaeda and in . light ofthe broad authority conferred in the Congressional Authorization, the President, as COI\unanderin Chief and Chief Executive, has legal authority to authorize the NSA to conduct the signals-intelligence activities described above; that the activities, to the extent they are searches subject to the Fourth Amendment, comuort with the reauirements oftbe Fourth Amendment; and thus that the operation of the b1 • b3 program as described above is lawful. (-'F81181- b1• b3 1/NF)
Please let me know if we can be offurther assistance. (U)
~J.~III
Jack L. Goldsmith, Ill Assistant Attorney General

b1,b3.b5 b1. b3, bS

108 TOP SEGRE-'1'// b1• b3 /GGMINT-

b1. b3

 
 Case 1:06-cv-00214-RCL Document 54-3 Filed 03/21/11 Page 1 of 7 U..S. Deparlmeat of J.ustice
Office of~ Counsel
November 2. 2001
b1,b3,b5
b1,b3,b5

Case 1:06-cv-00214-RCL Document 54-3 Filed 03/21/11 Page 2 of 7
+OP SKCMT/b1· b3/SIJO~OON~OilORN
b1,b3,b5
b1,b3,b5

_

.,. • ._ .

. . . -.FISAGnly·pnmdcs a safe harb()r

forcleckO•~rveillanc:e.and.cannotratridtb8~resiel~'sabilitjtoaipgeiD·wamndesssearches "

that ~ the ~onal securi~..

b1,b3,b5

7. ·.·

Case 1:06-cv-00214-RCL Document 54-3 Filed 03/21/11 Page 3 of 7

TOP SECRJrr/ b1, b3 )1J()RCONINOP'-ORN

FISA puq>orts to be the -eX~ statutory means for conducting electronic suJVeillance fo,r

fnr,.icm fntf'lliPP.nr.r. ·

b1,b3,b5

. . . Such a reading'ofFISAwoukfbe ·Jl'.authMties: ~

en

unconSti~ional
-

jnfi:ingement .. - .

9-n

tb.e~residem•s

~cl~

b1,b3,b5

b1,b3,b5

9

Case 1:06-cv-00214-RCL Document 54-3 Filed 03/21/11 Page 4 of 7

TOP SBCM'F/

1 b,

b3

:110RGO~QPORN

b1,b3,b5

b1,b3,b5

, ..

b1,b3,b5

12

Case 1:06-cv-00214-RCL Document 54-3 Filed 03/21/11 Page 5 of 7
TOPS~/. b1• b3SIIORC9NINOPORN
b1,b3,b5

'.¢oNtltWon8190~·-wbiCh··a•JidoowDJQUtm.~fi.iO.iiaatdi:elr~·~:D•ec:e~sTseasityntc(tHiibtefPerneSdidtehnet•nsa·tiiroinh'efrr:o~mnt
. . ~-k:

.
. . ...

intdllgence .Pfhei'ins

in

direct

. . SUPpQrt

of militasy

ooenuons

does

not

tti~Rer

·.constitutional

ri~

uainst

illeaal

se8rches

-and ~b1,b3,b5

·11

Case 1:06-cv-00214-RCL Document 54-3 Filed 03/21/11 Page 6 of 7
TOP SECI\BTi b1, b3SfiOR€0NINOP6RN
b1,b3,b5

b1,b3,b5

b1,b3,b5

A ·warranUess &ea:rch-can ~

constitutional"wheo special needi, beyood the normll need for law. enforcenieni. make the warrant

and ·probabl~se requirement impractiCable."

·

·

b1,b3;bs

19

Case 1:06-cv-00214-RCL Document 54-3 Filed 03/21/11 Page 7 of 7

TOP SECRET/ b1• b33b'ORCON/NOPORN
b1,b3,b5

. .

. .

..10 govermneotal interest iS ~c:ompdling tbantbe security ofthe Nation." Haiv

-"· A2'ee. 453 U.S. 280. 307 (1981)..

b1,b3,b5

b1,b3,b5
. 21

 
 Case 1:06-cv-00096-RCL Document 1 Filed 01/19/06 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, N.W. Suite 200 Washington, DC 20009,
Plaintiff,
v.
DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, N.W. Washington DC 20530,
Defendant.

) )
) )
) )
) )
) C. A. No. _____________ )
) )
) )
) )

COMPLAINT FOR INJUNCTIVE RELIEF

1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. §

552. Plaintiff seeks injunctive and other appropriate relief for the expedited processing

and release of agency records requested by plaintiff from the Office of the Attorney

General and several other components of defendant Department of Justice. Jurisdiction and Venue

2. This Court has both subject matter jurisdiction over this action and personal

jurisdiction over the parties pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 552(a)(6)(C)(i).

This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331. Venue lies

in this district under 5 U.S.C. § 552(a)(4)(B).

Parties

3. Plaintiff Electronic Privacy Information Center (“EPIC”) is a public interest

research organization incorporated as a not-for-profit corporation in Washington, DC.

Case 1:06-cv-00096-RCL Document 1 Filed 01/19/06 Page 2 of 7
EPIC’s activities include the review of federal law enforcement activities and policies to determine their possible impacts on civil liberties and privacy interests. Among its other activities, EPIC publishes books, reports and a bi-weekly electronic newsletter. EPIC also maintains a heavily-visited site on the World Wide Web (www.epic.org) containing extensive information on privacy issues, including information EPIC has obtained from federal agencies under the FOIA.
4. Defendant Department of Justice (“DOJ”) is a Department of the Executive Branch of the United States Government. DOJ is an “agency” within the meaning of 5 U.S.C. § 552(f). The Office of the Attorney General (“Attorney General”), Office of Intelligence Policy and Review, Office of Legal Counsel, Office of Legal Policy and Office of Public Affairs are all components within defendant DOJ.
The Revelation of Warrantless Electronic Surveillance Conducted by the National Security Agency Within the United States and DOJ’s Role in That Activity 5. On December 16, 2005, the New York Times reported on its front page that
“after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying.” The Times further reported that the purported legal justification for the warrantless surveillance had been developed by DOJ attorneys and officials, and that DOJ “audited the N.S.A. program” and “expanded and refined a checklist to follow in deciding whether probable cause existed to start monitoring someone’s communications.”
6. In response to the revelation of warrantless domestic surveillance, Senator Arlen Specter, Chairman of the Senate Judiciary Committee, said within hours of the New York Times report that such surveillance is “wrong, clearly and categorically wrong
2

Case 1:06-cv-00096-RCL Document 1 Filed 01/19/06 Page 3 of 7
. . . This will be a matter for oversight by the Judiciary Committee as soon as we can get to it in the new year — a very, very high priority item.”
Plaintiff’s FOIA Requests and Request for Expedited Processing 7. By four letters dated December 16, 2005, to the Attorney General, Office of Intelligence Policy and Review, Office of Legal Counsel, and Office of Legal Policy, plaintiff requested under the FOIA agency records “concerning a presidential order or directive authorizing the National Security Agency (‘NSA’), or any other component of the intelligence community, to conduct domestic surveillance without the prior authorization of the Foreign Intelligence Surveillance Court (‘FISC’).” Plaintiff stated that the records it sought included (but were not limited to) the following items: a. an audit of NSA domestic surveillance activities; b. guidance or a “checklist” to help decide whether probable cause exists to monitor an individual’s communications; c. communications concerning the use of information obtained through NSA domestic surveillance as the basis for DOJ surveillance applications to the FISC; and d. legal memoranda, opinions or statements concerning increased domestic surveillance, including one authored by John C. Yoo shortly after September 11, 2001 discussing the potential for warrantless use of enhanced electronic surveillance techniques. 8. In its letters to the Attorney General, Office of Intelligence Policy and Review, Office of Legal Counsel, and Office of Legal Policy, plaintiff asked that the processing of its FOIA requests be expedited because they 1) involve a “matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence,” 28 C.F.R. § 16.5(d)(1)(iv); and 2) pertain to a matter about which there is an “urgency to inform the public about an actual or alleged
3

Case 1:06-cv-00096-RCL Document 1 Filed 01/19/06 Page 4 of 7
Federal government activity,” and the requests were made by “a person primarily engaged in disseminating information,” 5 U.S.C. § 552(a)(6)(E)(v)(II).
9. By letter dated December 16, 2005, plaintiff provided copies of its four request letters to DOJ’s Director of Public Affairs, who, pursuant to 28 C.F.R. § 16.5(d)(2), is responsible for making expedition determinations under the standard set forth at 28 C.F.R. § 16.5(d)(1)(iv).
10. In support of its requests for expedited processing, plaintiff noted the pendency of Congressional hearings on NSA’s warrantless domestic surveillance and stated that, “[i]t is critical for Congress and the public to have as much information as possible about the DOJ’s role in this surveillance to fully consider and determine its propriety.”
11. Plaintiff transmitted its letters to the Attorney General, Office of Intelligence Policy and Review, Office of Legal Counsel, Office of Legal Policy and Director of Public Affairs, referenced in ¶¶ 7-9, by facsimile on December 16, 2005. On information and belief, copies of all of the referenced letters were received by the designated recipients on that day.
DOJ’s Responses to Plaintiff’s Request for Expedited Processing and Subsequent Failure to Timely Comply With Plaintiff’s FOIA Requests 12. By letter dated December 21, 2005, DOJ’s Office of Information and Privacy (“OIP”) responded to plaintiff’s December 16 letters “on behalf of the Offices of the Attorney General and Legal Policy.” In its letter, OIP advised plaintiff of its determination that “your request for expedited processing under [28 C.F.R. § 16.5(d)(1)(ii)] should be granted.” Notwithstanding that determination, OIP further stated that “we will be unable to comply with the [statutory] twenty-working-day time
4

Case 1:06-cv-00096-RCL Document 1 Filed 01/19/06 Page 5 of 7
limit in this case, as well as the ten additional days provided in the statute.” OIP did not inform plaintiff of an anticipated date for the completion of the processing of plaintiff’s FOIA requests.
13. By letter dated January 6, 2006, the Office of Intelligence Policy and Review (“OIPR”) responded to plaintiff’s December 16 letter and stated that “the Office of Public Affairs granted your request for expedited treatment.” OIPR further stated that “your request will be reviewed ahead of others routinely processed on a first-in, first-out basis,” but did not inform plaintiff of an anticipated date for the completion of the processing of plaintiff’s FOIA request.
14. To date, plaintiff has received no communications concerning its requests directly from the Office of Legal Counsel or the Director of Public Affairs.
15. Notwithstanding defendant DOJ’s purported decision to expedite the processing of plaintiff’s FOIA requests, to date, none of the DOJ components to whom the requests were directed has completed the processing of plaintiff’s FOIA requests or informed plaintiff of an anticipated date for the completion of the processing of plaintiff’s FOIA requests.
16. Notwithstanding defendant DOJ’s purported decision to expedite the processing of plaintiff’s FOIA requests, all of the DOJ components to whom the requests were directed have violated the generally applicable statutory time limit for the processing of any FOIA request.
17. Plaintiff has exhausted the applicable administrative remedies. 18. Defendant DOJ and its components have wrongfully withheld the requested records from plaintiff.
5

Case 1:06-cv-00096-RCL Document 1 Filed 01/19/06 Page 6 of 7
CAUSE OF ACTION Violation of the Freedom of Information Act for
Wrongful Withholding of Agency Records 19. Plaintiff repeats and realleges paragraphs 1-18. 20. The Office of the Attorney General, Office of Intelligence Policy and Review, Office of Legal Counsel, and Office of Legal Policy have wrongfully withheld agency records requested by plaintiff by failing to comply with the statutory time limit for the processing of FOIA requests. 21. Plaintiff has exhausted the applicable administrative remedies with respect to defendant DOJ’s components’ wrongful withholding of the requested records. 22. Plaintiff is entitled to injunctive relief with respect to the release and disclosure of the requested documents.
Requested Relief WHEREFORE, plaintiff prays that this Court:
A. order defendant DOJ and its components to process immediately the requested records in their entirety; B. order defendant DOJ and its components, upon completion of such expedited processing, to disclose the requested records in their entirety and make copies available to plaintiff; C. provide for expeditious proceedings in this action; D. award plaintiff its costs and reasonable attorneys fees incurred in this action; and E. grant such other relief as the Court may deem just and proper.
6

Case 1:06-cv-00096-RCL Document 1 Filed 01/19/06 Page 7 of 7
Respectfully submitted,
________________________________________ DAVID L. SOBEL D.C. Bar No. 360418 MARCIA HOFMANN D.C. Bar. No. 484136 MARC ROTENBERG D.C. Bar. No. 422825 ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, N.W. Suite 200 Washington, DC 20009 (202) 483-1140 Counsel for Plaintiff
7

 
 Case: 1:06-cv-214 As of: 04/01/2017 01:36 PM EDT 1 of 12
CLOSED,TYPE−I
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:06−cv−00214−RCL

AMERICAN CIVIL LIBERTIES UNION et al v. UNITED STATES DEPARTMENT OF JUSTICE Assigned to: Chief Judge Royce C. Lamberth Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 02/07/2006 Date Terminated: 03/31/2014 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

AMERICAN CIVIL LIBERTIES UNION

represented by Ann Beeson AMERICAN CIVIL LIBERTIES UNION 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2601 Fax: (212) 549−2629 Email: annb@aclu.org TERMINATED: 06/01/2007 LEAD ATTORNEY

Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE NATION'S CAPITAL 4301 Connecticut Avenue, NW Suite 434 Washington, DC 20008 (202) 457−0800 x1004 Fax: (202) 457−0805 Email: artspitzer@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY 535 West 116 Street 314 Low Library New York, NY 10027 (212) 854−9600 Fax: (212) 854−7997 Email: jameel.jaffer@knightcolumbia.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alexander Abdo AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2517 Fax: (212) 549−2517 Email: aabdo@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Catherine Crump

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AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 519−7806 Fax: (212) 549−2651 Email: ccrump@aclu.org TERMINATED: 10/02/2006 PRO HAC VICE

Melissa Goodman AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2622 Fax: (212) 549−2583 Email: mgoodman@aclu.org TERMINATED: 02/16/2011 PRO HAC VICE

Nasrina Bargzie AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 19th Floor New York, NY 10004 (212) 549−2517 Fax: (212) 549−2651 Email: nbargzie@aclu.org TERMINATED: 09/08/2008 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
AMERICAN CIVIL LIBERTIES UNION FOUNDATION

represented by Ann Beeson (See above for address) TERMINATED: 06/01/2007 LEAD ATTORNEY

Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alexander Abdo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Catherine Crump (See above for address) TERMINATED: 10/02/2006 PRO HAC VICE

Melissa Goodman

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(See above for address) TERMINATED: 02/16/2011 PRO HAC VICE

Nasrina Bargzie (See above for address) TERMINATED: 09/08/2008 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
NATIONAL SECURITY ARCHIVE FUND, INC.

represented by Ann Beeson (See above for address) TERMINATED: 06/01/2007 LEAD ATTORNEY

Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alexander Abdo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Catherine Crump (See above for address) TERMINATED: 10/02/2006 PRO HAC VICE

Melissa Goodman (See above for address) TERMINATED: 02/16/2011 PRO HAC VICE

Meredith Fuchs CONSUMER FINANCIAL PROTECTION BUREAU Office of General Counsel 1700 G Street, N.W. Washington, DC 20552 (202) 435−7414 Email: meredith.fuchs@cfpb.gov TERMINATED: 03/17/2010 ATTORNEY TO BE NOTICED

Nasrina Bargzie (See above for address) TERMINATED: 09/08/2008 PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant

represented by

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UNITED STATES DEPARTMENT OF JUSTICE

Caroline Lewis Wolverton U.S. Department of Justice Civil Division 20 Massachusetts Ave., NW Suite 7150 Washington, DC 20001 (202) 514−0265 Fax: (202) 616−8470 Email: caroline.lewis−wolverton@usdoj.gov TERMINATED: 12/22/2010 LEAD ATTORNEY

Marcia Berman UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Room 7132 Washington, DC 20530 (202) 514−2205 Fax: (202) 616−8470 Email: marcia.berman@usdoj.gov ATTORNEY TO BE NOTICED

Rupa Bhattacharyya U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION P.O. Box 883 Washington, DC 20530 (202) 305−0008 Fax: (202) 616−4314 Email: rupa.bhattacharyya@usdoj.gov TERMINATED: 09/09/2008

Date Filed 02/07/2006
02/07/2006
02/07/2006
02/07/2006
02/07/2006 02/08/2006

# Docket Text
1 COMPLAINT against UNITED STATES DEPARTMENT OF JUSTICE (Filing fee $ 250) filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC..(lc, ) (Entered: 02/08/2006)
2 LCvR 7.1 − CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC. (lc, ) (Entered: 02/08/2006)
3 MOTION to Consolidate Cases by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. (Attachments: # 1 Text of Proposed Order)(lc, ) (Entered: 02/08/2006)
4 NOTICE OF RELATED CASE by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. Case related to Case No. 06−0096. (lc, ) (Entered: 02/08/2006)
SUMMONS (3) Issued as to UNITED STATES DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (lc, ) (Entered: 02/08/2006)
5 SUMMONS Returned Executed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. UNITED STATES DEPARTMENT OF JUSTICE served on 2/7/2006, answer due 3/9/2006. (Spitzer, Arthur) (Entered: 02/08/2006)

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02/08/2006 02/08/2006 02/08/2006
02/08/2006
02/09/2006 02/09/2006
02/09/2006 02/10/2006
02/15/2006
02/16/2006 02/27/2006
02/27/2006 03/06/2006

6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 02/07/2006. (Spitzer, Arthur) (Entered: 02/08/2006)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney. (Spitzer, Arthur) (Entered: 02/08/2006)
8 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Ann Beeson. :Address− ACLU, 125 Broad Street, NY NY 10004. Phone No. − 212−549−2601. Fax No. − 212−549−2651 by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. (Attachments: # 1 Declaration of Ann Beeson)(Spitzer, Arthur) (Entered: 02/08/2006)
9 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Catherine Crump. :Address− ACLU, 125 Broad Street, NY NY 10004. Phone No. − 212−519−7806. Fax No. − 212−549−2651 by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. (Attachments: # 1 Declaration of Catherine Crump)(Spitzer, Arthur) (Entered: 02/08/2006)
10 Order granting 3 plaintiffs' motion to consolidate. Signed by Judge Henry H. Kennedy, Jr., on February 9, 2006. (FL, ) (Entered: 02/09/2006)
Minute order granting 8 and 9 motions for admission, pro hac vice of Ann Beeson and Catherine Crump as additional counsel for plaintiffs. Ann Beeson and Catherine Crump are permitted to appear pro hac vice as additional counsel for plaintiffs in this case. Signed by Judge Henry H. Kennedy, Jr., on February 9, 2006. (FL, ) (Entered: 02/09/2006)
Cases associated. All further pleadings and other matters related to the consolidated cases be filed in Electronic Privacy Information Center v. Dept of Justice, Civil Action 06−00096.(lc, ) (Entered: 02/09/2006)
Minute Entry for proceedings held before Judge Henry H. Kennedy : Motion Hearing held on 2/10/2006 re 3 MOTION for Preliminary Injunction filed by ELECTRONIC PRIVACY INFORMATION CENTER,. Heard and taken under advisement. (Court Reporter Annie Shaw.) Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(rew, ) (Entered: 02/10/2006)
11 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond to EPIC Plaintiff's Complaint by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 02/15/2006)
12 Memorandum Opinion and Order. Signed by Judge Henry H. Kennedy, Jr., on February 16, 2006. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) (Entered: 02/16/2006)
Minute order granting 11 defendant's unopposed motion for an extension of time in which to answer or otherwise respond to plaintiff's complaint. Defendant shall have up to and including March 9, 2006, within which to answer, move, or otherwise respond to plaintiff's complaint. Signed by Judge Henry H. Kennedy, Jr., on February 27, 2006. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) Modified on 2/27/2006 (FL, ). (Entered: 02/27/2006)
Set/Reset Deadlines: Answer due by 3/9/2006. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(rew, ) (Entered: 02/27/2006)
13 Unopposed MOTION to Stay (Partial) of the Court's February 16, 2006, Order Pending Resolution of the Defendant's Forthcoming Motion Seeking Relief from that Order by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 03/06/2006)

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03/07/2006 03/07/2006
03/09/2006 03/09/2006 03/23/2006 03/24/2006 03/29/2006 05/26/2006 05/26/2006 05/28/2006 05/29/2006 05/30/2006 07/05/2006
07/26/2006

14 Order granting 13 defendant's unopposed motion for a partial stay of the court's February 16, 2006, order. Signed by Judge Henry H. Kennedy, Jr., on March 7, 2006. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) Modified on 3/7/2006 (FL, ). (Entered: 03/07/2006)
15 MOTION Expedited Motion for Relief from Court's Order of February 16, 2006 by DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A −− J. Huvelle Order# 2 Exhibit B −− J. Kessler Order# 3 Exhibit C −− O'Connor Order# 4 Exhibit D −− ACLU Docket# 5 Exhibit E −− PFAW Order# 6 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 03/07/2006)
16 ANSWER to Complaint of Electronic Privacy Information Center by DEPARTMENT OF JUSTICE.Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 03/09/2006)
17 ANSWER to Complaint of the American Civil Liberties Union, et al. by UNITED STATES DEPARTMENT OF JUSTICE.(Bhattacharyya, Rupa) (Entered: 03/09/2006)
18 NOTICE of Appearance by Meredith Fuchs on behalf of NATIONAL SECURITY ARCHIVE FUND, INC. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Fuchs, Meredith) (Entered: 03/23/2006)
19 Order re 13 granting in part and denying in part defendant's expedited motion seeking relief from the court's February 16, 2006, order. Signed by Judge Henry H. Kennedy, Jr., on March 24, 2006. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) (Entered: 03/24/2006)
Set/Reset Hearings: Status Conference set for 5/31/2006 at 09:45 AM in Courtroom 27A before Judge Henry H. Kennedy. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(rew, ) (Entered: 03/29/2006)
20 NOTICE OF SUBSTITUTION OF COUNSEL by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER Substituting for attorney David L. Sobel Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Rotenberg, Marc) (Entered: 05/26/2006)
21 NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney Marcia Clare Hofmann terminated. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Hofmann, Marcia) (Entered: 05/26/2006)
MINUTE ORDER granting 21 Joint Motion to Continue May 31, 2006, status hearing. The clerk of the court will reschedule the status hearing to convene after July 7, 2006, when the business of the court permits. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Kennedy, Henry) (Entered: 05/28/2006)
22 NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney David L. Sobel terminated. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Sobel, David) (Entered: 05/29/2006)
Set/Reset Hearings: Status Conference set for 5/31/2006 at 9:45 AM is OFF and reset for 7/26/2006 at 09:45 AM in Courtroom 27A before Judge Henry H. Kennedy. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(rew, ) (Entered: 05/30/2006)
Minute order granting 23 defendant's unopposed motion for an extension of time in which to complete processing of plaintiff's Freedom Of Information Act Request. Defendant shall have up to and including July 21, 2006, in which to complete the processing of plaintiff's request under the Freedom of Information Act, 5 U.S.C. Sec. 552. Signed by Judge Henry H. Kennedy, Jr., on July 5, 2006. Official paperless order Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) Modified on 8/7/2006 (FL, ). (Entered: 07/05/2006)
Minute Entry for proceedings held before Judge Henry H. Kennedy: Status Conference held on 7/26/2006. An order will be issued by the Court. (Court Reporter Annie

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07/27/2006 07/28/2006 08/07/2006 08/08/2006 09/07/2006 09/08/2006
09/08/2006 09/13/2006
09/14/2006 09/26/2006
09/27/2006

Shaw.) Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(tth, ) (Entered: 07/26/2006)
23 Scheduling Order. Signed by Judge Henry H. Kennedy, Jr., on July 27, 2006. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) (Entered: 07/27/2006)
Set/Reset Deadlines: Cross Motions due by 9/28/2006. Response to Cross Motions due by 10/18/2006. Reply to Cross Motions due by 11/2/2006. Summary Judgment motions due by 9/8/2006. Response to Motion for Summary Judgment due by 9/28/2006. Reply to Motion for Summary Judgment due by 10/18/2006. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(adc) (Entered: 07/28/2006)
ENTERED IN ERROR.....MINUTE ORDER canceling the Initial Scheduling Conference set for 8/10/06 at 2:30 p.m.. Signed by Judge Henry H. Kennedy on August 7, 2006. (adc) Modified on 8/8/2006 (adc, ). (Entered: 08/07/2006)
NOTICE OF CORRECTED DOCKET ENTRY: Entries made on 8/7/06 canceling the status hearing entered in error because the entries should have been made in 06−406.(adc) (Entered: 08/08/2006)
NOTICE OF CORRECTED DOCKET ENTRY: re 25 MOTION for Extension of Time to File Motion for Summary Judgment was entered in error and refiled as document no. 27 Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(td, ) (Entered: 09/08/2006)
Minute order granting 26 defendant's motion for a one−week extension of time in which to file its motion for summary judgment. Defendant shall have up to and including September 15, 2006, in which to file a motion for summary judgment. Signed by Judge Henry H. Kennedy, Jr., on September 8, 2006. Official paperless order Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) (Entered: 09/08/2006)
Minute order granting 27 defendant's motion for leave to exceed the page limits. Defendant shall have leave to exceed the page limits allowed by the local rules with respect to its forthcoming motion for summary judgment. Signed by Judge Henry H. Kennedy on September 8, 2006. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) (Entered: 09/08/2006)
24 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Nasrina Bargzie. :Address− ACLU, 125 Broad Street, New York NY 10004. Phone No. − 212−549−2517. Fax No. − 212−549−2651 by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. (Attachments: # 1 Declaration of Nasrina Bargzie)(Spitzer, Arthur) (Entered: 09/13/2006)
Minute order granting 24 motion for admission, pro hac vice, of Nasrina Bargzie as additional counsel for plaintiffs. Nasrina Bargzie is permitted to appear pro hac vice on behalf of plaintiffs, American Civil Liberties Union, in the United States District Court for the District of Columbia. Signed by Judge Henry H. Kennedy, Jr., on September 14, 2006. Official paperless order (FL, ) (Entered: 09/14/2006)
25 Unopposed MOTION for Extension of Time to Oppose Defendant's Motion for Summary Judgment and to File Cross−Motions for Summary Judgment by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Spitzer, Arthur) (Entered: 09/26/2006)
Minute order granting 31 plaintiffs' unopposed motion for extension of time in which to file their opposition to the defendant's motion for summary judgment and their cross−motion for summary judgment. Plaintiffs shall have up to and including October 13, 2006, in which to file an opposition to the defendant's motion for summary judgment and cross−motion for summary judgment. Signed by Judge Henry H. Kennedy on September 27, 2006. Official paperless order Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) (Entered: 09/27/2006)

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09/28/2006 10/02/2006 10/13/2006 10/13/2006 10/13/2006 10/17/2006 10/20/2006
11/27/2006 05/19/2007 05/23/2007

26 MOTION to Withdraw as Attorney Catherine Crump by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 09/28/2006)
Minute order granting 26 motion of Catherine Crump to withdraw as counsel. Attorney Catherine Crump's representation, as one of plaintiffs' counsel, is withdrawn. Signed by Judge Henry H. Kennedy, Jr., on October 2, 2006. Official paperless order (FL, ) (Entered: 10/02/2006)
27 Consent MOTION for Leave to File Excess Pages in Opposition to Defendant's Motion for Summary Judgment by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Spitzer, Arthur) (Entered: 10/13/2006)
28 Memorandum in opposition to re 29 MOTION for Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Spitzer, Arthur) (Entered: 10/13/2006)
29 MOTION In Camera Review of Withheld Records re 33 Memorandum in Opposition,, 29 MOTION for Summary Judgment by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Spitzer, Arthur) (Entered: 10/13/2006)
Minute order granting 27 plaintiffs' unopposed motion for leave to exceed the page limit. Plaintiffs' forty−eight page opposiiton to defendant's motion for summary judgment is deemed filed. Signed by Judge Henry H. Kennedy, Jr., on October 17, 2006. Official paperless order Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) Modified on 10/17/2006 (FL, ). (Entered: 10/17/2006)
Minute order granting 35 defendant's unopposed motion to modify the briefing schedule. Defendant shall have through and including November 9, 2006, in which to file an opposition to plaintiffs? cross motion, and a reply in support of the pending motion for summary judgment in Civil Action 06−0096, and Civil Action 06−00214. Plaintiffs shall have through and including November 28, 2006, in which to file a cross−reply. Signed by Judge Henry H. Kennedy, Jr., on October 20, 2006. Official paperless order Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) (Entered: 10/20/2006)
30 REPLY to opposition to motion re 34 MOTION In Camera Review of Withheld Records re 33 Memorandum in Opposition,, 29 MOTION for Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Spitzer, Arthur) (Entered: 11/27/2006)
31 MOTION to Withdraw as Attorney Ann Beeson by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC. (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 05/19/2007)
32 ENTERED IN ERROR.....MOTION for Leave to File Supplemental Memorandum by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC., AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC. (Attachments: # 1 Supplementary Memorandum# 2 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Spitzer, Arthur) Modified on 5/24/2007 (lc, ). (Entered:

Case: 1:06-cv-214 As of: 04/01/2017 01:36 PM EDT 9 of 12

05/23/2007
05/24/2007 05/24/2007
05/29/2007 06/01/2007 06/07/2007 07/31/2007 09/05/2007 10/11/2007
10/17/2007 10/19/2007

05/23/2007)
33 ENTERED IN ERROR.....MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Jameel Jaffer, :Firm− American Civil Liberties Union Foundation, :Address− 125 Broad Street, New York, NY 10004. Phone No. − 212−519−7814. Fax No. − 212−549−2651 by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC. (Attachments: # 1 Declaration of Jameel Jaffer# 2 Text of Proposed Order)(Spitzer, Arthur) Modified on 5/24/2007 (lc, ). (Entered: 05/23/2007)
NOTICE OF CORRECTED DOCKET ENTRY: re 32 MOTION for Leave to File, 33 MOTION for Leave to Appear Pro Hac Vice were entered in error because all pleadings and other matters related to the consolidated cases be file in Electronic Privacy Information Center v. Dept of Justice, Civil Action 06−00096. (lc, ) (Entered: 05/24/2007)
Minute order granting (40) motion for admission, pro hac vice, of Jameel Jaffer as additional counsel for plaintiffs in case 1:06−cv−00096−HHK. Jameel Jaffer is permitted to appear pro hac vice on behalf of plaintiffs, American Civil Liberties Union, American Civil Liberties Union Foundation, and The National Security Archive, to the Bar of the United States District Court for the District of Columbia. Signed by Judge Henry H. Kennedy, Jr., on May 24, 2007. Official paperless order Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(FL, ) (Entered: 05/24/2007)
MINUTE ORDER granting 25 Motion for Extension of Time nunc pro tunc September 26, 2006. (Kennedy, Henry) (Entered: 05/29/2007)
Minute order granting 31 motion of Ann Beeson to withdraw as counsel. Ann Beeson appearance as pro hac vice on behalf of plaintiffs is withdrawn. Signed by Judge Henry H. Kennedy, Jr., on June 1, 2007. Official paperless order (FL, ) (Entered: 06/01/2007)
Reset Deadlines: Defendant shall have up to and including June 13, 2007, within which to file a response to plaintiffs' motion for leave to file a supplemental memorandum. Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(ztj, ) (Entered: 06/11/2007)
Minute order granting (39) motion for leave to file supplemental memorandum and (42) motion for leave to file exhibits to plaintiffs supplemental memorandum in case 1:06−cv−00096−HHK and the associated case: 1:06−cv−00214−HHK. The proposed submissions are deemed filed. Signed by Judge Henry H. Kennedy, Jr., on July 31, 2007. Official paperless order (FL, ) (Entered: 07/31/2007)
34 Memorandum Opinion and Order. Signed by Judge Henry H. Kennedy, Jr., on September 5, 2007. Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(FL, ) (Entered: 09/05/2007)
Minute order granting 49 defendant's unopposed motion for an extension of time in which to file its renewed motion for summary judgment. Defendant shall have up to and including October 18, 2007, in which to file a renewed motion for summary judgment with respect to all components except for the Federal Bureau of Investigation (FBI), and up to and including November 20, 2007, in which to file its renewed motion for summary judgment with respect to the FBI, in the above−captioned consolidated cases. 1:06−cv−00096−HHK Signed by Judge Henry H. Kennedy, Jr., on October 11, 2007. Official paperless order Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(FL, ) Modified to edit link on 10/12/2007 (nmw, ). (Entered: 10/11/2007)
Reset Deadlines: Defendant shall have up to and including October 18, 2007, in which to file a renewed motion for summary judgment with respect to all components except for the Federal Bureau of Investigation (FBI), and up to and including November 20, 2007, in which to file its renewed motion for summary judgment with respect to the FBI, (tj ) (Entered: 10/17/2007)
35 Second MOTION for Summary Judgment by DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Exhibit A −

Case: 1:06-cv-214 As of: 04/01/2017 01:36 PM EDT 10 of 12

10/19/2007 11/21/2007
01/02/2008
01/03/2008 01/15/2008
09/08/2008 09/08/2008 09/08/2008 09/09/2008 10/31/2008 11/17/2008 11/17/2008

Redacted Bradbury Declaration# 2 Exhibit B − Redacted Rowan Declaration# 3 Errata C − NSA Declaration)Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 10/19/2007)
36 NOTICE of Lodging Classified Exhibits in Support of Renewed Motion for Summary Judgment by DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 10/19/2007)
37 SUPPLEMENTAL MEMORANDUM to re (35 in 1:06−cv−00214−HHK, 50 in 1:06−cv−00096−HHK) MOTION for Summary Judgment Supplemental Submission on Behalf of the FBI filed by DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A −− Second Hardy Declaration# 2 Ex. A to Hardy Decl.# 3 Ex. B to Hardy Decl. pt.1# 4 Ex. B to Hardy Decl. pt.2# 5 Ex. B to Hardy Decl. pt.3)Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 11/21/2007)
38 ENTERED IN ERROR.....MOTION for Extension of Time to File Response/Reply as to (57 in 1:06−cv−00096−HHK) MOTION Renewed, for In Camera Review of Withheld Records and to Reply in Support of Defendant's Renewed Motion for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Bhattacharyya, Rupa) Modified on 1/3/2008 (lc, ). (Entered: 01/02/2008)
NOTICE OF CORRECTED DOCKET ENTRY: re 38 MOTION for Extension of Time to File Response/Reply was entered in error because filings should be made only in the lead case of 06−0096. (lc, ) (Entered: 01/03/2008)
ORDER granting 59 Defendant's Motion for an Extension of Time in which to File its Opposition to Plainitffs' Renewed Motion for In Camera Review and its Reply Brief in Support of its Pending Renewed Motion for Summary Judgment. Accordingly, defendant's opposition and reply brief are due by January 30, 2008. Signed by Judge Henry H. Kennedy on January 15, 2008. Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK (NP) (Entered: 01/15/2008)
39 MOTION to Withdraw as Attorney Nasrine Bargzie by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 09/08/2008)
ORDER granting 39 Motion of Nasrina Bargzie to Withdraw as Counsel. Attorney Nasrina Bargzie is terminated from this case. Signed by Judge Henry H. Kennedy, Jr. on September 8, 2008. (NP) (Entered: 09/08/2008)
ORDER granting (65) Motion of Nasrina Bargzie to Withdraw as Counsel. Attorney Nasrina Bargzie is terminated in case 1:06−cv−00096−HHK. Signed by Judge Henry H. Kennedy, Jr. on September 8, 2008. Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK (NP) (Entered: 09/08/2008)
40 NOTICE OF SUBSTITUTION OF COUNSEL by Caroline Lewis Wolverton on behalf of DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE Substituting for attorney Rupa Bhattacharyya Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Wolverton, Caroline) (Entered: 09/09/2008)
41 MEMORANDUM OPINION & ORDER granting in part and denying in part 50 , 54 Defendant's Renewed Motion for Summary Judgment, and granting in part and denying in part 57 Plaintiff's Renewed Motion for In Camera Review. Signed by Judge Henry H. Kennedy, Jr. on October 31, 2008. Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK (NP) (Entered: 10/31/2008)
42 NOTICE of Lodging of Classified Documents for In Camera Review by UNITED STATES DEPARTMENT OF JUSTICE re 41 Order,, Memorandum & Opinion, (Wolverton, Caroline) (Entered: 11/17/2008)
43 SUPPLEMENTAL MEMORANDUM to re 35 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration Redacted Supplemental Declaration of Steven G. Bradbury)(Wolverton, Caroline)

Case: 1:06-cv-214 As of: 04/01/2017 01:36 PM EDT 11 of 12

03/06/2009
03/17/2009 10/28/2009 12/17/2009 03/17/2010 05/11/2010
05/13/2010 12/22/2010 12/23/2010 12/23/2010 01/14/2011
01/18/2011

(Entered: 11/17/2008)
44 NOTICE of Filing New Authority by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7)Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Rotenberg, Marc) (Entered: 03/06/2009)
45 RESPONSE re (44 in 1:06−cv−00214−HHK) Notice (Other), Notice (Other) of Filing filed by DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE. Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Wolverton, Caroline) (Entered: 03/17/2009)
46 NOTICE of Intent to Respond by DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE re (70 in 1:06−cv−00096−HHK) Supplemental Memorandum, Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Wolverton, Caroline) (Entered: 10/28/2009)
47 MEMORANDUM re (35 in 1:06−cv−00214−HHK, 50 in 1:06−cv−00096−HHK) MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE by DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE. Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Wolverton, Caroline) (Entered: 12/17/2009)
48 NOTICE OF WITHDRAWAL OF APPEARANCE as to NATIONAL SECURITY ARCHIVE FUND, INC.. Attorney Meredith Fuchs terminated. Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Fuchs, Meredith) (Entered: 03/17/2010)
49 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Melissa Goodman, :Firm− American Civil Liberties Union Foundation, :Address− 125 Broad Street, New York, NY 10004. Phone No. − 212−549−2622. Fax No. − 212−549−2651 by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Affidavit of Melissa Goodman, # 2 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Spitzer, Arthur) (Entered: 05/11/2010)
MINUTE ORDER granting 49 Motion for Pro Hac Vice Admission of Melissa Goodman. Accordingly, Ms. Goodman is admitted pro hac vice to appear in this matter on behalf of plaintiffs. Signed by Judge Henry H. Kennedy, Jr. on May 13, 2010. (NP) (Entered: 05/13/2010)
50 ENTERED IN ERROR.....NOTICE of Appearance by Marcia Berman on behalf of DEPARTMENT OF JUSTICE Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Berman, Marcia) Modified on 12/23/2010 (dr). (Entered: 12/22/2010)
51 NOTICE OF SUBSTITUTION OF COUNSEL − by Marcia Berman on behalf of UNITED STATES DEPARTMENT OF JUSTICE Substituting for attorney Caroline Lewis Wolverton (dr) (Entered: 12/23/2010)
NOTICE OF CORRECTED DOCKET ENTRY: re 50 Notice of Appearance was entered in error because it does not reflect the document filed. A Notice of Substitution of Counsel has been filed as DE# 51 (dr) (Entered: 12/23/2010)
52 STIPULATION (Joint Proposed Stipulation) by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, ELECTRONIC PRIVACY INFORMATION CENTER, NATIONAL SECURITY ARCHIVE FUND, INC., AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Abdo, Alexander) (Entered: 01/14/2011)
53 ORDER accepting 78 the parties' Joint Proposed Stipulation Regarding Processing of Office of Legal Counsel Memoranda. Signed by Judge Henry H. Kennedy, Jr. on January 18, 2011. (lchhk3) (Entered: 01/18/2011)

Case: 1:06-cv-214 As of: 04/01/2017 01:36 PM EDT 12 of 12

02/16/2011
03/21/2011
04/08/2011 04/15/2011 12/15/2011 03/01/2012 03/31/2014 03/31/2014

MINUTE ORDER granting 80 Motion to Withdraw as Counsel. Accordingly, attorney Melissa Goodman is hereby terminated from case 1:06−cv−00096−HHK and 1:06−cv−00214−HHK. Signed by Judge Henry H. Kennedy, Jr. on February 16, 2011. Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK (NP) (Entered: 02/16/2011)
54 NOTICE of Filing by DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE re (53 in 1:06−cv−00214−HHK) Order (Attachments: # 1 cover letter, # 2 portions of OLC 54, # 3 portions of OLC 131)Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Berman, Marcia) (Entered: 03/21/2011)
56 RESPONSE re 54 Notice (Other), Notice (Other) filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (znmw, ) (Entered: 04/18/2011)
55 RESPONSE re 56 Def.'s Response to Plaintiffs' Response to Def.'s Notice of Filing by DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Berman, Marcia) Modified to add link on 4/18/2011 (znmw, ). (Entered: 04/15/2011)
57 Case reassigned to Chief Judge Royce C. Lamberth. Judge Henry H. Kennedy no longer assigned to the case. (ds) (Entered: 12/16/2011)
58 STATUS REPORT Defendant's Response to Plaintiffs' Status Report by DEPARTMENT OF JUSTICE. Associated Cases: 1:06−cv−00096−RCL, 1:06−cv−00214−RCL(Berman, Marcia) (Entered: 03/01/2012)
59 MEMORANDUM re: Order on 35 Motion for Summary Judgment. Signed by Judge Royce C. Lamberth on March 31, 2014. (lcrcl5) (Entered: 03/31/2014)
60 ORDER granting 35 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE. Signed by Judge Royce C. Lamberth on March 31, 2014. (lcrcl5) (Entered: 03/31/2014)

 
 Case: 1:06-cv-00096-RCL As of: 04/10/2017 01:41 PM EDT 1 of 16
CLOSED,STAYED,TYPE−D
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:06−cv−00096−RCL

ELECTRONIC PRIVACY INFORMATION CENTER v. DEPARTMENT OF JUSTICE Assigned to: Chief Judge Royce C. Lamberth Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 01/19/2006 Date Terminated: 04/01/2014 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

ELECTRONIC PRIVACY INFORMATION CENTER

represented by Marc Rotenberg ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, NW Suite 200 Washington, DC 20009 (202) 483−1140, ext 106 Fax: (202) 483−1248 Email: rotenberg@epic.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Abdo AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2517 Fax: (212) 549−2517 Email: aabdo@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE NATION'S CAPITAL 4301 Connecticut Avenue, NW Suite 434 Washington, DC 20008 (202) 457−0800 x1004 Fax: (202) 457−0805 Email: artspitzer@gmail.com ATTORNEY TO BE NOTICED

David L. Sobel ELECTRONIC FRONTIER FOUNDATION 5335 Wisconsin Avenue, NW Suite 640 Washington, DC 20015−2052 (202) 246−6180 Fax: (415) 436−9993 Email: sobel@att.net TERMINATED: 05/29/2006

Ginger P. McCall ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, NW

Case: 1:06-cv-00096-RCL As of: 04/10/2017 01:41 PM EDT 2 of 16

Suite 200 Washington, DC 20009 (202) 483−1140 Fax: (202) 483−1248 Email: mccall@epic.org TERMINATED: 05/20/2015

Marcia Clare Hofmann LAW OFFICE OF MARCIA HOFMANN 25 Taylor Street San Francisco, CA 94102 (415) 830−6664 Email: marcia@marciahofmann.com TERMINATED: 05/26/2006

Melissa Goodman AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2622 Fax: (212) 549−2583 Email: mgoodman@aclu.org TERMINATED: 02/16/2011 PRO HAC VICE

Nasrina Bargzie AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 19th Floor New York, NY 10004 (212) 549−2517 Fax: (212) 549−2651 Email: nbargzie@aclu.org TERMINATED: 09/08/2008 PRO HAC VICE

Plaintiff
AMERICAN CIVIL LIBERTIES UNION Originally from Case No. 06−0214

represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Abdo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Ann Beeson AMERICAN CIVIL LIBERTIES UNION 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2601 Fax: (212) 549−2629 Email: annb@aclu.org TERMINATED: 06/01/2007

Catherine Crump AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street

Case: 1:06-cv-00096-RCL As of: 04/10/2017 01:41 PM EDT 3 of 16

18th Floor New York, NY 10004 (212) 519−7806 Fax: (212) 549−2651 Email: ccrump@aclu.org TERMINATED: 10/02/2006 PRO HAC VICE

Jameel Jaffer KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY 535 West 116 Street 314 Low Library New York, NY 10027 (212) 854−9600 Fax: (212) 854−7997 Email: jameel.jaffer@knightcolumbia.org PRO HAC VICE ATTORNEY TO BE NOTICED

Melissa Goodman (See above for address) TERMINATED: 02/16/2011 PRO HAC VICE

Nasrina Bargzie (See above for address) TERMINATED: 09/08/2008 PRO HAC VICE

Plaintiff
AMERICAN CIVIL LIBERTIES UNION FOUNDATION Originally from Case No. 06−0214

represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Abdo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Ann Beeson (See above for address) TERMINATED: 06/01/2007

Catherine Crump (See above for address) TERMINATED: 10/02/2006 PRO HAC VICE

Jameel Jaffer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Melissa Goodman (See above for address) TERMINATED: 02/16/2011 PRO HAC VICE

Nasrina Bargzie (See above for address) TERMINATED: 09/08/2008

Case: 1:06-cv-00096-RCL As of: 04/10/2017 01:41 PM EDT 4 of 16

PRO HAC VICE

Plaintiff
NATIONAL SECURITY ARCHIVE FUND, INC. Originally from Case No. 06−0214

represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Abdo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Ann Beeson (See above for address) TERMINATED: 06/01/2007

Catherine Crump (See above for address) TERMINATED: 10/02/2006 PRO HAC VICE

Jameel Jaffer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Melissa Goodman (See above for address) TERMINATED: 02/16/2011 PRO HAC VICE

Meredith Fuchs CONSUMER FINANCIAL PROTECTION BUREAU Office of General Counsel 1700 G Street, N.W. Washington, DC 20552 (202) 435−7414 Email: meredith.fuchs@cfpb.gov TERMINATED: 03/17/2010

Nasrina Bargzie (See above for address) TERMINATED: 09/08/2008 PRO HAC VICE

V. Defendant DEPARTMENT OF JUSTICE

represented by Marcia Berman UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Room 7132 Washington, DC 20530 (202) 514−2205 Fax: (202) 616−8470 Email: marcia.berman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:06-cv-00096-RCL As of: 04/10/2017 01:41 PM EDT 5 of 16
Caroline Lewis Wolverton U.S. Department of Justice Civil Division 20 Massachusetts Ave., NW Suite 7150 Washington, DC 20001 (202) 514−0265 Fax: (202) 616−8470 Email: caroline.lewis−wolverton@usdoj.gov TERMINATED: 12/22/2010
Rupa Bhattacharyya U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION P.O. Box 883 Washington, DC 20530 (202) 305−0008 Fax: (202) 616−4314 Email: rupa.bhattacharyya@usdoj.gov TERMINATED: 09/09/2008

Date Filed 01/19/2006 01/19/2006 01/19/2006
01/19/2006 01/20/2006 01/26/2006
01/26/2006 01/30/2006 01/31/2006 02/09/2006

# Docket Text
1 COMPLAINT against DEPARTMENT OF JUSTICE (Filing fee $ 250) filed by ELECTRONIC PRIVACY INFORMATION CENTER.(lc, ) (Entered: 01/20/2006)
2 LCvR 7.1 − CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ELECTRONIC PRIVACY INFORMATION CENTER (lc, ) Modified on 1/20/2006 (lc, ). (Entered: 01/20/2006)
3 MOTION for Preliminary Injunction by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Hofman Declaration# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10# 12 Exhibit 11# 13 Exhibit 12# 14 Exhibit 13# 15 Exhibit 14# 16 Exhibit 15# 17 Exhibit 16# 18 Exhibit 17# 19 Exhibit 18# 20 Exhibit 19# 21 Text of Proposed Order)(lc, ) Modified on 1/20/2006 (lc, ). (Entered: 01/20/2006)
SUMMONS (3) Issued as to DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (lc, ) (Entered: 01/20/2006)
4 NOTICE of Appearance by Marcia Clare Hofmann on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Hofmann, Marcia) (Entered: 01/20/2006)
5 Memorandum in opposition to re 3 Plaintiff's Motion For a Preliminary Injunction filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A −− OLC Letter# 2 Exhibit B −− EPIC v. DOJ, 03−2078# 3 Exhibit C −− Al Fayed, 2000 WL 34342564# 4 Exhibit D −− Judicial Watch, 00−1396# 5 Exhibit E −− Assassination Archives, 1988 LEXIS 18606# 6 Exhibit F −− Edmonds, 2002 WL 32539613# 7 Exhibit G −− Leadership Conf., 2005 WL 3360884)(Bhattacharyya, Rupa) (Entered: 01/26/2006)
6 NOTICE of Appearance by Rupa Bhattacharyya on behalf of DEPARTMENT OF JUSTICE (Bhattacharyya, Rupa) (Entered: 01/26/2006)
7 REPLY to opposition to motion re 3 Plaintiff's Motion for a Preliminary Injunction filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Exhibit 20# 2 Exhibit 21# 3 Exhibit 22)(Sobel, David) (Entered: 01/30/2006)
Set Hearings: Preliminary Injunction Motion Hearing set for 2/10/2006 at 11:00 AM in Courtroom 27A before Judge Henry H. Kennedy. (rew, ) (Entered: 01/31/2006)
8 Order to Consolidate. Signed by Judge Henry H. Kennedy, Jr., on February 9, 2006. It is ORDERED that all further pleadings and other matters related to the consolidated cases be filed in Electronic Privacy Information Center v. Dept of Justice, Civil Action 06−00096.( FL, ) Modified on 8/1/2007 (lc, ). (Entered: 02/09/2006)

Case: 1:06-cv-00096-RCL As of: 04/10/2017 01:41 PM EDT 6 of 16

02/10/2006 02/15/2006 02/16/2006 02/27/2006 02/27/2006 03/06/2006 03/07/2006 03/07/2006 03/09/2006 03/15/2006
03/20/2006 03/23/2006

Minute Entry for proceedings held before Judge Henry H. Kennedy : Motion Hearing held on 2/10/2006 re 3 MOTION for Preliminary Injunction filed by ELECTRONIC PRIVACY INFORMATION CENTER,. Heard and taken under advisement. (Court Reporter Annie Shaw.) Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(rew, ) (Entered: 02/10/2006)
9 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond to EPIC Plaintiff's Complaint by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 02/15/2006)
10 Memorandum Opinion and Order. Signed by Judge Henry H. Kennedy, Jr., on February 16, 2006. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) (Entered: 02/16/2006)
Minute order granting 9 defendant's unopposed motion for an extension of time in which to answer or otherwise respond to plaintiff's complaint. Defendant shall have up to and including March 9, 2006, within which to answer, move, or otherwise respond to plaintiff's complaint. Signed by Judge Henry H. Kennedy, Jr., on February 27, 2006. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) (Entered: 02/27/2006)
Set/Reset Deadlines: Answer due by 3/9/2006. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(rew, ) (Entered: 02/27/2006)
11 Unopposed MOTION to Stay (Partial) of the Court's February 16, 2006, Order Pending Resolution of the Defendant's Forthcoming Motion Seeking Relief from that Order by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 03/06/2006)
12 Order granting 14 defendant's unopposed motion for a partial stay of the court's February 16, 2006, order. Signed by Judge Henry H. Kennedy, Jr., on March 7, 2006. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) Modified on 3/7/2006 (FL, ). (Entered: 03/07/2006)
13 MOTION Expedited Motion for Relief from Court's Order of February 16, 2006 by DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A −− J. Huvelle Order# 2 Exhibit B −− J. Kessler Order# 3 Exhibit C −− O'Connor Order# 4 Exhibit D −− ACLU Docket# 5 Exhibit E −− PFAW Order# 6 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 03/07/2006)
14 ANSWER to Complaint of Electronic Privacy Information Center by DEPARTMENT OF JUSTICE.Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 03/09/2006)
15 Memorandum in opposition to re 13 Expedited Motion for Relief from Court's Order of February 16, 2006 filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18# 19 Exhibit 19−Part 1# 20 Exhibit 19−Part2# 21 Exhibit 20−Part 1# 22 Exhibit 20−Part 2# 23 Exhibit 21# 24 Exhibit 22# 25 Exhibit 23# 26 Exhibit 24# 27 Exhibit 25# 28 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(lc, ) (Entered: 03/16/2006)
16 REPLY to opposition to motion re 13 MOTION Expedited Motion for Relief from Court's Order of February 16, 2006 filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A −− Edmonds Docket)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 03/20/2006)
17 NOTICE of Appearance by Meredith Fuchs on behalf of NATIONAL SECURITY ARCHIVE FUND, INC. Associated Cases:

Case: 1:06-cv-00096-RCL As of: 04/10/2017 01:41 PM EDT 7 of 16

03/24/2006 03/29/2006 05/26/2006 05/26/2006 05/26/2006
05/28/2006 05/29/2006 05/30/2006 07/03/2006 07/05/2006
07/26/2006 07/27/2006 07/28/2006

1:06−cv−00096−HHK,1:06−cv−00214−HHK(Fuchs, Meredith) (Entered: 03/23/2006)
18 Order re 13 granting in part and denying in part defendant's expedited motion seeking relief from the court's February 16, 2006, order. Signed by Judge Henry H. Kennedy, Jr., on March 24, 2006. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) (Entered: 03/24/2006)
Set/Reset Hearings: Status Conference set for 5/31/2006 at 09:45 AM in Courtroom 27A before Judge Henry H. Kennedy. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(rew, ) (Entered: 03/29/2006)
19 NOTICE OF SUBSTITUTION OF COUNSEL by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER Substituting for attorney David L. Sobel Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Rotenberg, Marc) (Entered: 05/26/2006)
20 NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney Marcia Clare Hofmann terminated. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Hofmann, Marcia) (Entered: 05/26/2006)
21 Joint MOTION to Continue Status Conference by ELECTRONIC PRIVACY INFORMATION CENTER, DEPARTMENT OF JUSTICE, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 05/26/2006)
MINUTE ORDER granting 21 Joint Motion to Continue May 31, 2006, status hearing. The clerk of the court will reschedule the status hearing to convene after July 7, 2006, when the business of the court permits. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Kennedy, Henry) (Entered: 05/28/2006)
22 NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney David L. Sobel terminated. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Sobel, David) (Entered: 05/29/2006)
Set/Reset Hearings: Status Conference set for 5/31/2006 at 9:45 AM is OFF and reset for 7/26/2006 at 09:45 AM in Courtroom 27A before Judge Henry H. Kennedy. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(rew, ) (Entered: 05/30/2006)
23 Unopposed MOTION for Extension of Time to Complete Processing of Plaintiff's FOIA Request by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 07/03/2006)
Minute order granting 23 defendant's unopposed motion for an extension of time in which to complete processing of plaintiff's Freedom Of Information Act Request. Defendant shall have up to and including July 21, 2006, in which to complete the processing of plaintiff's request under the Freedom of Information Act, 5 U.S.C. ? 552. Signed by Judge Henry H. Kennedy, Jr., on July 5, 2006. Official paperless order Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) (Entered: 07/05/2006)
Minute Entry for proceedings held before Judge Henry H. Kennedy: Status Conference held on 7/26/2006. An order will be issued by the Court. (Court Reporter Annie Shaw.) Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(tth, ) (Entered: 07/26/2006)
24 Scheduling Order. Signed by Judge Henry H. Kennedy, Jr., on July 27, 2006. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) (Entered: 07/27/2006)
Set/Reset Deadlines: Cross Motions due by 9/28/2006. Response to Cross Motions due by 10/18/2006. Reply to Cross Motions due by 11/2/2006. Summary Judgment

Case: 1:06-cv-00096-RCL As of: 04/10/2017 01:41 PM EDT 8 of 16

09/07/2006 09/07/2006 09/07/2006 09/07/2006 09/08/2006 09/08/2006 09/08/2006 09/15/2006
09/15/2006 09/26/2006

motions due by 9/8/2006. Response to Motion for Summary Judgment due by 9/28/2006. Reply to Motion for Summary Judgment due by 10/18/2006. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(adc) (Entered: 07/28/2006)
25 ENTERED IN ERROR. . . .MOTION for Extension of Time to File Motion for Summary Judgment by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Bhattacharyya, Rupa) Modified on 9/8/2006 (td, ). (Entered: 09/07/2006)
26 MOTION for Extension of Time to File Motion for Summary Judgment −−−CORRECTED−−− by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Bhattacharyya, Rupa) Modified on 9/8/2006 (td, ). (Entered: 09/07/2006)
27 MOTION for Leave to File Excess Pages by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 09/07/2006)
NOTICE OF CORRECTED DOCKET ENTRY: re 25 MOTION for Extension of Time to File Motion for Summary Judgment was entered in error and refiled as document no. 27 Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(td, ) (Entered: 09/08/2006)
28 NOTICE in Support of Motion for Extension of TIme to File Motion for Summary Judgment 26 by DEPARTMENT OF JUSTICE Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 09/08/2006)
Minute order granting 26 defendant's motion for a one−week extension of time in which to file its motion for summary judgment. Defendant shall have up to and including September 15, 2006, in which to file a motion for summary judgment. Signed by Judge Henry H. Kennedy, Jr., on September 8, 2006. Official paperless order Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) (Entered: 09/08/2006)
Minute order granting 27 defendant's motion for leave to exceed the page limits. Defendant shall have leave to exceed the page limits allowed by the local rules with respect to its forthcoming motion for summary judgment. Signed by Judge Henry H. Kennedy on September 8, 2006. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) (Entered: 09/08/2006)
29 MOTION for Summary Judgment by DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A −− Redacted Bradbury Decl.# 2 Exhibit B −− Executive Order 12958, as amended# 3 Exhibit C −− Redacted Baker Decl.# 4 Exhibit D −− OIP 03.08.06 to EPIC# 5 Exhibit E −− McIntyre Decl.# 6 Exhibit F −− Civil 03.07.06 to EPIC# 7 Exhibit G −− Redacted Rowan Decl.# 8 Exhibit H −− Civil 03.07.06 to ACLU# 9 Exhibit I −− Civil 04.13.06 to ACLU# 10 Exhibit J −− Redacted Hardy Decl.# 11 Exhibit K −− EOUSA 03.16.06 to ACLU# 12 Exhibit L −− OIP 03.08.06 to NSAF# 13 Exhibit M −− Giles Decl.# 14 Exhibit N −− NSA Decl.# 15 Statement of Facts)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 09/15/2006)
30 NOTICE of Lodging of Classified Exhibits by DEPARTMENT OF JUSTICE re 29 MOTION for Summary Judgment Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 09/15/2006)
31 Unopposed MOTION for Extension of Time to Oppose Defendant's Motion for Summary Judgment and to File Cross−Motions for Summary Judgment by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Spitzer, Arthur) (Entered: 09/26/2006)

Case: 1:06-cv-00096-RCL As of: 04/10/2017 01:41 PM EDT 9 of 16

09/27/2006 10/13/2006 10/13/2006 10/13/2006 10/17/2006 10/18/2006 10/20/2006
11/09/2006 11/21/2006 11/27/2006

Minute order granting 31 plaintiffs' unopposed motion for extension of time in which to file their opposition to the defendant's motion for summary judgment and their cross−motion for summary judgment. Plaintiffs shall have up to and including October 13, 2006, in which to file an opposition to the defendant's motion for summary judgment and cross−motion for summary judgment. Signed by Judge Henry H. Kennedy on September 27, 2006. Official paperless order Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) (Entered: 09/27/2006)
32 Consent MOTION for Leave to File Excess Pages in Opposition to Defendant's Motion for Summary Judgment by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Spitzer, Arthur) (Entered: 10/13/2006)
33 Memorandum in opposition to re 29 MOTION for Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Spitzer, Arthur) (Entered: 10/13/2006)
34 MOTION In Camera Review of Withheld Records re 33 Memorandum in Opposition,, 29 MOTION for Summary Judgment by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Spitzer, Arthur) (Entered: 10/13/2006)
Minute order granting 32 plaintiffs' unopposed motion for leave to exceed the page limit. Plaintiffs' forty−eight page opposiiton to defendant's motion for summary judgment is deemed filed. Signed by Judge Henry H. Kennedy, Jr., on October 17, 2006. Official paperless order Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) (Entered: 10/17/2006)
35 Unopposed MOTION for Extension of Time to File Response/Reply as to 34 MOTION In Camera Review of Withheld Records re 33 Memorandum in Opposition,, 29 MOTION for Summary Judgment, 29 MOTION for Summary Judgment ; Motion to Modify Scheduling Order by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 10/18/2006)
Minute order granting 35 defendant's unopposed motion to modify the briefing schedule. Defendant shall have through and including November 9, 2006, in which to file an opposition to plaintiffs' cross motion, and a reply in support of the pending motion for summary judgment in Civil Action 06−0096, and Civil Action 06−00214. Plaintiffs shall have through and including November 28, 2006, in which to file a cross−reply. Signed by Judge Henry H. Kennedy, Jr., on October 20, 2006. Official paperless order Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(FL, ) Modified on 10/23/2006 (lc, ). (Entered: 10/20/2006)
36 Memorandum in opposition to re 34 MOTION In Camera Review of Withheld Records re 33 Memorandum in Opposition,, 29 MOTION for Summary Judgment and Reply in Support of 29 Motion for Summary Judgment filed by DEPARTMENT OF JUSTICE. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 11/09/2006)
37 NOTIFICATION OF SUPPLEMENTAL AUTHORITY by DEPARTMENT OF JUSTICE (Attachments: # 1 Attachment)Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 11/21/2006)
38 REPLY to opposition to motion re 34 MOTION In Camera Review of Withheld Records re 33 Memorandum in Opposition,, 29 MOTION for Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL

Case: 1:06-cv-00096-RCL As of: 04/10/2017 01:41 PM EDT 10 of 16

05/23/2007
05/24/2007 05/24/2007
06/04/2007 06/07/2007 06/07/2007 06/12/2007 06/12/2007 06/13/2007

LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. Associated Cases: 1:06−cv−00096−HHK,1:06−cv−00214−HHK(Spitzer, Arthur) (Entered: 11/27/2006)
39 MOTION for Leave to File Supplemental Memorandum by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC., AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC. (Attachments: # 1 Supplementary Memorandum# 2 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Spitzer, Arthur) (Entered: 05/23/2007)
40 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Jameel Jaffer, :Firm− American Civil Liberties Union Foundation, :Address− 125 Broad Street, New York, NY 10004. Phone No. − 212−519−7814. Fax No. − 212−549−2651 by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC. (Attachments: # 1 Declaration of Jameel Jaffer# 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 05/24/2007)
Minute order granting (40) motion for admission, pro hac vice, of Jameel Jaffer as additional counsel for plaintiffs in case 1:06−cv−00096−HHK. Jameel Jaffer is permitted to appear pro hac vice on behalf of plaintiffs, American Civil Liberties Union, American Civil Liberties Union Foundation, and The National Security Archive, to the Bar of the United States District Court for the District of Columbia. Signed by Judge Henry H. Kennedy, Jr., on May 24, 2007. Official paperless order Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(FL, ) (Entered: 05/24/2007)
41 Unopposed MOTION for Extension of Time to File Response/Reply as to 39 MOTION for Leave to File Supplemental Memorandum by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Bhattacharyya, Rupa) (Entered: 06/04/2007)
Minute order granting 41 defendant's unopposed motion for an extension of time in which to respond to plaintiffs' motion for leave to file a supplemental memorandum. Defendant shall have up to and including June 13, 2007, within which to file a response to plaintiffs' motion for leave to file a supplemental memorandum. Signed by Judge Henry H. Kennedy, Jr., on June 7, 2007. Official paperless order (FL, ) (Entered: 06/07/2007)
Reset Deadlines: Defendant shall have up to and including June 13, 2007, within which to file a response to plaintiffs' motion for leave to file a supplemental memorandum. Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(ztj, ) (Entered: 06/11/2007)
42 MOTION for Leave to File Exhibits to Plaintiffs' Supplemental Memorandum by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC. (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 06/12/2007)
43 Unopposed MOTION for Extension of Time to File Response/Reply as to 39 MOTION for Leave to File Supplemental Memorandum by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Bhattacharyya, Rupa) (Entered: 06/12/2007)
Minute order granting 43 defendant's unopposed motion for an extension of time in which to respond to plaintiffs' motion for leave to file a supplemental memorandum and to plaintiffs' motion for leave to file exhibits to plaintiff's supplemental memorandum. Defendant shall have up to and including June 15, 2007, within which to file a response to plaintiffs' motion for leave to file a supplemental memorandum and to plaintiffs' motion for leave to file exhibits to plaintiff's supplemental memorandum. Signed by Judge Henry H. Kennedy, Jr., on June 13, 2007. Official paperless order(FL, ) (Entered: 06/13/2007)

Case: 1:06-cv-00096-RCL As of: 04/10/2017 01:41 PM EDT 11 of 16

06/15/2007 07/11/2007 07/16/2007 07/31/2007 07/31/2007
09/05/2007 10/09/2007 10/11/2007
10/17/2007 10/19/2007 10/19/2007 11/20/2007

44 Memorandum in opposition to re 39 MOTION for Leave to File Supplemental Memorandum, 42 MOTION for Leave to File Exhibits to Plaintiffs' Supplemental Memorandum filed by DEPARTMENT OF JUSTICE. (Bhattacharyya, Rupa) (Entered: 06/15/2007)
45 NOTICE OF SUPPLEMENTAL AUTHORITY by DEPARTMENT OF JUSTICE (Attachments: # 1 NYT Memorandum Opinion)(Bhattacharyya, Rupa) (Entered: 07/11/2007)
46 REPLY re 45 NOTICE OF SUPPLEMENTAL AUTHORITY filed by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. (Spitzer, Arthur) (Entered: 07/16/2007)
Minute order granting (39) motion for leave to file supplemental memorandum and (42) motion for leave to file exhibits to plaintiffs supplemental memorandum in case 1:06−cv−00096−HHK and the associated case: 1:06−cv−00214−HHK. The proposed submissions are deemed filed. Signed by Judge Henry H. Kennedy, Jr., on July 31, 2007. Official paperless order (FL, ) (Entered: 07/31/2007)
47 SUPPLEMENTAL MEMORANDUM to re 29 MOTION for Summary Judgment, 34 MOTION In Camera Review of Withheld Records re 33 Memorandum in Opposition,, 29 MOTION for Summary Judgment MOTION In Camera Review of Withheld Records re 33 Memorandum in Opposition,, 29 MOTION for Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. (lc, ) (Entered: 08/01/2007)
48 Memorandum Opinion and Order. Signed by Judge Henry H. Kennedy, Jr., on September 5, 2007. Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(FL, ) (Entered: 09/05/2007)
49 Unopposed MOTION for Extension of Time to File Renewed Motion for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Bhattacharyya, Rupa) (Entered: 10/09/2007)
Minute order granting 49 defendant's unopposed motion for an extension of time in which to file its renewed motion for summary judgment. Defendant shall have up to and including October 18, 2007, in which to file a renewed motion for summary judgment with respect to all components except for the Federal Bureau of Investigation (FBI), and up to and including November 20, 2007, in which to file its renewed motion for summary judgment with respect to the FBI, in the above−captioned consolidated cases. 1:06−cv−00096−HHK Signed by Judge Henry H. Kennedy, Jr., on October 11, 2007. Official paperless order Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(FL, ) Modified to edit link on 10/12/2007 (nmw, ). (Entered: 10/11/2007)
Reset Deadlines: Defendant shall have up to and including October 18, 2007, in which to file a renewed motion for summary judgment with respect to all components except for the Federal Bureau of Investigation (FBI), and up to and including November 20, 2007, in which to file its renewed motion for summary judgment with respect to the FBI, (tj ) (Entered: 10/17/2007)
50 Second MOTION for Summary Judgment by DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Exhibit A − Redacted Bradbury Declaration# 2 Exhibit B − Redacted Rowan Declaration# 3 Errata C − NSA Declaration)Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 10/19/2007)
51 NOTICE of Lodging Classified Exhibits in Support of Renewed Motion for Summary Judgment by DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Bhattacharyya, Rupa) (Entered: 10/19/2007)
52 ENTERED IN ERROR.....Supplemental MOTION for Summary Judgment on Behalf of FBI by DEPARTMENT OF JUSTICE (Attachments: # 1 Exhibit A Redacted Hardy Declaration# 2 Ex. A to Hardy Decl. (Index))(Bhattacharyya, Rupa) Modified on 11/21/2007 (lc, ). (Entered: 11/20/2007)

Case: 1:06-cv-00096-RCL As of: 04/10/2017 01:41 PM EDT 12 of 16

11/20/2007 11/21/2007
11/21/2007 11/27/2007 11/28/2007
12/11/2007 12/16/2007
12/18/2007 12/18/2007 12/20/2007 01/02/2008

53 NOTICE (Second) of Lodging Classified Exhibit by DEPARTMENT OF JUSTICE re 52 Supplemental MOTION for Summary Judgment on Behalf of FBI, 50 Second MOTION for Summary Judgment (Bhattacharyya, Rupa) (Entered: 11/21/2007)
54 SUPPLEMENTAL MEMORANDUM to re (35 in 1:06−cv−00214−HHK, 50 in 1:06−cv−00096−HHK) MOTION for Summary Judgment Supplemental Submission on Behalf of the FBI filed by DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A −− Second Hardy Declaration# 2 Ex. A to Hardy Decl.# 3 Ex. B to Hardy Decl. pt.1# 4 Ex. B to Hardy Decl. pt.2# 5 Ex. B to Hardy Decl. pt.3)Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Bhattacharyya, Rupa) Modified on 11/21/2007 (lc, ). (Entered: 11/21/2007)
NOTICE OF CORRECTED DOCKET ENTRY: re 52 Supplemental MOTION for Summary Judgment on Behalf of FBI was entered in error and has been refiled correctly by counsel in docket entry 54 . (lc, ) (Entered: 11/21/2007)
55 Consent MOTION for Extension of Time to File Response/Reply as to 50 Second MOTION for Summary Judgment by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC. (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 11/27/2007)
Minute order granting 55 plaintiffs' consent motion for extension of time to file memorandum in opposition to defendant's renewed motion for summary judgment and in support of plaintiffs' cross−motion for in camera review. Plaintiffs shall have up to and including December 18, 2007, in which to file an opposition to defendants renewed motion for summary judgment and in support of cross−motion for in camera review. Signed by Judge Henry H. Kennedy, Jr., on November 28, 2007. Official paperless order (FL, ) (Entered: 11/28/2007)
Reset Deadlines: Plaintiffs shall have up to and including December 18, 2007, in which to file an opposition to defendants renewed motion for summary judgment and in support of cross−motion for in camera review (tj ) (Entered: 12/11/2007)
56 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Nasrina Bargzie, :Firm− American Civil Liberties Union Foundation, :Address− 125 Broad Street, New York, NY 10004. Phone No. − 212−549−2517. Fax No. − 212−549−2651 by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC. (Attachments: # 1 Declaration of Nasrina Bargzie)(Spitzer, Arthur) (Entered: 12/16/2007)
57 MOTION Renewed, for In Camera Review of Withheld Records by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC. (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 12/18/2007)
58 Memorandum in opposition to re 50 Second MOTION for Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 12/18/2007)
Minute order granting 56 motion for admission, pro hac vice, of Nasrina Bargzie as additional counsel for plaintiff. Nasrina Bargzie is permitted to appear pro hac vice on behalf of plainitff, Electronic Privacy Information Center, to the Bar of the United States District Court for the District of Columbia. Signed by Judge Henry H. Kennedy, Jr., on December 20, 2007. Official paperless order (FL, ) (Entered: 12/20/2007)
59 MOTION for Extension of Time to File Response/Reply as to 57 in 1:06−cv−00096−HHK) MOTION Renewed, for In Camera Review of Withheld Records and to Reply in Support of Defendant's Renewed Motion for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Bhattacharyya, Rupa) Modified on 1/3/2008 (lc, ). (Entered:

Case: 1:06-cv-00096-RCL As of: 04/10/2017 01:41 PM EDT 13 of 16

01/15/2008
01/31/2008 01/31/2008 02/06/2008 04/03/2008
05/22/2008
09/08/2008 09/08/2008 09/09/2008 10/31/2008 03/06/2009

01/02/2008)
ORDER granting 59 Defendant's Motion for an Extension of Time in which to File its Opposition to Plainitffs' Renewed Motion for In Camera Review and its Reply Brief in Support of its Pending Renewed Motion for Summary Judgment. Accordingly, defendant's opposition and reply brief are due by January 30, 2008. Signed by Judge Henry H. Kennedy on January 15, 2008. Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK (NP) (Entered: 01/15/2008)
60 Memorandum in opposition to re 57 MOTION Renewed, for In Camera Review of Withheld Records and Reply in Support of 50 , 54 Defendant's Renewed Motion for Summary Judgment and Supplemental Submission filed by DEPARTMENT OF JUSTICE. (Bhattacharyya, Rupa) (Entered: 01/31/2008)
61 REPLY to opposition to motion re 50 Second MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (See Docket Entry 60 to view document). (nmw, ) (Entered: 02/01/2008)
62 REPLY to opposition to motion re 57 MOTION Renewed, for In Camera Review of Withheld Records filed by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. (Spitzer, Arthur) (Entered: 02/06/2008)
63 NOTICE of Filing (new authority) by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC. re 50 Second MOTION for Summary Judgment, 57 MOTION Renewed, for In Camera Review of Withheld Records (Attachments: # 1 OLC Interrogation memorandum)(Spitzer, Arthur) (Entered: 04/03/2008)
64 NOTICE Second Notice of Filing by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC. re 57 MOTION Renewed, for In Camera Review of Withheld Records (Attachments: # 1 Exhibit DOJ Letter to Senators)(Spitzer, Arthur) (Entered: 05/22/2008)
65 MOTION to Withdraw as Attorney Nasrina Bargzie by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 09/08/2008)
ORDER granting (65) Motion of Nasrina Bargzie to Withdraw as Counsel. Attorney Nasrina Bargzie is terminated in case 1:06−cv−00096−HHK. Signed by Judge Henry H. Kennedy, Jr. on September 8, 2008. Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK (NP) (Entered: 09/08/2008)
66 NOTICE OF SUBSTITUTION OF COUNSEL by Caroline Lewis Wolverton on behalf of DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE Substituting for attorney Rupa Bhattacharyya Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Wolverton, Caroline) (Entered: 09/09/2008)
67 MEMORANDUM OPINION & ORDER granting in part and denying in part 50 , 54 Defendant's Renewed Motion for Summary Judgment, and granting in part and denying in part 57 Plaintiff's Renewed Motion for In Camera Review. Signed by Judge Henry H. Kennedy, Jr. on October 31, 2008. Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK (NP) (Entered: 10/31/2008)
68 NOTICE of Filing New Authority by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7)Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Rotenberg, Marc) (Entered: 03/06/2009)

Case: 1:06-cv-00096-RCL As of: 04/10/2017 01:41 PM EDT 14 of 16

03/17/2009 09/15/2009 10/28/2009 12/17/2009 03/17/2010 05/11/2010
11/29/2010
11/29/2010 12/22/2010 12/23/2010 12/23/2010 01/14/2011

69 RESPONSE re (44 in 1:06−cv−00214−HHK) Notice (Other), Notice (Other) of Filing filed by DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE. Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Wolverton, Caroline) (Entered: 03/17/2009)
70 SUPPLEMENTAL MEMORANDUM to re 57 MOTION Renewed, for In Camera Review of Withheld Records filed by ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. (Attachments: # 1 Exhibit−IG Report)(Spitzer, Arthur) (Entered: 09/15/2009)
71 NOTICE of Intent to Respond by DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE re (70 in 1:06−cv−00096−HHK) Supplemental Memorandum, Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Wolverton, Caroline) (Entered: 10/28/2009)
72 MEMORANDUM re (35 in 1:06−cv−00214−HHK, 50 in 1:06−cv−00096−HHK) MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE by DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE. Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Wolverton, Caroline) (Entered: 12/17/2009)
73 NOTICE OF WITHDRAWAL OF APPEARANCE as to NATIONAL SECURITY ARCHIVE FUND, INC.. Attorney Meredith Fuchs terminated. Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Fuchs, Meredith) (Entered: 03/17/2010)
74 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Melissa Goodman, :Firm− American Civil Liberties Union Foundation, :Address− 125 Broad Street, New York, NY 10004. Phone No. − 212−549−2622. Fax No. − 212−549−2651 by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Affidavit of Melissa Goodman, # 2 Text of Proposed Order)Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Spitzer, Arthur) (Entered: 05/11/2010)
75 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Alexander A. Abdo, :Firm− American Civil Liberties Union Foundation, :Address− 125 Broad Street, New York, NY 10004. Phone No. − 212−549−2517. Fax No. − 212−549−2651 by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Declaration of Alexander A. Abdo, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 11/29/2010)
MINUTE ORDER granting Motions for Admission Pro Hac Vice of 74 Melissa Goodman and 75 Alexander Abdo. Accordingly, Ms. Goodman and Ms. Abdo are admitted pro hac vice to appear in this matter on behalf of plaintiffs. Signed by Judge Henry H. Kennedy, Jr. on November 29, 2010. (NP) (Entered: 11/29/2010)
76 ENTERED IN ERROR.....NOTICE of Appearance by Marcia Berman on behalf of DEPARTMENT OF JUSTICE Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Berman, Marcia) Modified on 12/23/2010 (dr). (Entered: 12/22/2010)
77 NOTICE OF SUBSTITUTION OF COUNSEL − by Marcia Berman on behalf of DEPARTMENT OF JUSTICE Substituting for attorney Caroline Lewis Wolverton (dr) (Entered: 12/23/2010)
NOTICE OF CORRECTED DOCKET ENTRY: re 76 Notice of Appearance was entered in error because it does not reflect the document filed. A Notice of Substitution of Counsel has been filed as DE# 77 (dr) (Entered: 12/23/2010)
78 STIPULATION (Joint Proposed Stipulation) by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, ELECTRONIC PRIVACY INFORMATION CENTER, NATIONAL SECURITY ARCHIVE FUND, INC., AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL SECURITY ARCHIVE FUND, INC.. Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Abdo, Alexander) (Entered: 01/14/2011)

Case: 1:06-cv-00096-RCL As of: 04/10/2017 01:41 PM EDT 15 of 16

01/18/2011 01/25/2011 02/16/2011
03/21/2011
04/08/2011 04/15/2011 12/15/2011 02/24/2012 03/01/2012 12/17/2012 02/24/2014 03/31/2014 03/31/2014 04/01/2014 04/17/2014

79 ORDER accepting 78 the parties' Joint Proposed Stipulation Regarding Processing of Office of Legal Counsel Memoranda. Signed by Judge Henry H. Kennedy, Jr. on January 18, 2011. (lchhk3) (Entered: 01/18/2011)
80 MOTION to Withdraw as Attorney Melissa Goodman, by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, ELECTRONIC PRIVACY INFORMATION CENTER, NATIONAL SECURITY ARCHIVE FUND, INC. (Spitzer, Arthur) (Entered: 01/25/2011)
MINUTE ORDER granting 80 Motion to Withdraw as Counsel. Accordingly, attorney Melissa Goodman is hereby terminated from case 1:06−cv−00096−HHK and 1:06−cv−00214−HHK. Signed by Judge Henry H. Kennedy, Jr. on February 16, 2011. Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK (NP) (Entered: 02/16/2011)
81 NOTICE of Filing by DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE re (53 in 1:06−cv−00214−HHK) Order (Attachments: # 1 cover letter, # 2 portions of OLC 54, # 3 portions of OLC 131)Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Berman, Marcia) (Entered: 03/21/2011)
82 RESPONSE re 81 Notice (Other), Notice (Other) filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, ELECTRONIC PRIVACY INFORMATION CENTER, NATIONAL SECURITY ARCHIVE FUND, INC.. (Abdo, Alexander) (Entered: 04/08/2011)
83 RESPONSE re 82 Def.'s Response to Plaintiffs' Response to Def.'s Notice of Filing by DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE Associated Cases: 1:06−cv−00096−HHK, 1:06−cv−00214−HHK(Berman, Marcia) Modified to add link on 4/18/2011 (znmw, ). (Entered: 04/15/2011)
84 Case reassigned to Chief Judge Royce C. Lamberth. Judge Henry H. Kennedy no longer assigned to the case. (ds) (Entered: 12/16/2011)
85 STATUS REPORT of Plaintiffs by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, ELECTRONIC PRIVACY INFORMATION CENTER, NATIONAL SECURITY ARCHIVE FUND, INC.. (Abdo, Alexander) (Entered: 02/24/2012)
86 STATUS REPORT Defendant's Response to Plaintiffs' 85 Status Report by DEPARTMENT OF JUSTICE. Associated Cases: 1:06−cv−00096−RCL, 1:06−cv−00214−RCL(Berman, Marcia) Modified on 3/2/2012 to add linkage(rdj). (Entered: 03/01/2012)
87 STATUS REPORT , marking anniversary of reassignment, by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, ELECTRONIC PRIVACY INFORMATION CENTER, NATIONAL SECURITY ARCHIVE FUND, INC.. (Spitzer, Arthur) (Entered: 12/17/2012)
88 STATUS REPORT (Joint Status Report) by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, ELECTRONIC PRIVACY INFORMATION CENTER, NATIONAL SECURITY ARCHIVE FUND, INC.. (Abdo, Alexander) (Entered: 02/24/2014)
89 ENTERED IN ERROR..... MEMORANDUM re: Order on 52 Motion for Summary Judgment. Signed by Judge Royce C. Lamberth on March 31, 2014. (lcrcl5) Modified on 4/1/2014 (zmpt, ). (Entered: 03/31/2014)
90 ORDER granting 50 Second MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE. Signed by Judge Royce C. Lamberth on March 31, 2014. (lcrcl5) (Entered: 03/31/2014)
91 MEMORANDUM re: ORDER on 50 Motion for Summary Judgment. Signed by Judge Royce C. Lamberth on April 1, 2014. (lcrcl5) (Entered: 04/01/2014)
92 NOTICE of Appearance by Ginger P. McCall on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (McCall, Ginger) (Entered: 04/17/2014)

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04/25/2014 04/28/2014 05/05/2014 05/16/2014
06/03/2014 05/20/2015

93 MOTION to Alter Judgment by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Text of Proposed Order)(McCall, Ginger). Added MOTION to Amend on 4/28/2014 (rdj). (Entered: 04/25/2014)
94 Memorandum in opposition to re 93 MOTION to Alter Judgment MOTION to Amend/Correct filed by DEPARTMENT OF JUSTICE. (Berman, Marcia) (Entered: 04/28/2014)
95 REPLY to opposition to motion re 93 MOTION to Alter Judgment MOTION to Amend/Correct filed by ELECTRONIC PRIVACY INFORMATION CENTER. (McCall, Ginger) (Entered: 05/05/2014)
96 MOTION for Leave to File Surreply in Opposition to Plaintiffs' Motion to Alter or Amend the Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Surreply in Opp. to Pls.' Mot. to Alter or Amend Judgment, # 2 Text of Proposed Order)(Berman, Marcia) (Entered: 05/16/2014)
97 MOTION for Leave to File Reply to Defendant's Surreply by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Exhibit Proposed Reply, # 2 Text of Proposed Order)(McCall, Ginger) (Entered: 06/03/2014)
98 NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney Ginger P. McCall terminated. (McCall, Ginger) (Entered: 05/20/2015)