Case 1:13-cv-09198-AT Document 1 Filed 12/30/13 Page 1 of 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

AMERICAN CIVIL LIBERTIES UNION, and AMERICAN CIVIL LIBERTIES UNION FOUNDATION,

Plaintiffs,

v.
NATIONAL SECUIRTY AGENCY, CENTRAL lNTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, and DEPARTMENT OF STATE,

Civil Action No. _ _ _ _ _ __ ECF Case

Defendants.

COMPLAINT FOR INJUNCTIVE RELIEF Introduction
1. This is an action under the Freedom ofInformation Act, 5 U.S.C. § 552 ("FOIA"), seeking the release of records that describe the government's understanding of its surveillance authority under Executive Order 12,333 ("EO 12,333") as well as the rules that regulate the govemment's acquisition, retention, use, and dissemination of the communications of Americans swept up in that surveillance.
2. During the last six months, the true breadth of many of the government's post9/11 surveillance activities has been exposed to the light of day. The media has revealed that, for example, the National Security Agency ("NSA") keeps a record of virtually every phone call made or received in the United States every day for the last five years. Reports have also disclosed that the NSA conducts sweeping surveillance of Americans' international communications--by, for example, searching the contents of essentially all text-based

Case 1:13-cv-09198-AT Document 1 Filed 12/30/13 Page 2 of 10
communications entering or leaving tile country for specific keywords. 3. The discussion surrounding the latest disclosures has concentrated on tile
limitations imposed on the government's surveillance by several statutes-specifically, the Foreign Intelligence Surveillance Act ("FISA"), Section 215 of the Patriot Act (which amended the so-called "business records" provision ofFISA), and the FISA Amendments Act of2008. Considerably less attention has focused on surveillance undertaken pursuant to EO 12,333 and the protections in place under that executive order for Americans' communications.
4. EO 12,333, signed on December 4,1981 and modified numerous times since, is the principal source of authority for electronic surveillance that does not fall within the scope of FISA. Whereas FISA applies primarily to surveillance conducted on American soil or to surveillance abroad iliat targets Americans, EO 12,333 appears to be the sole auiliority for and limitation on government surveillance abroad iliat targets foreigners. Unlike surveillance conducted pursuant to FISA, surveillance undertaken solely pursuant to EO 12,333 is not overseen by tile Foreign Intelligence Surveillance Court.
5. Although EO 12,333 permits the government to target foreigners abroad for surveillance, recent revelations have confirmed iliat ilie government interprets that authority to permit sweeping monitoring of Americans' international communications. How the government conducts this surveillance, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in ilie course ofiliat surveillance, are matters of great public significance and concern. While ilie government has released several documents describing the rules that govern its collection and use of Americans' international communications under statutory authorities regulating surveillance on U.S. soil, little information is publicly available regarding the rules that apply to surveillance of

Case 1:13-cv-09198-AT Document 1 Filed 12/30/13 Page 3 of 10
Americans' international calls and emails under EO 12,333. 6. That gap in public knowledge is particularly troubling in light of recent
revelations, which make clear that the NSA is collecting vast quantities of data worldwide pursuant to EO 12,333. For instance, recent news reports indicate that, relying on the executive order, the NSA is collecting: nearly 5 billion records per day on the location of cell phones, including Americans' cell phones; hundreds of millions of contact lists or address books from personal email and instant messaging accounts; and information from Google and Yahoo user accounts as that infonnation travels between those companies' data centers located abroad.
7. Surveillance under EO 12,333 inevitably sweeps up the communications of U.S. persons. This ForA request seeks, in part, to determine what protections are afforded to those U.S. persons and whether those protections are consistent with the Constitution.
8. Disclosure of the records Plaintiffs seek through this action would greatly benefit the public and cause no harm to sensitive intelligence gathering. Plaintiffs seek legal standards and limitations, not operational details. The legal standards that govern surveillance, and the question of whether the government appropriately accommodates the constitutional rights of American citizens, are matters of enonnous national significance and ongoing public concern.
Jurisdiction and Venue 9. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.c. § 1331 and 5 U.S.C. § 552(a)(4)(B). 10. Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B) because Plaintiffs' principal place of business is in Manhattan, New York, within this district.
Parties 11. Plaintiff American Civil Liberties Union ("ACLU") is a nationwide, non-profit,

Case 1:13-cv-09198-AT Document 1 Filed 12/30/13 Page 4 of 10
nonpartisan 26 U.S.C. § 501(c)(4) organization with more than 500,000 members dedicated to the constitutional principles of liberty and equality. The ACLU is committed to ensuring that the American govermnent complies with the Constitution and laws, including its intemationallegal obligations, in matters that affect civil liberties and human rights. The ACLU is also committed to principles of transparency and accountability in govermnent, and seeks to ensure that the American public is infoTIned about the conduct of its govermnent in matters that affect civil liberties and human rights. The ACLU is incorporated in New York State and has its principal place of business in New York City.
12. Plaintiff American Civil Liberties Union Foundation is a separate 26 U.S.C. § 501(c)(3) organization that educates the public about civil liberties and employs lawyers who provide legal representation free of charge in cases involving civil liberties. It is incorporated in New York State and has its principal place of business in New York City.
13. Defendant National Security Agency ("NSA") is an intelligence agency established within the executive branch of the U.S. government and administered through the Deparhnent of Defense. The NSA is an agency within the meaning of5 U.S.C. § 552(f)(1).
14. Defendant Central Intelligence Agency ("CIA") is an intelligence agency established within the executive branch of the U.S. government and is an agency within the meaning of5 U.S.C. § 552(f)(1).
15. Defendant Department of Defense is a department of the executive branch of the U.S. government and is an agency within the meaning of 5 U.S.C. § 552(f)(1). The Defense Intelligence Agency ("DIA"), from which the ACLU has requested records, is a component of the Department of Defense.
16. Defendant Department of Justice is a department of the executive branch of the

Case 1:13-cv-09198-AT Document 1 Filed 12/30/13 Page 5 of 10
U.S. government and is an agency within the meaning of 5 U.S.C. § 552(£)(1). The Federal Bureau ofInvestigation ("FBI"), National Security Division ("NSD"), aod Office of Legal Counsel ("OLC") are all components of the Department of Justice from which the ACLU has requested records.
17. Defendaot Department of State ("DOS") is a department of the executive branch of the U.S. government and is an agency within the meaning of5 U.S.C. § 552(£)(1).
Facts The Requested Records 18. By letter dated May 23, 2013, Plaintiffs filed substantially similar ForA requests with the CIA, DIA, NSA, FBI, NSD, OLC, aod DOS (the "Requests"). (True aod correct copies of the Requests are collectively amlexed hereto as Exhibit A.) 19. Each of the ACLU's Requests sought: a. any records construing or interpreting the scope of their authority to act under Executive Order 12,333, and any regulations issued tllereunder; b. any records describing the minimization procedures used by Defendants with regard to both intelligence collection aod intelligence interception conducted pursuant to Defendaots' authority under EO 12,333 or aoy regulations issued thereunder; aod c. any records describing the staodards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as Defendants define these tenns, pursuant to authority under EO 12,333 or aoy regulations issued thereunder. 20. Plaintiffs also sought a waiver of search, review, and duplication fees because the

Case 1:13-cv-09198-AT Document 1 Filed 12/30/13 Page 6 of 10
requested records were not sought for commercial use, because the ACLU is a "representative of the news media" under 5 U.S.C. § 552(a)(4)(A)(ii)(II), and because the requested information is in the public interest as defined under 5 U.S.C. § 552(a)(4)(A)(iii).
Agency Responses 21. Four of the agencies-DIA, FBI, NSD, and DOS-have acknowledged receipt of the FOIA request and indicated its placement in their FOIA processing queues, but have provided no substantive response to date. 22. By email dated Jlme 28,2013, the NSA memorialized an agreed-upon modification to the scope of Plaintiffs' Request, and by letter dated July 1, 2013, it disclosed two documents responsive to Plaintiffs' Request that were already publicly available. By email dated August 21, 2013, the NSA indicated that additional potentially responsive documents were to be posted on IContheRecord.tumblr.com, and indicated that a further response was forthcoming. By letter dated November 18, 2013, the NSA released two additional documents: a more recent version of U.S. Signals Intelligence Directive SP0018 than had been previously released and its amlex, both with redactions. This letter also indicated that the review of additional documents responsive to the request was ongoing, though the NSA has sent no further communication. (True and correct copies of these responses from the NSA are collectively annexed hereto as Exhibit B.) 23. By email and phone communications between June 25 and July 10, 2013, Plaintiffs and the OLC agreed upon a modification to the scope of Plaintiffs Request, but the OLC has not released any responsive documents to date. (True and correct copies of the communications between Plaintiffs and the OLC are collectively amlexed hereto as Exhibit C.) 24. By letter dated July 26,2013, the CIA denied plaintiffs' Request as requiring an

Case 1:13-cv-09198-AT Document 1 Filed 12/30/13 Page 7 of 10
"unreasonably burdensome search." (A true and correct copy of this denial from the CIA is annexed hereto as Exhibit D.)
25. Five ofthe agencies-CIA, DIA, FBI, NSA, and OLC-have cOimnunicated no decision in response to Plaintiffs' requests for fee waivers or limitations of fees. Defendant DOS granted the fee waiver by letter dated June 5, 2013, as did NSD, by letter dated June 11, 2013.
Administrative Appeals 26. By letter dated November 1, 2013, Plaintiffs administratively appealed the CIA's denial of their Request. (A true and correct copy of this appeal is annexed hereto as Exhibit E.) 27. Having received no further responsive records, Plaintiffs administratively appealed the constructive denials of their Requests to the DIA, NSA, FBI, NSD, OLC, and DOS by letter dated November 8, 2013. (True and correct copies ofthese constructive denial appeals are collectively annexed hereto as Exhibit F.) 28. Four of the defendants, the NSA, FBI, NSD, and DOS, acknowledged receipt of Plaintiffs' administrative appeals. 29. More than twenty days have elapsed since Plaintiffs filed their administrative appeals. Plaintiffs have therefore exhausted all administrative remedies.
Causes of Action 30. Defendants' failure to timely respond to the Requests violates FOIA, 5 U.S.C. § 552(a)(6)(A), and Defendants' corresponding regulations. 31. Defendants' failure to malce promptly available the records sought by the Requests violates the ForA, 5 U.S.C. § 552(a)(3)(A), and Defendants' corresponding regulations. 32. Defendants' wrongful withholdings of specific responsive records, or portions

Case 1:13-cv-09198-AT Document 1 Filed 12/30/13 Page 8 of 10
thereof, violates the ForA, 5 U.S.C. § 552(a)(3)(A), (6)(A), and Defendants' corresponding regulations.
33. Defendants' failure to make a reasonable effort to search for records responsive to the Requests violates the ForA, 5 U.S.C. § 552(a)(3)(C), and Defendants' corresponding regulations.
34. The failure of CIA, DIA, NSA, FBI, and OLC to grant Plaintiffs' request for a public interest fee waiver violates the ForA, 5 U.S.C. § 552(a)(4)(A)(iii), and Defendants' corresponding regulations.
35. The failure of CIA, DIA, NSA, FBI, and OLC to grant Plaintiffs' request for a limitation of fees violates the ForA, 5 U.S.C. § 552(a)(4)(A)(ii)(II), and Defendants' corresponding regulations.

Case 1:13-cv-09198-AT Document 1 Filed 12/30/13 Page 9 of 10

Prayer for Relief WHEREFORE, Plaintiffs respectfully request that this Court:
1. Order Defendants to conduct a thorough search for all responsive records; 2. Order Defendants to immediately process and release all records responsive to
Plaintiffs' Request; 3. Enjoin Defendants from charging Plaintiffs search, review, or duplication fees for
processing their Requests; 4. Award Plaintiffs their costs and reasonable attomey's fees incuned in this action; and 5. Grant such other relief as this Court deems just and proper.

Respectfully submitted,

December 30,2013

Alex Abdo AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18'h Floor New Yark, NY 10005 Phone: (212) 549-2500 Fax: (212) 549-2654
David A. Schulz Jonathan M. Manes Iya Megre (law student intem) Conor Clarke (law student intem) Maria Laura Tone Gomez (law student intem) MEDIA FREEDOM AND INFORMAnON ACCESS CLINIC P.O. Box. 208215 New Haven, CT 06520 (212) 850-6103

Case 1:13-cv-09198-AT Document 1 Filed 12/30/13 Page 10 of 10

Prayer for Relief WHEREFORE, Plaintiffs respectfully request that this Court:
1. Order Defendants to conduct a thorough search for all responsive records; 2. Order Defendants to immediately process and release all records responsive to
Plaintiffs' Request; 3. Enjoin Defendants from charging Plaintiffs search, review, or duplication fees for
processing their Requests; 4. Award Plaintiffs their costs and reasonable attorney's fees incurred in this action; and 5. Grant such other relief as this Court deems just and proper.

December 30, 2013

a . Respectfully submitted, J,v>( Uv\c>ch t(j)
Alex Abdo AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10005 Phone: (212) 549-2500 Fax: (212) 549-2654
David A. Schulz Jonathan M. Manes Iya Megre (law student intern) Conor Clarke (law student intern) Maria Laura Torre Gomez (law student intern) MEDIA FREEDOM AND INFORMATION ACCESS CLINIC P.O. Box. 208215 New Haven, CT 06520 (212) 850-6103

 
 Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 1 of 101

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

AMERICAN CIVIL LIBERTIES UNION, and AMERICAN CIVIL LIBERTIES UNION FOUNDATION,

Plaintiffs,

v.
NATIONAL SECURITY AGENCY, CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, and DEPARTMENT OF STATE,

No. 13-cv-09198 (AT) ECFCase

Defendants.

FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF Introduction
I. This is an action under the Freedom ofinfonnationAct, 5 U.S.C. § 552 ("FOIA"), seeking the release of records that describe the government's understanding of its surveillance authority under Executive Order 12,333 ("EO 12,333") as well as the rules that regulate the government's acquisition, retention, use, and dissemination of the communications of Americans swept up in that surveillance.
2. During the last six months, the true breadth of many of the government's post9/11 surveillance activities has been exposed to the light of day. The media has revealed that, for example, the National Secmity Agency ("NSA") keeps a record of virtually every phone call made or received in the United States every day for the last five years. Reports have also disclosed that the NSA conducts sweeping surveillance of Americans' international communications-by, for example, searching the contents of essentially all text-based

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 2 of 101
communications entering or leaving the country for specific keywords. 3. The discussion surrounding the latest disclosures has concentrated on the
limitations imposed on the government's surveillance by several statutes-specifically, the Foreign Intelligence Surveillance Act ("FISA"), Section 215 of the Patriot Act (which amended the so-called "business records" provision ofFISA), and the FISA Amendments Act of2008. Considerably less attention has focused on surveillance tmdertaken pursuant to EO 12,333 and the protections in place under that executive order for Americans' conununications.
4. EO 12,333, signed on December 4, 1981 and modified nmnerous times since, is the principal source of authority for electronic surveillance that does not fall within the scope of FISA. Whereas FISA applies primarily to surveillance conducted on American soil or to surveillance abroad that targets Americans, EO 12,333 appears to be the sole authority for and limitation on government surveillance abroad that targets foreigners. Unlike surveillance conducted pursuant to FISA, surveillance undertaken solely pursuant to EO 12,333 is not overseen by the Foreign Intelligence Surveillance Court.
5. Although EO 12,333 pennits the govermnent to target foreigners abroad for surveillance, recent revelations have confirmed that the govenunent interprets that authority to permit sweeping monitoring of Americans' international cmmmmications. How the govermnent conducts this surveillance, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great public significance and concern. While the govermnent has released several documents describing the rules that govern its collection and use of Americans' international cmmmmications under statutory authorities regulating surveillance on U.S. soil, little infonnation is publicly available regarding the rules that apply to surveillance of

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 3 of 101
Americans' intemational calls and emails under EO 12,333. 6. That gap in public knowledge is particularly troubling in light of recent
revelations, which make clear that the NSA is collecting vast quantities of data worldwide pursuant to EO 12,333. For instance, recent news reports indicate that, relying on the executive order, the NSA is collecting: nearly 5 billion records per day on the location of cell phones, including Americans' cell phones; hundreds of millions of contact lists or address books from personal email and instant messaging accotmts; and infonnation from Google and Yahoo user accounts as that infonnation travels between those companies' data centers located abroad.
7. Surveillance under EO 12,333 inevitably sweeps up the communications of U.S. persons. This FOIA request seeks, in part, to determine what protections are afforded to those U.S. persons and whether those protections are consistent with the Constitution.
8. Disclosme of the records Plaintiffs seek through this action would greatly benefit the public and cause no harm to sensitive intelligence gathering. Plaintiffs seek legal standards and limitations, not operational details. The legal standards that govern surveillance, and the question of whether the govennnent appropriately accommodates the constitutional rights of American citizens, are matters of enormous national significance and ongoing public concem.
Jurisdiction and Venue 9. This Court has subject matter jurisdiction over this action pmsuant to 28 U.S.C. § 1331 and 5 U.S.C. § 552(a)(4)(B). 10. Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B) because Plaintiffs' principal place of business is in Manhattan, New York, within this district.
Parties 11. Plaintiff American Civil Liberties Union ("ACLU") is a nationwide, non-profit,

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 4 of 101
nonpartisan 26 U.S.C. § 50l(c)(4) organization with more than 500,000 members dedicated to the constitutional principles ofliberty and equality. The ACLU is committed to ensuring that the Amelican govemment complies with the Constitution and laws, including its international legal obligations, in matters that affect civil liberties and human rights. The ACLU is also committed to principles of transparency and accountability in government, and seeks to ensure that the American public is informed about the conduct of its govermnent in matters that affect civil liberties and human rights. The ACLU is incorporated in New York State and has its principal place ofbusiness inN ew York City.
12. Plaintiff Americ~:m Civil Liberties Union Foundation is a separate 26 U.S.C. § 50l(c)(3) organization that educates the public about civil liberties and employs lawyers who provide legal representation free of charge in cases involving civil liberties. It is incorporated in New York State and has its principal place of business in New York City.
13. Defendant National Security Agency ("NSA") is an intelligence agency established within the executive branch of the U.S. govermnent and administered through the Department of Defense. The NSA is an agency within the meaning of 5 U.S.C. § 552(±)(1).
14. Defendant Central Intelligence Agency ("CIA") is an intelligence agency established within the executive branch of the U.S. govermnent and is an agency within the meaning of5 U.S.C. § 552(±)(1).
15. Defendant Department of Defense is a department of the executive branch of the U.S. government and is an agency within the meaning of 5 U.S.C. § 552(±)(1). The Defense Intelligence Agency ("DIA''), from which the ACLU has requested records, is a component of the Department of Defense.
16. Defendant Department of Justice is a department of the executive branch of the

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 5 of 101
U.S. govermnent and is an agency within the meaning of 5 U.S.C. § 552(f)(l). The Federal Bureau oflnvestigation ("FBI"), National Security Division ("NSD"), and Office of Legal Counsel ("OLC") are all components ofthe Deparhnent of Justice from which the ACLU has requested records.
17. Defendant Department of State ("DOS") is a deparhnent of the executive branch of the U.S. govennnent and is an agency within the meaning of5 U.S.C. § 552(f)(l).
Facts The Requested Records 18. By letter dated May 13,2013, Plaintiffs filed substantially similar FOIA requests with the CIA, DIA, NSA, FBI, NSD, OLC, and DOS (the "Requests"). (True and correct copies of the Requests are collectively mmexed hereto as Exhibit A.) 19. Each of the ACLU's Requests sought: a. any records construing or interpreting the scope of their authority to act under Executive Order 12,333, and any regulations issued thereunder; b. a11y records describing the minimization procedures used by Defendants with regard to both intelligence collection and intelligence interception conducted pursuant to Defendants' authority under EO 12,333 or any regulations issued thereunder; and c. any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of connnunications, as Defendants define these tenns, pursum1t to authority m1der EO 12,333 or any regulations issued thereunder. 20. Plaintiffs also sought a waiver of search, review, and duplication fees because the

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 6 of 101
requested records were not sought for commercial use, because the ACLU is a "representative of the news media" under 5 U.S.C. § 552(a)(4)(A)(ii)(II), and because the requested information is in the public interest as defined under 5 U.S.C. § 552(a)(4)(A)(iii).
Agency Responses 21. Four of the agencies-DIA, FBI, NSD, and DOS-have acknowledged receipt of the FOIA request and indicated its placement in their FOIA processing queues, but have provided no substantive response to date. 22. By email dated Jtme 28, 2013, the NSA memorialized an agreed-upon modification to the scope of Plaintiffs' Request, and by letter dated July 1, 2013, it disclosed two documents responsive to Plaintiffs' Request that were already publicly available. By email dated August 21,2013, the NSA indicated that additional potentially responsive documents were to be posted on IContheRecord.tumblr.com, and indicated that a further response was forthcoming. By letter dated November 18,2013, the NSA released two additional documents: a more recent version of U.S. Signals Intelligence Directive SPOOlS than had been previously released and its am1ex, both with redactions. This letter also indicated that the review of additional documents responsive to the request was ongoing, though the NSA has sent no further communication. (Tme and correct copies of these responses from the NSA are collectively mmexed hereto as Exhibit B.) 23. By email a11d phone communications between June 25 a11d July 10, 2013, Plaintiffs and the OLC agreed upon a modification to the scope of Plaintiffs Request, but the OLC has not released a11y responsive documents to date. (True a11d correct copies of the communications between Plaintiffs and the OLC are collectively mexed hereto as Exhibit C.) 24. By letter dated July 26, 2013, the CIA denied plaintiffs' Request as requiring an

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 7 of 101
"unreasonably burdensome search." (A true and correct copy ofthis denial from the CIA is annexed hereto as Exhibit D.)
25. Five of the agencies-CIA, DIA, FBI, NSA, and OLC-have communicated no decision in response to Plaintiffs' requests for fee waivers or limitations of fees. Defendant DOS granted tl1e fee waiver by letter dated June 5, 2013, as did NSD, by letter dated June 11,2013.
Administrative Appeals 26. By letter dated November 1, 2013, Plaintiffs administratively appealed ilie CIA's denial of their Request. (A true and correct copy of iliis appeal is mmexed hereto as Exhibit E.) 27. Having received no further responsive records, Plaintiffs administratively appealed the constmctive denials of their Requests to the DIA, NSA, FBI, NSD, OLC, a11d DOS by letter dated November 8, 2013. (Tme and correct copies of these constructive denial appeals are collectively annexed hereto as Exhibit F.) 28. Four of the defendants, the NSA, FBI, NSD, a11d DOS, acknowledged receipt of Plaintiffs' administrative appeals. Plaintiffs have received no further responses from a11y of the defendants. 29. More tha11 twenty working days have elapsed since Plaintiffs filed ilieir administrative appeals of the defendants' constructive denials. Plaintiffs have therefore exhausted their administrative remedies. 30. By letter dated January 9, 2014, Plaintiffs timely appealed the NSA's decision to redact the four documents it has released to date. That appeal concerns only tl1e NSA's decision to redact and not its failure to produce additional responsive records, which was the subject of the prior appeal filed on November 8, 2014. 31. By letter dated Jmmary 24, 2014, the NSA acknowledged tlmt it received the

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 8 of 101
appeal on January 17,2014. Plaintiffs have received no further response fi·om the NSA in response. More than twenty working days have elapsed since the NSA received the appeal. Plaintiffs have therefore exhausted their administrative remedies.
Causes of Action 32. Defendants' failure to timely respond to the Requests violates FOIA, 5 U.S.C. § 552(a)(6)(A), and Defendants' corresponding regulations. 33. Defendants' failure to make promptly available the records sought by the Requests violates the FOIA, 5 U.S.C. § 552(a)(3)(A), and Defendants' corresponding regulations. 34. Defendants' wrongful withholdings of specific responsive records, or portions thereof, violates the FOIA, 5 U.S.C. § 552(a)(3)(A), (6)(A), and Defendants' corresponding regulations. 35. Defendants' failure to make a reasonable effort to search for records responsive to the Requests violates the FOIA, 5 U.S.C. § 552(a)(3)(C), and Defendants' corresponding regulations. 36. The failure of CIA, DIA, NSA, FBI, and OLC to grant Plaintiffs' request for a public interest fee waiver violates the FOIA, 5 U.S.C. § 552(a)(4)(A)(iii), and Defendants' corresponding regulations. 37. The failure of CIA, DIA, NSA, FBI, and OLC to grant Plaintiffs' request for a limitation of fees violates the FOIA, 5 U.S.C.§ 552(a)(4)(A)(ii)(II), and Defendants' corresponding regulations.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 9 of 101

Prayer for Relief WHEREFORE, Plaintiffs respectfully request that this Court:
1. Order Defendants to conduct a thorough search for all responsive records; 2. Order Defendants to immediately process and release all records responsive to
Plaintiffs' Request; 3. Enjoin Defendants from charging Plaintiffs search, review, or duplication fees for
processing their Requests; 4. Award Plaintiffs their costs and reasonable attorney's fees incurred in this action; and 5. Grant such other relief as this Court deems just and proper.
QI4 RespOfully

February 18,2014

AlexAbdo AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18'11 Floor New York, NY 10005 Phone: (212) 549-2500 Fax: (212) 549-2654
David A. Schulz Jonathan M. Manes Iya Megre (law student intern) Conor Clarke (law student intern) Maria Laura Torre Gomez (law student intern) MEDIA FREEDOM AND INFORMATION ACCESS CLINIC P.O. Box. 208215 New Haven, CT 06520 (212) 850-6103

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 10 of 101

American Civil Liberties Union v. National Security Agency No. 1:13-cv-09198-AT
Index ofExhibits to Plaintiffs' First Amended Complaintfor Injunctive Relief

Plaintiffs' FOIA requests sub,mi1:ted to the CIA, DIA, NSA, FBI, NSD, OLC, and DOS on May 13,2013

B Responses from the NSA to Plaintiffs' FOIA request

c Communications
request

OLC in response to

FOIA

D CIA's denial of Plaintiffs' FOIA request

E

administrative

FOIA request

F Plaintiffs' administrative appeals from the denials of their FOIA request by the DIA, NSA, FBI, NSD, OLC, and DOS

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 11 of 101
Exhibit A

LEGAL DEPARTMENTCase 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 12 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


May 13, 2013
BY USPS MAIL
Information and Privacy Coordinator Central Intelligence Agency Washington, DC 20505
RE: FREEDOM OF INFORMATION ACT REQUEST
To Whom It May Concern:
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the “ACLU”) submit this request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Comp.) (“EO 12,333”). Specifically, we request the following records1:
1. Any records construing or interpreting the authority of the Central Intelligence Agency (“Agency”) under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the Agency with regard to both intelligence collection and intelligence interception conducted pursuant to the Agency’s authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the “collection,” “acquisition,” or “interception” of communications, as the Agency defines these terms, pursuant to the Agency’s authority under EO 12,333 or any regulations issued thereunder.

1

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 13 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a “representative of the news media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU’s mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a “representative of the news media” as an “entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf. Am. Civil Liberties Union v. Dep’t of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be “‘primarily engaged in disseminating information’”). Indeed, the ACLU recently was held to be a “representative of the news media.” Serv. Women’s Action Network v. Dep’t of Defense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep’t of Justice, No. C09–0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a “representative of the news media”), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it “is likely to contribute significantly to public understanding of the operations or activities of the government,” and (2) it “is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns “the operations or activities” of the Agency. E.O. 12,333 is “intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers.” EO 12,333 § 2.2. It authorizes the intelligence community, including the Agency, to collect intelligence, and it sets forth certain limitations on intelligence-gathering activities relevant to civil liberties. In its brief in a

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 14 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


recent case before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance of Americans’ foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will “contribute significantly to the public understanding” of the Agency’s operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333’s limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep’t of Def., DOD 5240 1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons § C2.3.12 (Dec. 1982); Nat’l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, U.S. Army Intelligence Procedures § 2-2(l) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 15 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


image quality in the agency’s possession, and in separate, Bates-stamped files.
We also request that you provide an estimated date on which you will finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

LEGAL DEPARTMENTCase 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 16 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


May 13, 2013
BY USPS MAIL
Margaret A. Bestrain, Chief, FOIA and Declassification Services Branch Defense Intelligence Agency U.S. Department of Defense ATTN: DAN-1A (FOIA) 200 MacDill Blvd. Washington, DC 20340-5100
RE: FREEDOM OF INFORMATION ACT REQUEST
Dear Ms. Bestrain,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the “ACLU”) submit this request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Comp.) (“EO 12,333”). Specifically, we request the following records1:
1. Any records construing or interpreting the authority of the Defense Intelligence Agency (“Agency”) under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the Agency with regard to both intelligence collection and intelligence interception conducted pursuant to the Agency’s authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the “collection,” “acquisition,” or “interception” of communications, as the Agency defines these terms, pursuant to the Agency’s authority under EO 12,333 or any regulations issued thereunder.

1

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 17 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a “representative of the news media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU’s mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a “representative of the news media” as an “entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf. Am. Civil Liberties Union v. Dep’t of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be “‘primarily engaged in disseminating information’”). Indeed, the ACLU recently was held to be a “representative of the news media.” Serv. Women’s Action Network v. Dep’t of Defense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep’t of Justice, No. C09–0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a “representative of the news media”), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it “is likely to contribute significantly to public understanding of the operations or activities of the government,” and (2) it “is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns “the operations or activities” of the Agency. E.O. 12,333 is “intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers.” EO 12,333 § 2.2. It authorizes the intelligence community, including the Agency, to collect intelligence, and it sets forth certain limitations on intelligence-gathering activities relevant to civil liberties. In its brief in a

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 18 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


recent case before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance of Americans’ foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will “contribute significantly to the public understanding” of the Agency’s operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333’s limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep’t of Def., DOD 5240 1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons § C2.3.12 (Dec. 1982); Nat’l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, U.S. Army Intelligence Procedures § 2-2(l) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 19 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


image quality in the agency’s possession, and in separate, Bates-stamped files.
We also request that you provide an estimated date on which you will finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

LEGAL DEPARTMENTCase 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 20 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


May 13, 2013
BY USPS MAIL
Attn: Cindy Blacker NSA FOIA Requester Service Center/DJ4 9800 Savage Road, Suite 6248 Ft. George G. Meade, MD 20744-6248
RE: FREEDOM OF INFORMATION ACT REQUEST
Dear Ms. Blacker,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the “ACLU”) submit this request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Comp.) (“EO 12,333”). Specifically, we request the following records1:
1. Any records construing or interpreting the authority of the National Security Agency (“Agency”) under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the Agency with regard to both intelligence collection and intelligence interception conducted pursuant to the Agency’s authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the “collection,” “acquisition,” or “interception” of communications, as the Agency defines these terms, pursuant to the Agency’s authority under EO 12,333 or any regulations issued thereunder.

1

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 21 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a “representative of the news media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU’s mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a “representative of the news media” as an “entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf. Am. Civil Liberties Union v. Dep’t of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be “‘primarily engaged in disseminating information’”). Indeed, the ACLU recently was held to be a “representative of the news media.” Serv. Women’s Action Network v. Dep’t of Defense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep’t of Justice, No. C09–0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a “representative of the news media”), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it “is likely to contribute significantly to public understanding of the operations or activities of the government,” and (2) it “is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns “the operations or activities” of the Agency. E.O. 12,333 is “intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers.” EO 12,333 § 2.2. It authorizes the intelligence community, including the Agency, to collect intelligence, and it sets forth certain limitations on intelligence-gathering activities relevant to civil liberties. In its brief in a

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 22 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


recent case before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance of Americans’ foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will “contribute significantly to the public understanding” of the Agency’s operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333’s limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep’t of Def., DOD 5240 1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons § C2.3.12 (Dec. 1982); Nat’l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, U.S. Army Intelligence Procedures § 2-2(l) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 23 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


electronically in a text-searchable, static-image format (PDF), in the best image quality in the agency’s possession, and in separate, Bates-stamped files.
We also request that you provide an estimated date on which you will finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

LEGAL DEPARTMENTCase 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 24 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


May 13, 2013
BY USPS MAIL
Federal Bureau of Investigation Attn: FOI/PA Request Record/Information Dissemination Section 170 Marcel Drive Winchester, VA 22602-4843
RE: FREEDOM OF INFORMATION ACT REQUEST
To Whom It May Concern:
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the “ACLU”) submit this request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Comp.) (“EO 12,333”). Specifically, we request the following records1:
1. Any records construing or interpreting the authority of the Federal Bureau of Investigation (“FBI”) under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the FBI with regard to both intelligence collection and intelligence interception conducted pursuant to the FBI’s authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the “collection,” “acquisition,” or “interception” of communications, as the FBI defines these terms, pursuant to the FBI’s authority under EO 12,333 or any regulations issued thereunder.

1

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 25 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a “representative of the news media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU’s mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a “representative of the news media” as an “entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf. Am. Civil Liberties Union v. Dep’t of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be “‘primarily engaged in disseminating information’”). Indeed, the ACLU recently was held to be a “representative of the news media.” Serv. Women’s Action Network v. Dep’t of Defense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep’t of Justice, No. C09–0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a “representative of the news media”), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it “is likely to contribute significantly to public understanding of the operations or activities of the government,” and (2) it “is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns “the operations or activities” of the FBI. E.O. 12,333 is “intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers.” EO 12,333 § 2.2. It authorizes the intelligence community, including the FBI, to collect intelligence, and it sets forth certain limitations on intelligencegathering activities relevant to civil liberties. In its brief in a recent case

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 26 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance of Americans’ foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will “contribute significantly to the public understanding” of the FBI’s operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333’s limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep’t of Def., DOD 5240 1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons § C2.3.12 (Dec. 1982); Nat’l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, U.S. Army Intelligence Procedures § 2-2(l) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best image quality in the agency’s possession, and in separate, Bates-stamped files.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 27 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


We also request that you provide an estimated date on which you will finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

LEGAL DEPARTMENTCase 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 28 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


May 13, 2013
BY USPS MAIL
Arnetta Mallory, FOIA Initiatives Coordinator National Security Division U.S. Department of Justice 950 Pennsylvania Avenue, NW Room 6150 Washington, DC 20530-0001
RE: FREEDOM OF INFORMATION ACT REQUEST
Dear Ms. Mallory,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the “ACLU”) submit this request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Comp.) (“EO 12,333”). Specifically, we request the following records1:
1. Any records construing or interpreting the authority of the National Security Division (“NSD”) under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the NSD with regard to both intelligence collection and intelligence interception conducted pursuant to the NSD’s authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the “collection,” “acquisition,” or “interception” of communications, as the NSD defines these terms, pursuant to the NSD’s authority under EO 12,333 or any regulations issued thereunder.

1

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 29 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a “representative of the news media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU’s mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a “representative of the news media” as an “entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf. Am. Civil Liberties Union v. Dep’t of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be “‘primarily engaged in disseminating information’”). Indeed, the ACLU recently was held to be a “representative of the news media.” Serv. Women’s Action Network v. Dep’t of Defense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep’t of Justice, No. C09–0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a “representative of the news media”), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it “is likely to contribute significantly to public understanding of the operations or activities of the government,” and (2) it “is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns “the operations or activities” of the NSD. E.O. 12,333 is “intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers.” EO 12,333 § 2.2. It authorizes the intelligence community, including the NSD, to collect intelligence, and it sets forth certain limitations on intelligencegathering activities relevant to civil liberties. In its brief in a recent case

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 30 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance of Americans’ foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will “contribute significantly to the public understanding” of the NSD’s operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333’s limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep’t of Def., DOD 5240 1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons § C2.3.12 (Dec. 1982); Nat’l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, U.S. Army Intelligence Procedures § 2-2(l) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best image quality in the agency’s possession, and in separate, Bates-stamped files.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 31 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


We also request that you provide an estimated date on which you will finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

LEGAL DEPARTMENTCase 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 32 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


May 13, 2013
BY USPS MAIL
Elizabeth Farris, Supervisory Paralegal Office of Legal Counsel Room 5515, 950 Pennsylvania Avenue, NW Department of Justice Washington, DC 20530-0001
RE: FREEDOM OF INFORMATION ACT REQUEST
Dear Ms. Farris,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the “ACLU”) submit this request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Comp.) (“EO 12,333”). Specifically, we request the following records1:
1. Any records in which the Office of Legal Counsel (“OLC”) construes or interprets the authority of the Department of Justice (“DOJ”) or any executive agencies under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the government with regard to both intelligence collection and intelligence interception conducted pursuant to EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the “collection,” “acquisition,” or “interception” of communications, as those terms are defined in EO 12,333 or any regulations issued thereunder.

1

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 33 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a “representative of the news media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU’s mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a “representative of the news media” as an “entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf. Am. Civil Liberties Union v. Dep’t of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be “‘primarily engaged in disseminating information’”). Indeed, the ACLU recently was held to be a “representative of the news media.” Serv. Women’s Action Network v. Dep’t of Defense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep’t of Justice, No. C09–0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a “representative of the news media”), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it “is likely to contribute significantly to public understanding of the operations or activities of the government,” and (2) it “is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns “the operations or activities” of the OLC. E.O. 12,333 is “intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers.” EO 12,333 § 2.2. It authorizes the intelligence community, including the OLC, to collect intelligence, and it sets forth certain limitations on intelligencegathering activities relevant to civil liberties. In its brief in a recent case

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 34 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance of Americans’ foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will “contribute significantly to the public understanding” of the intelligence community’s operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333’s limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep’t of Def., DOD 5240 1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons § C2.3.12 (Dec. 1982); Nat’l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, U.S. Army Intelligence Procedures § 2-2(l) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best image quality in the agency’s possession, and in separate, Bates-stamped files.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 35 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


We also request that you provide an estimated date on which you will finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

LEGAL DEPARTMENTCase 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 36 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


May 13, 2013
BY USPS MAIL
Office of Informational Programs and Services A/GIS/IPS/RL Department of State, SA-2 Washington, DC 20522-8100
RE: FREEDOM OF INFORMATION ACT REQUEST
To Whom It May Concern:
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the “ACLU”) submit this request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Comp.) (“EO 12,333”). Specifically, we request the following records1:
1. Any records construing or interpreting the authority of the United States Department of State (“Department”) under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the Department with regard to both intelligence collection and intelligence interception conducted pursuant to the Department’s authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the “collection,” “acquisition,” or “interception” of communications, as the Department defines these terms, pursuant to the Department’s authority under EO 12,333 or any regulations issued thereunder.

1

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 37 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a “representative of the news media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU’s mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a “representative of the news media” as an “entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf. Am. Civil Liberties Union v. Dep’t of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be “‘primarily engaged in disseminating information’”). Indeed, the ACLU recently was held to be a “representative of the news media.” Serv. Women’s Action Network v. Dep’t of Defense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep’t of Justice, No. C09–0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a “representative of the news media”), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it “is likely to contribute significantly to public understanding of the operations or activities of the government,” and (2) it “is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns “the operations or activities” of the Department. E.O. 12,333 is “intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers.” EO 12,333 § 2.2. It authorizes the intelligence community, including the Department, to collect intelligence, and it sets forth certain limitations on intelligence-gathering activities relevant to civil liberties. In its brief in a

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 38 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


recent case before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance of Americans’ foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will “contribute significantly to the public understanding” of the Department’s operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333’s limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep’t of Def., DOD 5240 1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons § C2.3.12 (Dec. 1982); Nat’l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, U.S. Army Intelligence Procedures § 2-2(l) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 39 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


image quality in the agency’s possession, and in separate, Bates-stamped files.
We also request that you provide an estimated date on which you will finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 40 of 101
Exhibit B

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 41 of 101
"Phillips, Pamela" <pnphill@nsa.gov> NSA FOIA Clariﬁcation June 28, 2013 10:29 AM
Mr.$Abdo, $ $$$$$$$$Thank$you$for$speaking$to$me$this$morning$about$your$FOIA$request$and$helping$us$to$scope$it$into$a$manageable$search.$$We$will$continue$to work$with$the$organizations$conducting$the$searches,$and$if$we$need$any$additional$information$to$further$clarify$as$we$proceed,$I$will$give$you another$call$or$email$you.$$For$the$record,$here$is$what$we$decided$about$your$request$today: $ Case$70809$–$for$records$construing$or$interpreting$the$authority$of$NSA$under$O.E.$12333;$records$describing$the$minimization$procedures$used$by the$Agency;$records$describing$the$standards$that$must$be$satisfied$for$collection,$acquisition,$or$interception$of$communications $ You$agreed$to$limit$the$request$to$formally$issued$guidance$(of$which$I$mentioned$various$types,$such$as$DoD$Directions,$NSA$USSID,$NSA$Policies, various$issuances$relating$to$FISA,$compliance$training,$and$advisories).$$You$agreed$to$omit$guidance$that$simply$reiterates$or$includes$pieces$and excerpts$from$the$formal$guidance.$$You$also$agreed$that$you$are$not$seeking$emails.$$Finally,$you$indicated$that$you$would$want$any$separate$legal opinions$that$interpret$the$standards$or$define$terms$collection,$acquisition,$or$interception$to$the$extent$that$that$opinion/interpretation$is$not included$in$the$formal$guidance. $ $$$$$$$$Please$let$me$know$if$I$have$mischaracterized$or$misunderstood$our$conversation$in$any$way.$$You$will$be$receiving$a$formal$interim$response from$us$soon$with$two$previously$released$documents.$$Thanks$again. $ $$$$$$$$Pamela $ Pamela N. Phillips$ Chief, FOIA/PA Office (DJ4)$ FOIA Public Liaison Officer$ National Security Agency$ (301) 688-6527$ pnphill@nsa.gov$ $ $ $

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 42 of 101
NATIONAL SECURITY AGENCY CENTRAL SECURITY SERVICE
FORT GEORGE G. MEADE, MARYLAND 20755-6000
FOIA Case: 70809 1 July 2013
American Civil Liberties Union ATIN: Mr. Alexander Abdo National Office 125 Broad Street, 18th Fl. New York, NY 10004-2400
Dear Mr. Abdo:
This is an initial response to your Freedom of Information Act (FOIA) request dated 13 May 2013, which was received by this office on 30 May 2013, for access to documents relating to Executive Order 12333, 3 C.F.R. 200, specially the following records:
1. Any records construing or interpreting the authority of the National Security Agency ("Agency") under Executive 12333 or any regulations issues thereunder;
2. Any records describing the minimization procedures used by the Agency with regard to both intelligence collection and intelligence interception conducted pursuant to the Agency's authority under EO 12333 or any regulations ussued thereunder; and
3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as the Agency defines these terms, pursuant to the Agency's authority under EO 12333 or any regulations issued thereunder.
In a telephone conversation on 28 June 2013, you agreed to narrow your request to allow us to process it more quickly and to avoid search fees, since we have already begun processing several requests for similar information. You agree to limit your request (as relates to the above three items) to formally issued guidance, omiting emails and omiting guidance that reiterates or includes excerpts from the formal guidance. In addition, you indicated that you still desire any separate legal opinions that interpret the

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 43 of 101
FOIA Case: 70809
standards or define the terms in item 3 above, to the extent that it is not included in the formal guidance.
Your request has been assigned Case Number 70809. This letter indicates that we have begun to process your request. There is certain information relating to this processing about which the FOIA and applicable Department of Defense (DoD) and NSA/CSS regulations require we inform you. For purposes of this request, you are considered an "all other" requester. However, as we already indicated, the search is being conducted in response to other requests, so there will be no search fees assessed for this request. In addition, we do not plan to charge the duplication fees for the responsive material for any of the requesters. Therefore, we have not addressed your request for a waiver of fees.
With this response, we enclose two documents (USSID 18 and NSA/CSS Policy 1-23, 81 pages in total) that were previously released under the FOIA. We are continuing our search for responsive materials and will contact you again as information becomes available.
Correspondence related to your request should include the case number assigned to your request, which is included in the first paragraph of this letter. Your letter should be addressed to National Security Agency, FOIA Office (DJ4), 9800 Savage Road STE 6248, Ft. George G. Meade, MD 20755-6248 or may be sent by facsimile to 443-479-3612. If sent by fax, it should be marked for the attention of the FOIA office. The telephone number of the FOIA office is 301-688-6527.
Sincerely,

Encls: a/s

PAMELA N. PHILLIPS Chief
FOIA/PA Office

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 44 of 101
"Phillips, Pamela" <pnphill@nsa.gov> NSA FOIA 70809 August 21, 2013 4:40 PM
Mr.$Abdo, $$$$$$$$You$may$already$be$already$aware,$but$my$understanding$is$that$the$ODNI$is$going$to$post$several$documents$this$afternoon$related$to$Section 702$were$released$today$in$a$FOIA$litigation$case,$some$of$which$may$also$be$responsive$to$your$FOIA$request$to$this$agency$for$minimization procedures.$$They$are$to$be$posted$to$the$ODNI$website,$and$then$later$to$the$IContheRecord.tumblr.com$website.$$We$are$continuing$the$processing of$your$request$to$this$Agency$and$will$respond$further$when$documents$are$complete. $$$$$$$$Pamela $ $ Pamela N. Phillips$ Chief, FOIA/PA Office (DJ4)$ FOIA Public Liaison Officer$ National Security Agency$ (240) 373-1434$ pnphill@nsa.gov$
pnphill@nsa.smil.mil
$ $ $

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 45 of 101
NATIONAL SECURITY AGENCY CENTRAL SECURITY SERVICE
FORT GEORGE G. MEADE, MARYLAND 20755-6000
FOIA Case: 70809A 18 November 2013
American Civil Liberties Union ATTN: Mr. Alexander Abdo National Office 125 Broad Street, 18th Fl. New York, NY 10004-2400
Dear Mr. Abdo:
This further responds to your Freedom of Information Act (FOIA) request dated 13 May 2013 for access to documents relating to Executive Order (EO) 12333, 3 C.F.R. 200, specifically the following records:
1. Any records construing or interpreting the authority of the National Security Agency ("Agency") under EO 12333 or any regulations issues thereunder;
2. Any records describing the minimization procedures used by the Agency with regard to both intelligence collection and intelligence interception conducted pursuant to the Agency's authority under EO 12333 or any regulations ussued thereunder; and
3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as the Agency defines these terms, pursuant to the Agency's authority under EO 12333 or any regulations issued thereunder.
You agreed to narrow your request (as relates to the above three items) to formally issued guidance, omitting emails and omitting guidance that reiterates or includes excerpts from the formal guidance. In addition, you indicated that you still desire any separate legal opinions that interpret the standards or define the terms in item 3 above, to the extent that it is not included in the formal guidance.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 46 of 101
FOIA Case: 70809A
Two additional documents responsive to your request (USSID SP0018 and Annex J) have been processed under the FOIA and are enclosed. Certain information, however, has been deleted from the enclosures.
Some of the information deleted from the documents was found to be currently and properly classified in accordance with Executive Order 13526. This information meets the criteria for classification as set forth in Subparagraphs (c) and/ or (d) of Section 1.4 and remains classified SECRET as provided in Section 1.2 of the Executive Order. The information is classified because its disclosure could reasonably be expected to cause serious damage to the national security. Because the information is currently and properly classified, it is exempt from disclosure pursuant to the first exemption of the FOIA (5 U.S.C. Section 552(b)(1)).
In addition, this Agency is authorized by various statutes to protect certain information concerning its activities. We have determined that such information exists in these documents. Accordingly, those portions are exempt from disclosure pursuant to the third exemption of the FOIA which provides for the withholding of information specifically protected from disclosure by statute. The specific statutes applicable in this case are Title 18 U.S. Code 798; Title 50 U.S. Code 3024(i) (formerly Title 50 U.S. Code 403-1(i)); and Section 6, Public Law 86-36 (50 U.S. Code 3605, formerly 50 U.S. Code 402 note).
The Initial Denial Authority for NSA information is the Associate Director for Policy and Records, David J. Sherman. Since these deletions may be construed as a partial denial of your request, you are hereby advised of this Agency's appeal procedures. Any person denied access to information may file an appeal to the NSA/CSS Freedom of Information Act Appeal Authority. The appeal must be postmarked no later than 60 calendar days from the date of the initial denial letter. The appeal shall be in writing addressed to the NSA/CSS FOIA Appeal Authority (DJ4), National Security Agency, 9800 Savage Road STE 6248, Fort George G. Meade, MD 20755-6248. The appeal shall reference the initial denial of access and shall contain, in sufficient detail and particularity, the grounds upon which the requester believes release of the information is required. The NSA/ CSS Appeal Authority will endeavor to respond to the appeal within 20 working days after receipt, absent any unusual circumstances.
The State Department has also asked that we protect information pursuant to 5 U.S.C. 552(b)(1). We will coordinate any appeal of the denial of that information with the State Department.
--~---

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 47 of 101
FOIA Case: 70809A
Review of additional documents responsive to your request continues; they will be provided to you as they are completed. In addition, documents related to NSA collection activities and procedures continue to be released in litigation on behalf of the Intelligence Community (IC) by the Office of the Director of National Intelligence (ODNI). You will find those documents posted on the ODNI web page, as well as on ICon the Record (IContheRecord. tumblr .com).
Sincerely,

Ends: afs

PAMELA N. PHILLIPS Chief
FOIA/PA Office

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 48 of 101
Exhibit C

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 49 of 101

Alexander Abdo National Security Project ACLU 125 Broad St. 18th Fl.
New York NY 10004-2400

U.S. Department of Justice Office of Legal Counsel Washington, D.C. 20530 June 25, 2013

Re: FOIA Tracking No. FY13-051
Dear Mr. Abdo:
This letter acknowledges receipt of your Freedom oflnformation Act ("FOIA") request to the Office of Legal Counsel ("OLC"), dated May 13, 2013. We received your request on May 29,2013, and assigned it FOIA tracking number FY13-051.
We have not yet made a decision on your request for a fee waiver. We will do so after we determine whether fees will be assessed for this request.
Finally, pursuant to your conversation with my colleague David Lehn on June 20, 2013, we propose that your request be revised as follows:
1) All OLC final legal advice concerning the scope and application of the authority of the United States Government to conduct electronic surveillance of the communications of United States persons pursuant to Executive Order 12333 or its implementing regulations, regardless of whether the United States person is the target of the electronic surveillance or is in the United States at the time of the electronic surveillance, except to the extent that the electronic surveillance is conducted pursuant to the Foreign Intelligence Surveillance Act. For purposes of this request, "electronic surveillance" and "United States person" have the meaning given in Executive Order 12333.
2) All OLC final legal advice concerning the meaning ofthe terms "collection", "acquisition", and "interception" as applied to electronic surveillance conducted pursuant to Executive Order 12333 or its implementing regulations. For purposes of this request, "electronic surveillance" has the meaning given in Executive Order 12333.
Please let us know whether you agree to this proposal, so that the processing of your request may proceed, consistent with its position in OLC's FOIA queue. To do so, or to discuss any other aspect of your request, you may contact Elizabeth Farris, our Supervisory Paralegal and FOIA contact, at usdoj-officeoflegalcounsel@usdoj.gov, (202) 514-2038, or Office of Legal

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 50 of 101 Counsel, United States Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, DC 20530.
Sincerely, Paul P. Colborn Special Counsel
2

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 51 of 101
"Lehn, David (OLC)" <David.Lehn@usdoj.gov> RE: OLC FOIA Request 13-051 July 10, 2013 12:34 PM
Great&'&thanks,&Alex. &
From: Alexander Abdo [mailto:aabdo@aclu.org] Sent: Wednesday, July 10, 2013 12:23 PM To: Lehn, David (OLC) Subject: RE: OLC FOIA Request 13-051
David, this looks great. Thanks so much.
From: Lehn, David (OLC) [mailto:David.Lehn@usdoj.gov] Sent: Monday, July 08, 2013 3:27 PM To: Alexander Abdo Subject: RE: OLC FOIA Request 13-051
Hi,&Alex.&Thanks&for&getting&back&to&me.&I&carved&out&FISA&in&light&of&my&understanding&of&what&you&were&seeking&based&on&our&conversation.&&But&we can&eliminate&the&carve'out&given&that&the&application&of&EO&12333&to&elsur&under&FISA&is&fairly&within&the&scope&of&your&original&request.&So,&how about&this? & 1) All OLC final legal advice concerning Executive Order 12333 or its implementing regulations with respect to electronic surveillance
by the United States Government of communications of United States persons, regardless of whether the United States person is the target of the electronic surveillance or is in the United States at the time of the electronic surveillance. For purposes of this request, "electronic surveillance" and "United States person" have the meaning given in Executive Order 12333. 2) All OLC final legal advice concerning the meaning of the terms "collection", "acquisition", and "interception" as used in Executive Order 12333 or its implementing regulations with respect to electronic surveillance by the United States Government of communications of United States persons. For purposes of this request, "electronic surveillance" has the meaning given in Executive Order 12333. & &
From: Alexander Abdo [mailto:aabdo@aclu.org] Sent: Saturday, June 29, 2013 1:18 PM To: Lehn, David (OLC) Subject: Re: OLC FOIA Request 13-051
David,
Thanks so much for memorializing this. I have a few modifications I'd like to make, just to make sure the request is targeted at what we're interested in.
In the first bullet point, can we change "pursuant to Executive Order 12,333" to "governed by Executive Order 12,333," and can we delete the phrase "except to the extent that the electronic surveillance is conducted pursuant to the Foreign Intelligence Surveillance Act"? My understanding is that the executive order often imposes additional requirements on surveillance conducted pursuant to other authorities (such as FISA or the FISA Amendments Act). I think the language you proposed would cover those situations as well, but I just want to make sure it's clear.
For the same reason and in the second bullet point, can we change "pursuant to" to "governed by"?
Thanks so much,
Alex
On Jun 25, 2013, at 3:42 PM, "Lehn, David (OLC)" <David.Lehn@usdoj.gov> wrote:
Alex,&following&up&on&our&call&last&week,&please&see&the&attached&letter.&Notwithstanding&what&the&letter&says,&you&can&respond&directly&to&me.&Thanks & & & & ____________________

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 52 of 101
David&Lehn Attorney'Adviser Office&of&Legal&Counsel U.S.&Department&of&Justice 202'514'5572 & & &
<13-051 ack 2013-06-25.pdf>

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 53 of 101
Exhibit D

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 54 of 101
Central Intelligence Agency

Washington, D.C. 20505
Mr. Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004-2400

26 July 2013

Reference: F-2013-01775

Dear Mr. Abdo:

This is a final response to your 13 May 2013 Freedom of Information Act (FOIA) request, submitted on behalf of the American Civil Liberties Union, received in the office of the Information and Privacy Coordinator on 23 May 2013, for:

1. Any records construing or interpreting the authority of the Central Intelligence Agency ("Agency'') under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures used by the Agency with regard to both intelligence collection and intelligence interception conducted pursuant to the Agency's authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as the agency defines these terms, pursuant to the Agency's authority under EO . 12,333 or any regulations issued thereunder.

We cannot accept your FOIA request in its current form because it would require the Agency to perfortn an umeasonably burdensome search. The FOIA requires requesters to· "reasonably describe" the information they seek so that professional employees familiar with the subject matter can locate responsive information with a reasonable amount of effort. Commonly this equates to a requirement that the documents must be locatable through the indexing of our various systems. Extremely broad or vague requests or requests requiring research do not satisfy this requirement.

Sincerely,
./(.J.il~
Michele Meeks Information and Privacy Coordinator

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 55 of 101
Exhibit E

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 56 of 101
NATIONAL SECURITY PROJECT
AMERICAN CIVIL LIBERTIES UNION

November 1, 2013

BY USPS MAIL

Agency Release Panel (ARP) c/o Coordinator Information and Privacy Coordinator Central Intelligence Agency (CIA) Washington, DC 20505

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004-HOO T/212.549.2500 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D ROMERO EXECUTIVE DIRECTOR

Re: FREEDOM OF INFORMATION ACT APPEAL- NO. F-2013-01775
Dear Panelists:
The American Civil Liberties Union and the American Civil Liberties Foundation (collectively "ACLU") write to appeal from the response ofthe Central Intelligence Agency ("CIA") to FOIA Request No. F-2013-01775, in which the ACLU seeks the following records:
1. Any records construing or interpreting the authority of the Central Intelligence Agency ("Agency") under Executive Order 12,333 or any regulations issued thereunder;

2. Any records describing the minimization procedures used by the Agency with regard to both intelligence collection and intelligence interception conducted pursuant to the Agency's authority under EO 12,333 or any regulations issued thereunder; and

3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as the Agency defines these terms, pursuant to the Agency's authority under EO 12,333 or any regulations issued thereunder. See FOIA Request ofMay 13, 2013 ("Request") (Exhibit 1, attached).

In a letter dated July 26, 2013 ("Response Letter") (Exhibit 2, attached), Information and Privacy Coordinator Michele Meeks of the CIA denied the ACLU's Request in its entirety stating, that "The FOIA requires requesters to 'reasonably describe' the information they seek so that professional employees [sic] can locate responsive documents with a reasonable amount of effort. Commonly this equates to a requirement that the documents must be locatable through the indexing of our various systems."

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 57 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

The CIA's denial of the ACLU's Request was premised entirely on its determination that the records sought exceed what is required by the FOIAi.e., that the Request is "extremely broad or vague" and "would require the Agency to perform an unreasonably burdensome search." See Response Letter. This determination is inaccurate and without basis.
The Request is specific in what it seeks. The second and third paragraphs ofthe request seek discrete categories of records: those describing the Agency's minimization procedures under EO 12,333 and those articulating the standards that the Agency must satisfy before collecting, acquiring, or intercepting communications under EO 12,333. The first paragraph of the request, though comprehensive, nonetheless specifies a discrete category of records for processing: those construing or interpreting the Agency's authority under EO 12,333. Although the ACLU is not in a position to be more specific without additional information from the Agency, the first paragraph of the request includes, at a minimum, rules, policies, or legal opinions describing the Agency's authority to conduct-or analyze, use, retain, and disseminate the fruits of-electronic surveillance under EO 12,333.
These specific categories of documents must be processed by the CIA under FOIA. Indeed, at least four other government agencies-the United States Air Force, the Department ofthe Army, the Department of Homeland Security, and the National Security Agency-have already processed and produced documents in response to identical FOIA requests. In addition, at least three other government agencies-the Department of State, the Department of the Army, and the Department of Justice National Security Division-have already granted fee waivers to the ACLU with respect to identical FOIA requests.
For the reasons stated above, the CIA's determination to deny the Request was erroneous and should be reversed.
Sincerely,

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 58 of 101
Exhibit 1

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 59 of 101

LEGAL DEPARTMENT

I AMERICAN CIVIL UBERTIES UNION

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONAL OFFICE 125 BIWAD STREET, 18TH FL. NEW YORK, NY lOQ04·2400 T/212.549·2500 F/>1.2.549·2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

May 13,2013
BY USPS MAIL
Information and Privacy Coordinator Central Intelligence Agency Washington, DC 20505
RE: FREEDOM OF INFORMATION ACT REQUEST
To Whom It May Concern:
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") submit this request under the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.P.R. 200 (1981 Comp.) ("EO 12,333"). Specifically, we request the following records 1:
1. Any records construing or interpreting the authority of the Central Intelligence Agency ("Agency") under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the Agency with regard to both intelligence collection and intelligence interception conducted pursuant to the Agency's authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as the Agency defines these terms, pursuant to the Agency's authority under EO 12,333 or any regulations issued thereunder.

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 60 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAl. OFFICE l25 BROAD STREET, lBTH FL NEW YORK 1 NY tooor.1.-.u1.oo T/n2. St1.g. 2500 f/212.549·2651 WWW.ACI..U.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
Al'iTHONY D. ROMERO EXECUTIVE DIRECTOR

Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a "representative ofthe news media." 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU's mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a "representative of the news media" as an "entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat'! Sec. Archive v. Dep't ofDef, 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf Am. Civil Liberties Union v. Dep 't ofJustice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be "'primarily engaged in disseminating information"'). Indeed, the ACLU recently was held to be a "representative of the news media." Serv. Women's Action Network v. Dep 't ofDefense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 20 12); see also Am. Civil Liberties Union of Wash. v. Dep 't ofJustice, No. C09-0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a "representative ofthe news media"), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it "is likely to contribute significantly to public understanding of the operations or activities of the government," and (2) it "is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns "the operations or activities" of the Agency. E.O. 12,333 is "intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers." EO 12,333 § 2.2. It authorizes the intelligence community, including the Agency, to collect intelligence, and it sets forth certain limitations on intelligence-gathering activities relevant to civil liberties. In its brief in a

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 61 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YOI~K, NY 10004-2400 T/u>. 549· 2500 F/2».549·2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

recent case before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance of Americans' foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int'l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course ofthat surveillance, are matters of great significance.
Moreover, the requested materials will "contribute significantly to the public understanding" of the Agency's operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int'l USA, No. 11-1025,2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333's limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep't of Def., DOD 5240 1-R, Procedures Governing the Activities ofDOD Intelligence Components that Affect United States Persons§ C2.3.12 (Dec. 1982); Nat'] Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, US. Army Intelligence Procedures § 2-2(1) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the US.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 62 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONAl.. OFFICE 125 BROAD STREET, 18TH FL. NEW YORK 1 NY l0004~2.ftOO T/212,549·2500 F/212.549·2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

image quality in the agency's possession, and in separate, Bates-stamped files.
We also request that you provide an estimated date on which you will finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 63 of 101
Exhibit 2

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 64 of 101
Central Intelligence Agency

Washington, D.C. 20505

Mr. Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004-2400

26 July 2013

Reference: F-2013-01775

Dear Mr. Abdo:

This is a final response to your 13 May 2013 Freedom of Information Act (FOIA) request, submitted on behalf of the Amencan Civil Liberties Union, received in the office · of the Information and Privacy Coordinator on 23 May 2013, for:

1. Any records construing or interpreting the authority ofthe Central Intelligence

Agency ("Agency") under Executive Order 12,333 or any regulations issued

thereunder;

2. Any records describing the minimization procedures used by the Agency with

regard to both intelligence collection and intelligence interception conducted

pursuant to the Agency's authority under EO 12,333 or any regulations issued

thereunder; and

·

3. Any records describing the standards that must be satisfied for the

"collection," "acquisition," or "interception" of communications, as the

agency defines these terms, pursuant to the Agency's authority under EO .

12,333 or any regulations issued thereunder.

We cannot accept your FOIA request in its current form because it would require the Agency to perfortn an :unreasonably burden.some·search. The FOIA requires· requesters to "reasonably describe" the information they seek so that professional employees familiar with the subject matter can locate responsive information with a reasonable amount of effort. Commonly this equates to a requirement that the documents must be locatable through the indexing of our various systems. Extremely broad or vague requests or requests requiring research do not satisfy this requirement.

Sincerely,
/(~~
Michele Meeks Information and Priva~y Coordinator

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 65 of 101
Exhibit F

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 66 of 101
NATIONAL SECURITY PROJECT
AMERICAN CIVIL liBERTIES UNION

November 8, 2013

BY UPS

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004-2400 T/212.549.2500 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

Defense Intelligence Agency ATTN: DAN-1A(FOIA) 200 MacDill Blvd Washington, DC 20340-5100
RE: FREEDOM OF INFORMATION ACT APPEAL
Dear Sir or Madam,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") write to appeal from the constructive denial of their Freedom of Information Act request, submitted on
May 13, 2013, for documents relating to Executive Order 12,333, "3 C.F.R.
200 (1981 Comp.) ("EO 12,333"). A copy of the request is attached here for reference. The ACLU received an acknowledgement of receipt dated June 6, 2013 in a letter signed by Alesia Y. Williams. The request was assigned the following identification number: F-2013-09022.

Under the Freedom of Information Act, determinations about whether an agency will produce documents must be made within 20 business days. See 5 U.S.C. § 552(a)(6)(A)(i); 28 C.F.R. § 16.6(b). Where an agency cannot meet the statutory time limit due to unusual circumstances, the agency may extend the time limit by ten working days with written notice to the requester. 5. U.S.C. § 552(a)(6)(B). An agency denying a request in any respect must send the requester a signed letter including, among other things, a brief statement of the reasons for denial. 5 U.S.C. § 552(a)(6)(A)(i).

Because the twenty-day statutory time and the ten-day extension have elapsed without a substantive response, the Defense Intelligence Agency has constructively failed to meet its legal obligation to disclose the information requested. By this appeal, we ask you to direct the timely disclosure of all records responsive to our request.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 67 of 101
We thank you for your consideration of this appeal. Pursuant to 5 U.S.C. § 552(a)(6)(A)(ii), we expect a response regarding this appeal within twenty days. If you have any questions or concerns, please do not hesitate to contact me at the email address or telephone number indicated below.
Sincerely,

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 68 of 101

LEGAL DEPARTMENT

I AMERICAN CIVIL LIBERTIES UNION

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONAL OFFICE l>5 BROAD STRE:ET, 18TH FL. NEW YORK, NY l0004·>400 T/212.549·2.500 F/21>.549·>65' WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

May 13,2013
BY USPS MAIL
Margaret A. Bestrain, Chief, FOIA and Decl~itssification Services Branch Defense Intelligence Agency U.S. Department of Defense ATTN: DAN-IA (FOIA) 200 MacDill Blvd. Washington, DC 20340-5100
RE: FREEDOM OF INFORMATION ACT REQUEST
Dear Ms. Bestrain,
The American Civil Liberties Unio·n and the American Civil Liberties Union Foundation (together, the "ACLU") submit this request under the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.P.R. 200 (1981 Comp.) ("EO 12,333"). Specifically, we request the following records1:
1. Any records construing or interpreting the authority of the Defense Intelligence Agency ("Agency") under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the Agency with regard to both intelligence collection and intelligence interception conducted pursuant to the Agency's authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as the Agency defines these terms, pursuant to the Agency's authority under EO 12,333 or any regulations issued thereunder.

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 69 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONAL OFfiCE 125 BROAD STREET, 18TH FL. NEW YOHK, NY lOOOtr~:t..tt.OO T/:u 2. SLr9· '2.$00 Ft2·u.549·265~ WWW.AC:LU.OI<Ci
OFFICERS AND DIRI::CfORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a "representative ofthe news media." 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU's mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a "representative of the news media" as an "entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." 5 U.S. C. § 552(a)(4)(A)(ii); see also Nat'! Sec. Archive v. Dep 't ofDef, 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf Am. Civil Liberties Union v. Dep 't ofJustice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be "'primarily engaged in disseminating information"'). Indeed, the ACLU recently was held to be a "representative of the news media." Serv. Women's Action Network v. Dep 't ofDefense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep 't ofJustice, No. C09-0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a "representative ofthe news media"), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it "is likely to contribute significantly to public understanding of the operations or activities of the government," and (2) it "is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns "the operations or activities" of the Agency. E.O. 12,333 is "intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers." EO 12,333 § 2.2. It authorizes the intelligence community, including the Agency, to collect intelligence, and it sets forth certain limitations on intelligence-gathering activities relevant to civil liberties. In its brief in a

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 70 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL. OFFICE 125 BROAD STREET, 18TH FL. NEW YOf~Kf NY lOOOL~w2(t00 'T,,,,, 549· 2500 F/212.549·2651 WWW.ACL.U.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

recent case before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance of Americans' foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int 'l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will "contribute significantly to the public understanding" of the Agency's operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int'l USA, No. 11-1025,2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333 's limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep't ofDef., DOD 5240 1-R, Procedures Governing the Activities ofDOD Intelligence Components that Affect United States Persons§ C2.3.12 (Dec. 1982); Nat'! Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, US. Army Intelligence Procedures § 2-2(1) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the U.S.A, v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 71 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 6ROAD STREET, 18TH FL. NEW YOI~K, NY 10004->400 T/21>.54·9·>500 F/n>.549·>65l WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

image quality in the agency's possession, and in separate, Bates-stamped files.
We also request that you provide an estimated date on which you will finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 17

NATIONAL SECURITY PROJECT

ACLU I AMERICAN CIVIL LIBERTIES UNION

Filed 02/18/14 Page 72 of 101

November 8, 2013

BY UPS

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004-2400 T/212.549.2500 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

NSA/CSS FOIAAppeal Authority (DJ4) National Security Agency 9800 Savage Road, Suite 6248 Ft. George G. Meade, MD 20755-6248
RE: FREEDOM OF INFORMATION ACT APPEAL
Dear Sir or Madam,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") write to appeal from the constructive denial of their Freedom of Information Act request, submitted on May 13, 2013, for documents relating to Executive Order 12,333, 3 C.P.R. 200 (1981 Comp.) ("EO 12,333"). A copy of the request is attached here for reference. The ACLU received an acknowledgement of receipt dated July 1, 2013 in a letter signed by Pamela N. Philips. The request was assigned the following identification number: 70809.

Under the Freedom of Information Act, determinations about whether
an agency will produce documents must be made within 20 business days. See
5 U.S.C. § 552(a)(6)(A)(i); 28 C.P.R.§ 16.6(b). Where an agency cannot meet the statutory time limit due to unusual circumstances, the agency may extend the time limit by ten working days with written notice to the requester. 5. U.S.C. § 552(a)(6)(B). An agency denying a request in any respect must send the requester a signed letter including, among other things, a brief statement of the reasons for denial. 5 U.S.C. § 552(a)(6)(A)(i).

Because the twenty-day statutory time has elapsed without a substantive response, the National Security Agency has constructively failed to meet its legal obligation to disclose the information requested. By this appeal, we ask you to direct the timely disclosure of all records responsive to our request.

~:::.::-@

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 73 of 101
We thank you for your consideration of this appeal. Pursuant to 5 U.S.C. § 552(a)(6)(A)(ii), we expect a response regarding this appeal within twenty days. If you have any questions or concerns, please do not hesitate to contact me at the email address or telephone number indicated below.
Sincerely,

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 74 of 101

LEGAL DEPARTMENT

I AMERICAN CIVIL UBERTIES UNlON

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE '·'5 BROAD STREET, 18TH FL. NEW YORK, NY l.0004·240o T/>».549·'500
F/21.;;~.st,g.26Sl
WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

May 13, 2013
BY USPS MAIL
Attn: Cindy Blacker NSA FOIA Requester Service Center/DJ4 9800 Savage Road, Suite 6248 Ft. George G. Meade, MD 20744-6248
RE: FREEDOM OF INFORMATION ACT REQUEST
Dear Ms. Blacker,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") submit this request under the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.P.R. 200 (1981 Comp.) ("EO 12,333"). Specifically, we request the following records1:
1. Any records construing or interpreting the authority of the National Security Agency ("Agency") under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the Agency with regard to both intelligence collection and intelligence interception conducted pursuant to the Agency's authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as the Agency defines these terms, pursuant to the Agency's authority under EO 12,333 or any regulations issued thereunder.

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 75 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFIC~. 125 BROAD STREET, 18TH FL. NEW YORK, NY J.ooo4.~2.ftoo T/>n. 549· 2500 F/212.. 549·2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a "representative of the news media." 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU's mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a "representative of the news media" as an "entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat'! Sec. Archive v. Dep 't ofDef, 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf Am. Civil Liberties Union v. Dept ofJustice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be "'primarily engaged in disseminating information"'). Indeed, the ACLU recently was held to be a "representative of the news media." Serv. Women :S Action Network v. Dept ofDefense, 888 F. Supp. 2d 282, 287-88 (D. Conn.
2012); see also Am. Civil Liberties Union of Wash v. Dept ofJustice, No.
C09-0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a "representative of the news media"), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure ofthe requested information is in the public interest because: (1) it "is likely to contribute significantly to public understanding of the operations or activities of the government," and (2) it "is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns "the operations or activities" of the Agency. E.O. 12,333 is "intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers." EO 12,333 § 2.2. It authorizes the intelligence community, including the Agency, to collect intelligence, and it sets forth certain limitations on intelligence-gathering activities relevant to civil liberties. In its brief in a

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 76 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL.
T/212.549·2500 F/2:12.549·2651 WWW.ACLl!.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

recent case before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance ofAmericans' foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int 'l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights ofAmerican citizens and residents whose communications are intercepted in the course ofthat surveillance, are matters of great significance.
Moreover, the requested materials will "contribute significantly to the public understanding" of the Agency's operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int'l USA, No. 11-1025, 2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333's limits on the intelligence community in slightly different ways or provide predictable definitions for tenns left undefined in the executive order. See, e.g., Dep't of Def., DOD 5240 1-R, Procedures Governing the Activities ofDOD Intelligence Components that Affect United States Persons § C2.3.12 (Dec. 1982); Nat'l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, US Army Intelligence Procedures § 2-2(1) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D.lll. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the USA. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 77 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004·>400 T/lU. 549.1500 F/212.549·2651 WWW.ACLLJ.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANHIONY D. ROMERO EXECUTIVE DIRECTOR

electronically in a text-searchable, static-image format (PDF), in the best image quality in the agency's possession, and in separate, Bates-stamped files.
We also request that you provide an estimated date on which you will
finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 78 of 101
NATIONAL SECURITY PROJECT
AMERICAN CIVIL LIBERTIES UNION

November 8, 2013

BY UPS

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004-2400 T/212.549.2500 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN
PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

Office of Information Policy U.S. Department of Justice, Suite 11050 1425 New York Avenue, N.W. Washington, D.C. 20530
RE: FREEDOM OF INFORMATION ACT APPEAL [FEDERAL BUREAU OF INVESTIGATION]
Dear Sir or Madam,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") write to appeal from the constructive denial of their Freedom of Information Act request, submitted on May 13, 2013, for documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Comp.) ("EO 12,333"). A copy of the request is attached here for reference. TheACLU received an acknowledgement ofreceipt dated June 7, 2013 in a letter signed by David M. Hardy. The request was assigned the following identification number: 1216886-000.

Under the Freedom of Information Act, determinations about whether an agency will produce documents must be made within 20 business days. See 5 U.S.C. § 552(a)(6)(A)(i); 28 C.F.R. § 16.6(b). Where an agency cannot meet the statutory time limit due to unusual circumstances, the agency may extend the time limit by ten working days with written notice to the requester. 5. U.S.C. § 552(a)(6)(B). An agency denying a request in any respect must send the requester a signed letter including, among other things, a brief statement of the reasons for denial. 5 U.S.C. § 552(a)(6)(A)(i).

Because the twenty-day statutory time has elapsed without a substantive response, the Federal Bureau of Investigation has constructively failed to meet its legal obligation to disclose the information requested. By this appeal, we ask you to direct the timely disclosure of all records responsive to our request.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 79 of 101
We thank you for your consideration of this appeal. Pursuant to 5 U.S.C. § 552(a)(6)(A)(ii), we expect a response regarding this appeal within twenty days. If you have any questions or concerns, please do not hesitate to contact me at the email address or telephone number indicated below.
Sincerely,

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 80 of 101

LEGAL DEPARTMENT

I AMERICAN CIVIL LIBERTIES UNION

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY looo4->4oo T /> "· 549· 2500
F/n>.st,g. 2651
WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

May 13,2013
BY USPS MAIL
Federal Bureau of Investigation Attn: FOI/PA Request Record/Information Dissemination Section 170 Marcel Drive Winchester, VA 22602-4843
RE: FREEDOM OF INFORMATION ACT REQUEST
To Whom It May Concern:
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") submit this request under the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.P.R. 200 (1981 Comp.) ("EO 12,333"). Specifically, we request the following records 1:
1. Any records construing or interpreting the authority of the Federal Bureau oflnvestigation ("FBI") under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the FBI with regard to both intelligence collection and intelligence interception conducted pursuant to the FBI's authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as the FBI defines these terms, pursuant to the FBI's authority under EO 12,333 or any regulations issued thereunder.

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 81 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL. OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 1ooo4~2ftOO T/212.549.2500 F/2t:L549-2651 WWW.ACLl!.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a "representative ofthe news media." 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU's mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a "representative ofthe news media" as an "entity that gathers information of potential interest to a segment of the public, uses its editorial skills to tum the raw materials into a distinct work, and distributes that work to an audience." 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat'! Sec. Archive v. Dept ofDef, 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf Am. Civil Liberties Union v. Dept ofJustice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be '"primarily engaged in disseminating information"'). Indeed, the ACLU recently was held to be a "representative of the news media." Serv. Women :S Action Network v. Dep 't ofDefense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dept ofJustice, No. C09-0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a "representative ofthe news media"), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure ofthe requested information is in the public interest because: (1) it "is likely to contribute significantly to public understanding ofthe operations or activities ofthe government," and (2) it "is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns "the operations or activities" of the FBI. E.O. 12,333 is "intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers." EO 12,333 § 2.2. It authorizes the intelligence community, including the FBI, to collect intelligence, and it sets forth certain limitations on intelligencegathering activities relevant to civil liberties. In its brief in a recent case

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 82 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 1000t~~2400 T/»>.. 54·9· 2500 F/n2.549·2651 WWW.ACLU.OilG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance ofAmericans' foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int 'l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will "contribute significantly to the public understanding" of the FBI's operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its
authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int'l
USA, No. 11-1025, 2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333's limits on the intelligence community in slightly different ways or provide predictable definitions for tenns left undefined in the executive order. See, e.g., Dep't ofDef., DOD 5240 1-R, Procedures Governing the Activities ofDOD Intelligence Components that Affect United States Persons§ C2.3.12 (Dec. 1982); Nat'l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, US. Army Intelligence Procedures§ 2-2(1) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the US.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. Ifthe search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best image quality in the agency's possession, and in separate, Bates-stamped files.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 83 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONAl. OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004·2400 T/212. 549.25oo F/212.549·2651 WWW.ACI.LJ.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

We also request that you provide an estimated date on which you will finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 84 of 101
NATIONAL SECURITY PROJECT
AMERICAN CIVIL LIBERTIES UNION

BY UPS

November 8, 2013

Office of Information Policy U.S. Department of Justice, Suite 11050 1425 New York Avenue, N.W. Washington, D.C. 20530-0001

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET. 18TH FL. NEW YORK. NY 10004-2400 T/212 549 2500 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

RE: FREEDOM OF INFORMATION ACT APPEAL [NATIONAL SECURITY DIVISION)
Dear Sir or Madam,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") write to appeal from the constructive denial of their Freedom of Information Act request, submitted on May 13, 2013, for documents relating to Executive Order 12,333, 3 C.P.R. 200 (1981 Comp.) ("EO 12,333"). A copy of the request is attached here for reference. TheACLU received an acknowledgement ofreceipt dated June 11, 2013 in a letter signed by Ametta Mallory. The request was assigned the following identification number: 13-175.

Under the Freedom of Information Act, determinations about whether an agency will produce documents must be made within 20 business days. See 5 U.S.C. § 552(a)(6)(A)(i); 28 C.F.R. § 16.6(b). Where an agency cannot meet the statutory time limit due to unusual circumstances, the agency may extend the time limit by ten working days with written notice to the requester. 5. U.S.C. § 552(a)(6)(B). An agency denying a request in any respect must send the requester a signed letter including, among other things, a brief statement of the reasons for denial. 5 U.S.C. § 552(a)(6)(A)(i).

Because the twenty-day statutory time has elapsed without a substantive response, the Department of Justice, National Security Division has constructively failed to meet its legal obligation to disclose the information requested. By this appeal, we ask you to direct the timely disclosure of all records responsive to our request.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 85 of 101
We thank you for your consideration of this appeal. Pursuant to 5 U.S.C. § 552(a)(6)(A)(ii), we expect a response regarding this appeal within twenty days. If you have any questions or concerns, please do not hesitate to contact me at the email address or telephone number indicated below.
Sincerely,

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 86 of 101
LEGAL DEPARTMENT

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BIWAD STREET, 18TH FL.
T/::n2.549· 2500
F/:~.l:?..S't9·265l WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMEIW EXECUTIVE DIRECTOR

May 13,2013
BY USPS MAIL
Arnetta Mallory, FOIA Initiatives Coordinator National Security Division U.S. Department of Justice 950 Pennsylvania Avenue, NW Room 6150 Washington, DC 20530-0001
RE: FREEDOM OF INFORMATION ACT REQUEST
Dear Ms. Mallory,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") submit this request under the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.P.R. 200 (1981 Comp.) ("EO 12,333"). Specifically, we request the following records 1:
1. Any records construing or interpreting the authority of the National Security Division ("NSD") under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the NSD with regard to both intelligence collection and intelligence interception conducted pursuant to the NSD's authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as the NSD defines these terms, pursuant to the NSD's authority under EO 12,333 or any regulations issued thereunder.

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 87 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE. 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004·2400 T/n2. 511.9. 2500 F/21>.549.265> WWW.ACI.LJ.ORG
OFFICE'RS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a "representative ofthe news media." 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU's mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a "representative ofthe news media" as an "entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat'! Sec. Archive v. Dep ~ofDef, 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf Am. Civil Liberties Union v. Dep~ ofJustice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (fin~ing non-profit public interest group to be '"primarily engaged in disseminating information"'). Indeed, the ACLU
s recently was held to be a "representative of the news media." Serv. Women
Action Network v. Dep 't ofDefense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash, v. Dep ~ofJustice, No. C09-0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a "representative of the news media"), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it "is likely to contribute significantly to public understanding ofthe operations or activities ofthe government," and (2) it "is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns "the operations or activities" of the NSD. E.O. 12,333 is "intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers." EO 12,333 § 2.2. It authorizes the intelligence community, including the NSD, to collect intelligence, and it sets forth certain limitations on intelligencegathering activities relevant to civil liberties. In its brief in a recent case

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 88 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY tooott~24oo T/u<.549·<Soo F/212.549·2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance ofAmericans' foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int 'l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will "contribute significantly to the public understanding" ofthe NSD's operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int'l USA, No. 11-1025,2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333' s limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep't ofDef., DOD 5240 1-R, Procedures Governing the Activities ofDOD Intelligence Components that Affect United States Persons § C2.3.12 (Dec. 1982); Nat'l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, U.S. Army Intelligence Procedures§ 2-2(1) (2007). Judicial treatments of EO 12,333 contribute equally little to, the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best image quality in the agency's possession, and in separate, Bates-stamped files.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 89 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE. 125 BROAD STREET, 18TH FL. NEW YORK, NY J.ooot~-24.00 T/>12.549·2500 F/»2.549·2651 WWW.ACLlJ.ORG
OFFICU~S AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

We also request that you provide an estimated date on which you will
finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

NATIONAL SECURITY Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 90 of 101
PROJECT
AMERICAN CIVIL LIBERTIES UNION

BY UPS

November 8, 2013

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004-2400 T/212.549.2500 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

Office of Information Policy U.S. Department of Justice 1425 New York Avenue, N.W. Washington, DC 20530 0001
RE: FREEDOM OF INFORMATION ACT APPEAL [OFFICE OF LEGAL COUNSELl
Dear Sir or Madam,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") write to appeal from the constructive denial of their Freedom oflnformation Act request, submitted on May 13, 2013, for documents relating to ExecutiveOrder 12,333, 3 C.P.R. 200 (1981 Comp.) ("EO 12,333"). A copy ofthe request is attached here for reference. TheACLU received an acknowledgement ofreceipt dated June 25, 2013 in a letter signed by Paul P. Colborn. The request was assigned the following identification number: FYI13-051.

Under the Freedom of Information Act, determinations about whether an agency will produce documents must be made within 20 business days. See 5 U.S.C. § 552(a)(6)(A)(i); 28 C.P.R. § 16.6(b). Where an agency cannot meet the statutory time limit due to unusual circumstances, the agency may extend the time limit by ten working days with written notice to the requester. 5. U.S.C. § 552(a)(6)(B). An agency denying a request in any respect must send the requester a signed letter including, among other things, a brief statement of the reasons for denial. 5 U.S.C. § 552(a)(6)(A)(i).

Because the twenty-day statutory time has elapsed without a substantive response, the Office of Legal Counsel has constructively failed to meet its legal obligation to disclose the information requested. By this appeal, we ask you to direct the timely disclosure of all records responsive to our request.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 91 of 101
We thank you for your consideration of this appeal. Pursuant to 5 U.S.C. § 552(a)(6)(A)(ii), we expect a response regarding this appeal within twenty days. If you have any questions or concerns, please do not hesitate to contact me at the email address or telephone number indicated below.
Sincerely,

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 92 of 101

LEGAL DEPARTMENT

I AMERICAN CIVIL LIBERTIES UNION

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK 1 NY 10004<1400 T/212..549·2500 F/212.549·2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

May 13, 2013
BY USPS MAIL
Elizabeth Farris, Supervisory Paralegal Office of Legal Counsel Room 5515,950 Pennsylvania Avenue, NW Department of Justice Washington, DC 20530-0001
RE: FREEDOM OF INFORMATION ACT REQUEST
Dear Ms. Farris,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") submit this request under the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Comp.) ("EO 12,333"). Specifically, we request the following records1:
1. Any records in which the Office of Legal Counsel ("OLC") construes or interprets the authority of the Department of Justice ("DOJ") or any executive agencies under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the government with regard to both intelligence collection and intelligence interception conducted pursuant to EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as those terms are defined in EO 12,333 or any regulations issued thereunder.

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 93 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY >.0004·2400 T/>.12. 549· 2500 F/212.549.2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a "representative of the news media." 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU's mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a "representative of the news media" as an "entity that gathers information of potential interest to a segment of the public, uses its editorial skills to tum the raw materials into a distinct work, and distributes that work to an audience." 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat'! Sec. Archive v. Dept ofDef, 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf Am. Civil Liberties Union v. Dept ofJustice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be "'primarily engaged in disseminating information"'). Indeed, the ACLU
s recently was held to be a "representative of the news media." Serv. Women
Action Network v. Dept ofDefense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dept ofJustice, No. C09-0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a "representative of the news media"), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it "is likely to contribute significantly to public understanding of the operations or activities ofthe government," and (2) it "is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns "the operations or activities" of the OLC. E.O. 12,333 is "intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers." EO 12,333 § 2.2. It authorizes the intelligence community, including the OLC, to collect intelligence, and it sets forth certain limitations on intelligencegathering activities relevant to civil liberties. In its brief in a recent case

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 94 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE
125 BROAD STREET, 18TH FL. NEW YORK, NY l0004.·2.ftOO T/>l>. 549· >.soo F/»>.549·>651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. RDMERO EXECUTIVE DIRECTOR

before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance ofAmericans' foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int 'l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will "contribute significantly to the public understanding" of the intelligence community's operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its
authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int'l
USA, No. 11-1025,2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333's limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep't ofDef., DOD 5240 1-R, Procedures Governing the Activities ofDOD Intelligence Components that Affect United States Persons § C2.3 .12 (Dec. 1982); Nat'l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation381-10, US. Army Intelligence Procedures§ 2-2(1) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the US.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best image quality in the agency's possession, and in separate, Bates-stamped files.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 95 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YOI~K, NY ,,ooot,·2400 T/ua. 549· 2500 F/212.549·2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

We also request that you provide an estimated date on which you will finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 96 of 101
NATIONAL SECURITY PROJECT
AMERICAN CIVIL LIBERTIES UNION

BY CERTIFIED MAIL

November 8, 2013

Chairman, Appeals Review Panel c/o Information and Privacy Coordinator/Appeals Oft1cer U.S. Department of State A/GIS/IPS/PP, SA-2 Washington, DC 20522-8100

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004-2400 T/212.549.2500 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERHAN PRESIDENT
ANTHONY D. ROHERO EXECUTIVE DIRECTOR

RE: FREEDOM OF INFORMATION ACT APPEAL
Dear Mr. Chairman,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") write to appeal from the constructive denial of their Freedom of Information Act request, submitted on May 13, 2013, for documents relating to Executive Order 12,333, 3 C.P.R. 200 (1981 Comp.) ("EO 12,333"). A copy of the request is attached here for reference. The ACLU received an acknowledgement of receipt dated June 5, 2013 in a letter signed by Mary Therese Casto. The request was assigned the following identification number: F-2013-09022.

Under the Freedom of Information Act, determinations about whether an agency will produce documents must be made within 20 business days. See 5 U.S.C. § 552(a)(6)(A)(i); 28 C.P.R. § 16.6(b). Where an agency cannot meet the statutory time limit due to unusual circumstances, the agency may extend the time limit by ten working days with written notice to the requester. 5. U.S.C. § 552(a)(6)(B). An agency denying a request in any respect must send the requester a signed letter including, among other things, a brief statement of the reasons for denial. 5 U.S.C. § 552(a)(6)(A)(i).

Because the twenty-day statutory time limit has elapsed without a substantive response, the Department of State has constructively failed to meet its legal obligation to disclose the information requested. By this appeal, we ask you to direct the timely disclosure of all records responsive to our request.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 97 of 101
We thank you for your consideration of this appeal. Pursuant to 5 U.S.C. § 552(a)(6)(A)(ii), we expect a response regarding this appeal within twenty days. If you have any questions or concerns, please do not hesitate to contact me at the email address or telephone number indicated below.
Sincerely,

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 98 of 101

LEGAL DEPARTMENT

I AMERICAN CIVIL LIBERTIES UNlON

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY lo004-2400 T/212.549·•5oo F/21.2.5t,g.2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. IHlMERO EXECUTIVE DIRECTOR

May 13,2013
BY USPS MAIL
Office of Informational Programs and Services A/GIS/IPS/RL Department of State, SA-2 Washington, DC 20522-8100
RE: FREEDOM OF INFORMATION ACT REQUEST
To Whom It May Concern:
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") submit this request under the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Camp.) ("EO 12,333"). Specifically, we request the following records1:
1. Any records construing or interpreting the authority of the United States Department of State ("Department") under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the Department with regard to both intelligence collection and intelligence interception conducted pursuant to the Department's authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as the Department defines these terms, pursuant to the Department's authority under EO 12,333 or any regulations issued thereunder.

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 99 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE
a 12S ROAD STREI:T,
18TH FL. NEW YORK, NY 10004·2400 T/ll2. 5t~9· zsoo F/212.549·2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a "representative ofthe news media." 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU's mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a "representative of the news media" as an "entity that gathers information of potential interest to a segment of the public, uses its editorial skills to tum the raw materials into a distinct work, and distributes that work to an audience." 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat'/ Sec. Archive v. Dep't ofDef, 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf Am. Civil Liberties Union v. Dep 't ofJustice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be '"primarily engaged in disseminating information"'). Indeed, the ACLU recently was held to be a "representative of the news media." Serv. Women's Action Network v. Dep 't ofDefense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep't ofJustice, No. C09-0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a "representative ofthe news media"), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19,2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it "is likely to contribute significantly to public understanding of the operations or activities ofthe government," and (2) it "is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns "the operations or activities" of the Department. E.O. 12,333 is "intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers." EO 12,333 § 2.2. It authorizes the intelligence community, including the Department, to collect intelligence, and it sets forth certain limitations on intelligence-gathering activities relevant to civil liberties. In its brief in a

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 100 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 1>5 BROAD STREET, 18TH FL. NEW YORK, NY 10004-2400 T/>ll. 549· >soo f/:;n.2.549·2651 WWW.ACI.U.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

recent case before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance of Americans' foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int 'l USA, No. 11-1025,2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course ofthat surveillance, are matters of great significance.
Moreover, the requested materials will "contribute significantly to the public understanding" of the Department's operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject offoreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int'l USA, No. 11-1025,2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333 's limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep't ofDef., DOD 5240 1-R, Procedures Governing the Activities ofDOD Intelligence Components that Affect United States Persons§ C2.3.12 (Dec. 1982); Nat'l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, US Army Intelligence Procedures § 2-2(1) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the USA. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. Ifthe search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best

Case 1:13-cv-09198-AT Document 17 Filed 02/18/14 Page 101 of 101

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 1ooot,·2400 T/212.549·2500 F/2».549·2651 WWW.ACI.U.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

image quality in the agency's possession, and in separate, Bates-stamped files.
We also request that you provide an estimated date on which you will finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney · National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

 
 Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 1 of 112

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

AMERICAN CIVIL LIBERTIES UNION, and AMERICAN CIVIL LIBERTIES UNION FOUNDATION,

Plaintiffs,

v.
NATIONAL SECURITY AGENCY, CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, and DEPARTMENT OF STATE,

No. 13-cv-09198 (AT) ECF Case

Defendants.

SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF Introduction
1. This is an action under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), seeking the release of records that describe the government’s understanding of its surveillance authority under Executive Order 12,333 (“EO 12,333”) as well as the rules that regulate the government’s acquisition, retention, use, and dissemination of the communications of Americans swept up in that surveillance.
2. During the last sixteen months, the true breadth of many of the government’s post-9/11 surveillance activities has been exposed to the light of day. The media has revealed that, for example, the National Security Agency (“NSA”) keeps a record of virtually every phone call made or received in the United States every day for the last five years. Reports have also disclosed that the NSA conducts sweeping surveillance of Americans’ international communications—by, for example, searching the contents of essentially all text-based

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 2 of 112
communications entering or leaving the country for specific keywords. 3. The discussion surrounding these disclosures has concentrated on the limitations
imposed on the government’s surveillance by several statutes—specifically, the Foreign Intelligence Surveillance Act (“FISA”), Section 215 of the Patriot Act (which amended the socalled “business records” provision of FISA), and the FISA Amendments Act of 2008. Considerably less attention has focused on surveillance undertaken pursuant to EO 12,333 and the protections in place under that executive order for Americans’ communications.
4. EO 12,333, signed on December 4, 1981 and modified numerous times since, is the principal source of authority for electronic surveillance that does not fall within the scope of FISA. Whereas FISA applies primarily to surveillance conducted on American soil or to surveillance abroad that targets Americans, EO 12,333 appears to be the sole authority for and limitation on government surveillance abroad that targets foreigners. Unlike surveillance conducted pursuant to FISA, surveillance undertaken solely pursuant to EO 12,333 is not overseen by the Foreign Intelligence Surveillance Court.
5. Although EO 12,333 permits the government to target foreigners abroad for surveillance, recent revelations have confirmed that the government interprets that authority to permit sweeping monitoring of Americans’ international communications. How the government conducts this surveillance, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great public significance and concern. While the government has released several documents describing the rules that govern its collection and use of Americans’ international communications under statutory authorities regulating surveillance on U.S. soil, little information is publicly available regarding the rules that apply to surveillance of
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Americans’ international calls and emails under EO 12,333. 6. That gap in public knowledge is particularly troubling in light of recent
revelations, which make clear that the NSA is collecting vast quantities of data worldwide pursuant to EO 12,333. For instance, recent news reports indicate that, relying on the executive order, the NSA is collecting: nearly 5 billion records per day on the location of cell phones, including Americans’ cell phones; hundreds of millions of contact lists or address books from personal email and instant messaging accounts; and information from Google and Yahoo user accounts as that information travels between those companies’ data centers located abroad.
7. Surveillance under EO 12,333 inevitably sweeps up the communications of U.S. persons. This FOIA suit seeks, in part, to determine what protections are afforded to those U.S. persons and whether those protections are consistent with the Constitution.
8. Disclosure of the records Plaintiffs seek through this action would greatly benefit the public and cause no harm to sensitive intelligence gathering. Plaintiffs seek legal standards and limitations, not operational details. The legal standards that govern surveillance, and the question of whether the government appropriately accommodates the constitutional rights of American citizens, are matters of enormous national significance and ongoing public concern.
Jurisdiction and Venue 9. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 552(a)(4)(B). 10. Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B) because Plaintiffs’ principal place of business is in Manhattan, New York, within this district.
Parties 11. Plaintiff American Civil Liberties Union (“ACLU”) is a nationwide, non-profit,
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nonpartisan 26 U.S.C. § 501(c)(4) organization with more than 500,000 members dedicated to the constitutional principles of liberty and equality. The ACLU is committed to ensuring that the American government complies with the Constitution and laws, including its international legal obligations, in matters that affect civil liberties and human rights. The ACLU is also committed to principles of transparency and accountability in government, and seeks to ensure that the American public is informed about the conduct of its government in matters that affect civil liberties and human rights. The ACLU is incorporated in New York State and has its principal place of business in New York City.
12. Plaintiff American Civil Liberties Union Foundation is a separate 26 U.S.C. § 501(c)(3) organization that educates the public about civil liberties and employs lawyers who provide legal representation free of charge in cases involving civil liberties. It is incorporated in New York State and has its principal place of business in New York City.
13. Defendant National Security Agency (“NSA”) is an intelligence agency established within the executive branch of the U.S. government and administered through the Department of Defense. The NSA is an agency within the meaning of 5 U.S.C. § 552(f)(1).
14. Defendant Central Intelligence Agency (“CIA”) is an intelligence agency established within the executive branch of the U.S. government and is an agency within the meaning of 5 U.S.C. § 552(f)(1).
15. Defendant Department of Defense is a department of the executive branch of the U.S. government and is an agency within the meaning of 5 U.S.C. § 552(f)(1). The Defense Intelligence Agency (“DIA”), from which the ACLU has requested records, is a component of the Department of Defense.
16. Defendant Department of Justice is a department of the executive branch of the
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U.S. government and is an agency within the meaning of 5 U.S.C. § 552(f)(1). The Federal Bureau of Investigation (“FBI”), National Security Division (“NSD”), and Office of Legal Counsel (“OLC”) are all components of the Department of Justice from which the ACLU has requested records.
17. Defendant Department of State (“DOS”) is a department of the executive branch of the U.S. government and is an agency within the meaning of 5 U.S.C. § 552(f)(1).
Facts The First Requests for Records 18. By letter dated May 13, 2013, Plaintiffs filed substantially similar FOIA requests with the CIA, DIA, NSA, FBI, NSD, OLC, and DOS (the “First Requests”). (True and correct copies of the First Requests are collectively annexed hereto as Exhibit A.) 19. Each of the ACLU’s First Requests sought, in substance: a. any records construing or interpreting the scope of Defendants’ authority to act under EO 12,333, and any regulations issued thereunder; b. any records describing the minimization procedures used by Defendants with regard to both intelligence collection and intelligence interception conducted pursuant to Defendants’ authority under EO 12,333 or any regulations issued thereunder; and c. any records describing the standards that must be satisfied for the “collection,” “acquisition,” or “interception” of communications, as Defendants define these terms, pursuant to authority under EO 12,333 or any regulations issued thereunder. 20. Plaintiffs also sought a waiver of search, review, and duplication fees because the
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requested records were not sought for commercial use, because the ACLU is a “representative of the news media” under 5 U.S.C. § 552(a)(4)(A)(ii)(II), and because the requested information is in the public interest as defined under 5 U.S.C. § 552(a)(4)(A)(iii).
Agency Responses 21. Four of the agencies—DIA, FBI, NSD, and DOS—acknowledged receipt of the First Request and indicated its placement in their FOIA processing queues, but provided no substantive response prior to the filing of this action. 22. By email dated June 28, 2013, the NSA memorialized an agreed-upon modification to the scope of Plaintiffs’ First Request, and by letter dated July 1, 2013, it disclosed two documents responsive to Plaintiffs’ First Request that were already publicly available. By email dated August 21, 2013, the NSA indicated that additional potentially responsive documents were to be posted on IContheRecord.tumblr.com, and indicated that a further response was forthcoming. By letter dated November 18, 2013, the NSA released two additional documents: a more recent version of U.S. Signals Intelligence Directive SP0018 than had been previously released and its annex, both with redactions. This letter also indicated that the review of additional documents responsive to the request was ongoing, though the NSA provided no further information prior to the filing of this action. (True and correct copies of these responses from the NSA are collectively annexed hereto as Exhibit B.) 23. By email and phone communications between June 25 and July 10, 2013, Plaintiffs and the OLC agreed upon a modification to the scope of Plaintiffs’ First Request, but the OLC did not release any responsive documents prior to the filing of this action. (True and correct copies of the communications between Plaintiffs and the OLC are collectively annexed hereto as Exhibit C.)
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24. By letter dated July 26, 2013, the CIA denied Plaintiffs’ First Request as requiring an “unreasonably burdensome search.” (A true and correct copy of this denial from the CIA is annexed hereto as Exhibit D.)
25. Five of the agencies—CIA, DIA, FBI, NSA, and OLC—communicated no decision in response to Plaintiffs’ requests for fee waivers or limitations of fees. Defendant DOS granted the fee waiver by letter dated June 5, 2013, as did NSD, by letter dated June 11, 2013.
Administrative Appeals 26. By letter dated November 1, 2013, Plaintiffs administratively appealed the CIA’s denial of their First Request. (A true and correct copy of this appeal is annexed hereto as Exhibit E.) 27. Having received no further responsive records, Plaintiffs administratively appealed the constructive denials of their First Requests by the DIA, NSA, FBI, NSD, OLC, and DOS by letter dated November 8, 2013. (True and correct copies of these constructive denial appeals are collectively annexed hereto as Exhibit F.) 28. The NSA, FBI, DOJ, and DOS acknowledged receipt of Plaintiffs’ administrative appeals. Plaintiffs received no determinations from any of the Defendants in connection with these appeals. 29. More than twenty working days have elapsed since Plaintiffs filed their administrative appeals of the Defendants’ constructive denials. Plaintiffs have therefore exhausted their administrative remedies. 30. Separately, by letter dated January 9, 2014, Plaintiffs timely appealed the NSA’s decision to redact the four documents it had released to date. That appeal concerned only the NSA’s decision to redact and not its failure to produce additional responsive records, which was
7

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the subject of the prior appeal filed on November 8, 2013. 31. By letter dated January 24, 2014, the NSA acknowledged that it received the
appeal on January 17, 2014. Plaintiffs have received no further response from the NSA in connection with this appeal. More than twenty working days have elapsed since the NSA received the appeal. Plaintiffs have therefore exhausted their administrative remedies.
The Second Request for NSD Records 32. On May 15, 2014, after the conclusion of the parties’ negotiations over the scope of each Defendant’s search, NSD responded by letter to Plaintiffs’ First Request and stated that it had no responsive records. 33. Shortly thereafter, on July 29, 2014, Plaintiffs filed a revised FOIA request with NSD (the “Second NSD Request”) (together, with Plaintiffs’ First Requests, the “Requests”). (A true and correct copy of the Second NSD Request is annexed hereto as Exhibit G.) 34. The Second NSD Request sought, in summary:
a. Formal regulations or policies, legal opinions, training materials or reference materials relating to any agency’s authority under EO 12,333 to undertake electronic surveillance that implicates U.S. persons.
b. Records that officially authorize or modify under EO 12,333 any agency’s use of specific programs, techniques, or types of electronic surveillance that implicate U.S. persons.
c. Formal reports relating to electronic surveillance under EO 12,333 implicating U.S. persons that contain any meaningful discussion of (1) any agency’s compliance, in undertaking such surveillance, with EO 12,333, its implementing regulations, the Foreign Intelligence Surveillance Act, or the Fourth
8

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Amendment; or (2) any agency’s interception, acquisition, scanning, or collection of the communications of U.S. persons, whether “incidental” or otherwise, in undertaking such surveillance. 35. The categories of documents sought in the Second NSD Request are similar in scope and substance to the categories that the parties negotiated in May 2014 as part of the search stipulation in this action. In keeping with that stipulation, NSA, CIA, DIA, FBI, and DOS have searched for and are currently processing documents within these categories. See Stipulation and Order Regarding Document Searches (May 9, 2014) (ECF No. 30) (so-ordering the parties’ agreement concerning the scope of the agencies’ searches). 36. Plaintiffs also sought a waiver of search, review, and duplication fees because the requested records were not sought for commercial use, because the ACLU is a “representative of the news media” under 5 U.S.C. § 552(a)(4)(A)(ii)(II), and because disclosure of the requested information is in the public interest, as defined under 5 U.S.C. § 552(a)(4)(A)(iii). 37. Additionally, Plaintiffs sought expedited processing because the ACLU is “primarily engaged in disseminating information” within the meaning of the FOIA statute and regulations, 5 U.S.C. § 552(a)(6)(E)(v)(II), 28 C.F.R. § 16.5(d)(1)(ii); and because the requested records relate 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 to a matter where there is “urgency to inform the public about an actual or alleged federal government activity.” 28 C.F.R. § 16.5(d)(1)(ii). 38. By letter dated September 2, 2014, NSD acknowledged receipt of the Second NSD Request and indicated its placement in the agency’s FOIA processing queue, but it provided no substantive response. The twenty-day statutory period for NSD to make a
9

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determination with respect to the Second NSD Request has elapsed with no determination. Plaintiffs have therefore constructively exhausted their administrative remedies. 5 U.S.C. § 552(a)(6)(C)(i).
Causes of Action 39. Defendants’ failure to timely respond to the Requests violates the FOIA, 5 U.S.C. § 552(a)(6)(A), and Defendants’ corresponding regulations. 40. Defendants’ failure to make promptly available the records sought by the Requests violates the FOIA, 5 U.S.C. § 552(a)(3)(A), and Defendants’ corresponding regulations. 41. Defendants’ wrongful withholdings of specific responsive records, or portions thereof, violates the FOIA, 5 U.S.C. § 552(a)(3)(A), (6)(A), and Defendants’ corresponding regulations. 42. Defendants’ failure to make a reasonable effort to search for records responsive to the Requests violates the FOIA, 5 U.S.C. § 552(a)(3)(C), and Defendants’ corresponding regulations. 43. The failure of CIA, DIA, NSA, FBI, and OLC to grant a public interest fee waiver for the First Request, and the failure of NSD to grant a public interest fee waiver for the Second NSD Request, violates the FOIA, 5 U.S.C. § 552(a)(4)(A)(iii), and Defendants’ corresponding regulations. 44. The failure of CIA, DIA, NSA, FBI, and OLC to grant a limitation of fees for the First Request, and the failure of NSD to grant a limitation of fees for the Second NSD Request, violates the FOIA, 5 U.S.C. § 552(a)(4)(A)(ii)(II), and Defendants’ corresponding regulations. 45. The failure of NSD to grant expedited processing for the Second NSD Request
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violates the FOIA, 5 U.S.C. § 552(a)(6)(E), and Defendant's corresponding regulations. Prayer for Relief
WHEREFORE, Plaintiffs respectfully request that this Court: 1. Order Defendants to conduct a thorough search for all responsive records; 2. Order Defendants to immediately process and release all records responsive to the Requests; 3. Enjoin Defendants from charging Plaintiffs search, review, or duplication fees for processing the Requests; 4. Award Plaintiffs their costs and reasonable attorney's fees incurred in this action; and 5. Grant such other relief as this Court deems just and proper.

Dated: October 30, 2014

Respectfully submitted,
~~~-
Patrick Toomey AlexAbdo AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10005 Phone: (212) 549-2500 Fax: (212) 549-2654
David A. Schulz Jonathan M. Manes Conor Clarke (law student intern) Nicholas Handler (law student intern) Ajay Ravichandran (law student intern) MEDIA FREEDOM AND INFORMATION ACCESS CLINIC, YALE LAW SCHOOL P.O. Bo£208215 New Haven, CT 06520 (212) 850-6103
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Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 12 of 112
American Civil Liberties Union v. National Security Agency No. 1:13-cv-09198-AT
Index of Exhibits to Plaintiffs’ Second Amended Complaint Exhibit Document
A Plaintiffs’ FOIA requests submitted to the CIA, DIA, NSA, FBI, NSD, OLC, and DOS on May 13, 2013
B Responses from the NSA to Plaintiffs’ FOIA request C Communications between Plaintiffs and the OLC in response to Plaintiffs’ FOIA
request D CIA’s denial of Plaintiffs’ FOIA request E Plaintiffs’ administrative appeal from the CIA’s denial of their FOIA request F Plaintiffs’ administrative appeals from the denials of their FOIA request by the
DIA, NSA, FBI, NSD, OLC, and DOS G Plaintiffs’ FOIA request submitted to NSD on July 29, 2014

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 13 of 112
Exhibit A

LEGAL DEPARTMENTCase 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 14 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


May 13, 2013
BY USPS MAIL
Information and Privacy Coordinator Central Intelligence Agency Washington, DC 20505
RE: FREEDOM OF INFORMATION ACT REQUEST
To Whom It May Concern:
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the “ACLU”) submit this request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Comp.) (“EO 12,333”). Specifically, we request the following records1:
1. Any records construing or interpreting the authority of the Central Intelligence Agency (“Agency”) under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the Agency with regard to both intelligence collection and intelligence interception conducted pursuant to the Agency’s authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the “collection,” “acquisition,” or “interception” of communications, as the Agency defines these terms, pursuant to the Agency’s authority under EO 12,333 or any regulations issued thereunder.

1

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 15 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a “representative of the news media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU’s mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a “representative of the news media” as an “entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf. Am. Civil Liberties Union v. Dep’t of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be “‘primarily engaged in disseminating information’”). Indeed, the ACLU recently was held to be a “representative of the news media.” Serv. Women’s Action Network v. Dep’t of Defense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep’t of Justice, No. C09–0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a “representative of the news media”), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it “is likely to contribute significantly to public understanding of the operations or activities of the government,” and (2) it “is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns “the operations or activities” of the Agency. E.O. 12,333 is “intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers.” EO 12,333 § 2.2. It authorizes the intelligence community, including the Agency, to collect intelligence, and it sets forth certain limitations on intelligence-gathering activities relevant to civil liberties. In its brief in a

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 16 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


recent case before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance of Americans’ foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will “contribute significantly to the public understanding” of the Agency’s operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333’s limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep’t of Def., DOD 5240 1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons § C2.3.12 (Dec. 1982); Nat’l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, U.S. Army Intelligence Procedures § 2-2(l) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 17 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


image quality in the agency’s possession, and in separate, Bates-stamped files.
We also request that you provide an estimated date on which you will finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

LEGAL DEPARTMENTCase 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 18 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


May 13, 2013
BY USPS MAIL
Margaret A. Bestrain, Chief, FOIA and Declassification Services Branch Defense Intelligence Agency U.S. Department of Defense ATTN: DAN-1A (FOIA) 200 MacDill Blvd. Washington, DC 20340-5100
RE: FREEDOM OF INFORMATION ACT REQUEST
Dear Ms. Bestrain,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the “ACLU”) submit this request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Comp.) (“EO 12,333”). Specifically, we request the following records1:
1. Any records construing or interpreting the authority of the Defense Intelligence Agency (“Agency”) under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the Agency with regard to both intelligence collection and intelligence interception conducted pursuant to the Agency’s authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the “collection,” “acquisition,” or “interception” of communications, as the Agency defines these terms, pursuant to the Agency’s authority under EO 12,333 or any regulations issued thereunder.

1

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 19 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a “representative of the news media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU’s mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a “representative of the news media” as an “entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf. Am. Civil Liberties Union v. Dep’t of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be “‘primarily engaged in disseminating information’”). Indeed, the ACLU recently was held to be a “representative of the news media.” Serv. Women’s Action Network v. Dep’t of Defense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep’t of Justice, No. C09–0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a “representative of the news media”), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it “is likely to contribute significantly to public understanding of the operations or activities of the government,” and (2) it “is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns “the operations or activities” of the Agency. E.O. 12,333 is “intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers.” EO 12,333 § 2.2. It authorizes the intelligence community, including the Agency, to collect intelligence, and it sets forth certain limitations on intelligence-gathering activities relevant to civil liberties. In its brief in a

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 20 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


recent case before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance of Americans’ foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will “contribute significantly to the public understanding” of the Agency’s operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333’s limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep’t of Def., DOD 5240 1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons § C2.3.12 (Dec. 1982); Nat’l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, U.S. Army Intelligence Procedures § 2-2(l) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 21 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


image quality in the agency’s possession, and in separate, Bates-stamped files.
We also request that you provide an estimated date on which you will finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

LEGAL DEPARTMENTCase 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 22 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


May 13, 2013
BY USPS MAIL
Attn: Cindy Blacker NSA FOIA Requester Service Center/DJ4 9800 Savage Road, Suite 6248 Ft. George G. Meade, MD 20744-6248
RE: FREEDOM OF INFORMATION ACT REQUEST
Dear Ms. Blacker,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the “ACLU”) submit this request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Comp.) (“EO 12,333”). Specifically, we request the following records1:
1. Any records construing or interpreting the authority of the National Security Agency (“Agency”) under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the Agency with regard to both intelligence collection and intelligence interception conducted pursuant to the Agency’s authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the “collection,” “acquisition,” or “interception” of communications, as the Agency defines these terms, pursuant to the Agency’s authority under EO 12,333 or any regulations issued thereunder.

1

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 23 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a “representative of the news media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU’s mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a “representative of the news media” as an “entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf. Am. Civil Liberties Union v. Dep’t of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be “‘primarily engaged in disseminating information’”). Indeed, the ACLU recently was held to be a “representative of the news media.” Serv. Women’s Action Network v. Dep’t of Defense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep’t of Justice, No. C09–0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a “representative of the news media”), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it “is likely to contribute significantly to public understanding of the operations or activities of the government,” and (2) it “is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns “the operations or activities” of the Agency. E.O. 12,333 is “intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers.” EO 12,333 § 2.2. It authorizes the intelligence community, including the Agency, to collect intelligence, and it sets forth certain limitations on intelligence-gathering activities relevant to civil liberties. In its brief in a

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 24 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


recent case before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance of Americans’ foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will “contribute significantly to the public understanding” of the Agency’s operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333’s limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep’t of Def., DOD 5240 1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons § C2.3.12 (Dec. 1982); Nat’l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, U.S. Army Intelligence Procedures § 2-2(l) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 25 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


electronically in a text-searchable, static-image format (PDF), in the best image quality in the agency’s possession, and in separate, Bates-stamped files.
We also request that you provide an estimated date on which you will finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

LEGAL DEPARTMENTCase 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 26 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


May 13, 2013
BY USPS MAIL
Federal Bureau of Investigation Attn: FOI/PA Request Record/Information Dissemination Section 170 Marcel Drive Winchester, VA 22602-4843
RE: FREEDOM OF INFORMATION ACT REQUEST
To Whom It May Concern:
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the “ACLU”) submit this request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Comp.) (“EO 12,333”). Specifically, we request the following records1:
1. Any records construing or interpreting the authority of the Federal Bureau of Investigation (“FBI”) under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the FBI with regard to both intelligence collection and intelligence interception conducted pursuant to the FBI’s authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the “collection,” “acquisition,” or “interception” of communications, as the FBI defines these terms, pursuant to the FBI’s authority under EO 12,333 or any regulations issued thereunder.

1

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 27 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a “representative of the news media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU’s mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a “representative of the news media” as an “entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf. Am. Civil Liberties Union v. Dep’t of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be “‘primarily engaged in disseminating information’”). Indeed, the ACLU recently was held to be a “representative of the news media.” Serv. Women’s Action Network v. Dep’t of Defense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep’t of Justice, No. C09–0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a “representative of the news media”), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it “is likely to contribute significantly to public understanding of the operations or activities of the government,” and (2) it “is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns “the operations or activities” of the FBI. E.O. 12,333 is “intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers.” EO 12,333 § 2.2. It authorizes the intelligence community, including the FBI, to collect intelligence, and it sets forth certain limitations on intelligencegathering activities relevant to civil liberties. In its brief in a recent case

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 28 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance of Americans’ foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will “contribute significantly to the public understanding” of the FBI’s operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333’s limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep’t of Def., DOD 5240 1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons § C2.3.12 (Dec. 1982); Nat’l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, U.S. Army Intelligence Procedures § 2-2(l) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best image quality in the agency’s possession, and in separate, Bates-stamped files.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 29 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


We also request that you provide an estimated date on which you will finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

LEGAL DEPARTMENTCase 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 30 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


May 13, 2013
BY USPS MAIL
Arnetta Mallory, FOIA Initiatives Coordinator National Security Division U.S. Department of Justice 950 Pennsylvania Avenue, NW Room 6150 Washington, DC 20530-0001
RE: FREEDOM OF INFORMATION ACT REQUEST
Dear Ms. Mallory,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the “ACLU”) submit this request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Comp.) (“EO 12,333”). Specifically, we request the following records1:
1. Any records construing or interpreting the authority of the National Security Division (“NSD”) under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the NSD with regard to both intelligence collection and intelligence interception conducted pursuant to the NSD’s authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the “collection,” “acquisition,” or “interception” of communications, as the NSD defines these terms, pursuant to the NSD’s authority under EO 12,333 or any regulations issued thereunder.

1

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 31 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a “representative of the news media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU’s mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a “representative of the news media” as an “entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf. Am. Civil Liberties Union v. Dep’t of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be “‘primarily engaged in disseminating information’”). Indeed, the ACLU recently was held to be a “representative of the news media.” Serv. Women’s Action Network v. Dep’t of Defense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep’t of Justice, No. C09–0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a “representative of the news media”), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it “is likely to contribute significantly to public understanding of the operations or activities of the government,” and (2) it “is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns “the operations or activities” of the NSD. E.O. 12,333 is “intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers.” EO 12,333 § 2.2. It authorizes the intelligence community, including the NSD, to collect intelligence, and it sets forth certain limitations on intelligencegathering activities relevant to civil liberties. In its brief in a recent case

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 32 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance of Americans’ foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will “contribute significantly to the public understanding” of the NSD’s operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333’s limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep’t of Def., DOD 5240 1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons § C2.3.12 (Dec. 1982); Nat’l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, U.S. Army Intelligence Procedures § 2-2(l) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best image quality in the agency’s possession, and in separate, Bates-stamped files.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 33 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


We also request that you provide an estimated date on which you will finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

LEGAL DEPARTMENTCase 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 34 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


May 13, 2013
BY USPS MAIL
Elizabeth Farris, Supervisory Paralegal Office of Legal Counsel Room 5515, 950 Pennsylvania Avenue, NW Department of Justice Washington, DC 20530-0001
RE: FREEDOM OF INFORMATION ACT REQUEST
Dear Ms. Farris,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the “ACLU”) submit this request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Comp.) (“EO 12,333”). Specifically, we request the following records1:
1. Any records in which the Office of Legal Counsel (“OLC”) construes or interprets the authority of the Department of Justice (“DOJ”) or any executive agencies under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the government with regard to both intelligence collection and intelligence interception conducted pursuant to EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the “collection,” “acquisition,” or “interception” of communications, as those terms are defined in EO 12,333 or any regulations issued thereunder.

1

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 35 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a “representative of the news media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU’s mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a “representative of the news media” as an “entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf. Am. Civil Liberties Union v. Dep’t of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be “‘primarily engaged in disseminating information’”). Indeed, the ACLU recently was held to be a “representative of the news media.” Serv. Women’s Action Network v. Dep’t of Defense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep’t of Justice, No. C09–0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a “representative of the news media”), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it “is likely to contribute significantly to public understanding of the operations or activities of the government,” and (2) it “is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns “the operations or activities” of the OLC. E.O. 12,333 is “intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers.” EO 12,333 § 2.2. It authorizes the intelligence community, including the OLC, to collect intelligence, and it sets forth certain limitations on intelligencegathering activities relevant to civil liberties. In its brief in a recent case

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 36 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance of Americans’ foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will “contribute significantly to the public understanding” of the intelligence community’s operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333’s limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep’t of Def., DOD 5240 1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons § C2.3.12 (Dec. 1982); Nat’l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, U.S. Army Intelligence Procedures § 2-2(l) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best image quality in the agency’s possession, and in separate, Bates-stamped files.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 37 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


We also request that you provide an estimated date on which you will finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

LEGAL DEPARTMENTCase 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 38 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


May 13, 2013
BY USPS MAIL
Office of Informational Programs and Services A/GIS/IPS/RL Department of State, SA-2 Washington, DC 20522-8100
RE: FREEDOM OF INFORMATION ACT REQUEST
To Whom It May Concern:
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the “ACLU”) submit this request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Comp.) (“EO 12,333”). Specifically, we request the following records1:
1. Any records construing or interpreting the authority of the United States Department of State (“Department”) under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the Department with regard to both intelligence collection and intelligence interception conducted pursuant to the Department’s authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the “collection,” “acquisition,” or “interception” of communications, as the Department defines these terms, pursuant to the Department’s authority under EO 12,333 or any regulations issued thereunder.

1

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 39 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a “representative of the news media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU’s mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a “representative of the news media” as an “entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf. Am. Civil Liberties Union v. Dep’t of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be “‘primarily engaged in disseminating information’”). Indeed, the ACLU recently was held to be a “representative of the news media.” Serv. Women’s Action Network v. Dep’t of Defense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep’t of Justice, No. C09–0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a “representative of the news media”), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it “is likely to contribute significantly to public understanding of the operations or activities of the government,” and (2) it “is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns “the operations or activities” of the Department. E.O. 12,333 is “intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers.” EO 12,333 § 2.2. It authorizes the intelligence community, including the Department, to collect intelligence, and it sets forth certain limitations on intelligence-gathering activities relevant to civil liberties. In its brief in a

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 40 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


recent case before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance of Americans’ foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will “contribute significantly to the public understanding” of the Department’s operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int’l USA, No. 11-1025, 2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333’s limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep’t of Def., DOD 5240 1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons § C2.3.12 (Dec. 1982); Nat’l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, U.S. Army Intelligence Procedures § 2-2(l) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 41 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONALOFFICE 125BROADSTREET, 18THFL. NEWYORK,NY10004Ǧ2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT

ANTHONYD.ROMERO EXECUTIVE DIRECTOR


image quality in the agency’s possession, and in separate, Bates-stamped files.
We also request that you provide an estimated date on which you will finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 42 of 112
Exhibit B

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 43 of 112
"Phillips, Pamela" <pnphill@nsa.gov> NSA FOIA Clariﬁcation June 28, 2013 10:29 AM
Mr.$Abdo, $ $$$$$$$$Thank$you$for$speaking$to$me$this$morning$about$your$FOIA$request$and$helping$us$to$scope$it$into$a$manageable$search.$$We$will$continue$to work$with$the$organizations$conducting$the$searches,$and$if$we$need$any$additional$information$to$further$clarify$as$we$proceed,$I$will$give$you another$call$or$email$you.$$For$the$record,$here$is$what$we$decided$about$your$request$today: $ Case$70809$–$for$records$construing$or$interpreting$the$authority$of$NSA$under$O.E.$12333;$records$describing$the$minimization$procedures$used$by the$Agency;$records$describing$the$standards$that$must$be$satisfied$for$collection,$acquisition,$or$interception$of$communications $ You$agreed$to$limit$the$request$to$formally$issued$guidance$(of$which$I$mentioned$various$types,$such$as$DoD$Directions,$NSA$USSID,$NSA$Policies, various$issuances$relating$to$FISA,$compliance$training,$and$advisories).$$You$agreed$to$omit$guidance$that$simply$reiterates$or$includes$pieces$and excerpts$from$the$formal$guidance.$$You$also$agreed$that$you$are$not$seeking$emails.$$Finally,$you$indicated$that$you$would$want$any$separate$legal opinions$that$interpret$the$standards$or$define$terms$collection,$acquisition,$or$interception$to$the$extent$that$that$opinion/interpretation$is$not included$in$the$formal$guidance. $ $$$$$$$$Please$let$me$know$if$I$have$mischaracterized$or$misunderstood$our$conversation$in$any$way.$$You$will$be$receiving$a$formal$interim$response from$us$soon$with$two$previously$released$documents.$$Thanks$again. $ $$$$$$$$Pamela $ Pamela N. Phillips$ Chief, FOIA/PA Office (DJ4)$ FOIA Public Liaison Officer$ National Security Agency$ (301) 688-6527$ pnphill@nsa.gov$ $ $ $

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 44 of 112
NATIONAL SECURITY AGENCY CENTRAL SECURITY SERVICE
FORT GEORGE G. MEADE, MARYLAND 20755-6000
FOIA Case: 70809 1 July 2013
American Civil Liberties Union ATIN: Mr. Alexander Abdo National Office 125 Broad Street, 18th Fl. New York, NY 10004-2400
Dear Mr. Abdo:
This is an initial response to your Freedom of Information Act (FOIA) request dated 13 May 2013, which was received by this office on 30 May 2013, for access to documents relating to Executive Order 12333, 3 C.F.R. 200, specially the following records:
1. Any records construing or interpreting the authority of the National Security Agency ("Agency") under Executive 12333 or any regulations issues thereunder;
2. Any records describing the minimization procedures used by the Agency with regard to both intelligence collection and intelligence interception conducted pursuant to the Agency's authority under EO 12333 or any regulations ussued thereunder; and
3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as the Agency defines these terms, pursuant to the Agency's authority under EO 12333 or any regulations issued thereunder.
In a telephone conversation on 28 June 2013, you agreed to narrow your request to allow us to process it more quickly and to avoid search fees, since we have already begun processing several requests for similar information. You agree to limit your request (as relates to the above three items) to formally issued guidance, omiting emails and omiting guidance that reiterates or includes excerpts from the formal guidance. In addition, you indicated that you still desire any separate legal opinions that interpret the

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 45 of 112
FOIA Case: 70809
standards or define the terms in item 3 above, to the extent that it is not included in the formal guidance.
Your request has been assigned Case Number 70809. This letter indicates that we have begun to process your request. There is certain information relating to this processing about which the FOIA and applicable Department of Defense (DoD) and NSA/CSS regulations require we inform you. For purposes of this request, you are considered an "all other" requester. However, as we already indicated, the search is being conducted in response to other requests, so there will be no search fees assessed for this request. In addition, we do not plan to charge the duplication fees for the responsive material for any of the requesters. Therefore, we have not addressed your request for a waiver of fees.
With this response, we enclose two documents (USSID 18 and NSA/CSS Policy 1-23, 81 pages in total) that were previously released under the FOIA. We are continuing our search for responsive materials and will contact you again as information becomes available.
Correspondence related to your request should include the case number assigned to your request, which is included in the first paragraph of this letter. Your letter should be addressed to National Security Agency, FOIA Office (DJ4), 9800 Savage Road STE 6248, Ft. George G. Meade, MD 20755-6248 or may be sent by facsimile to 443-479-3612. If sent by fax, it should be marked for the attention of the FOIA office. The telephone number of the FOIA office is 301-688-6527.
Sincerely,

Encls: a/s

PAMELA N. PHILLIPS Chief
FOIA/PA Office

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 46 of 112
"Phillips, Pamela" <pnphill@nsa.gov> NSA FOIA 70809 August 21, 2013 4:40 PM
Mr.$Abdo, $$$$$$$$You$may$already$be$already$aware,$but$my$understanding$is$that$the$ODNI$is$going$to$post$several$documents$this$afternoon$related$to$Section 702$were$released$today$in$a$FOIA$litigation$case,$some$of$which$may$also$be$responsive$to$your$FOIA$request$to$this$agency$for$minimization procedures.$$They$are$to$be$posted$to$the$ODNI$website,$and$then$later$to$the$IContheRecord.tumblr.com$website.$$We$are$continuing$the$processing of$your$request$to$this$Agency$and$will$respond$further$when$documents$are$complete. $$$$$$$$Pamela $ $ Pamela N. Phillips$ Chief, FOIA/PA Office (DJ4)$ FOIA Public Liaison Officer$ National Security Agency$ (240) 373-1434$ pnphill@nsa.gov$
pnphill@nsa.smil.mil
$ $ $

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 47 of 112
NATIONAL SECURITY AGENCY CENTRAL SECURITY SERVICE
FORT GEORGE G. MEADE, MARYLAND 20755-6000
FOIA Case: 70809A 18 November 2013
American Civil Liberties Union ATTN: Mr. Alexander Abdo National Office 125 Broad Street, 18th Fl. New York, NY 10004-2400
Dear Mr. Abdo:
This further responds to your Freedom of Information Act (FOIA) request dated 13 May 2013 for access to documents relating to Executive Order (EO) 12333, 3 C.F.R. 200, specifically the following records:
1. Any records construing or interpreting the authority of the National Security Agency ("Agency") under EO 12333 or any regulations issues thereunder;
2. Any records describing the minimization procedures used by the Agency with regard to both intelligence collection and intelligence interception conducted pursuant to the Agency's authority under EO 12333 or any regulations ussued thereunder; and
3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as the Agency defines these terms, pursuant to the Agency's authority under EO 12333 or any regulations issued thereunder.
You agreed to narrow your request (as relates to the above three items) to formally issued guidance, omitting emails and omitting guidance that reiterates or includes excerpts from the formal guidance. In addition, you indicated that you still desire any separate legal opinions that interpret the standards or define the terms in item 3 above, to the extent that it is not included in the formal guidance.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 48 of 112
FOIA Case: 70809A
Two additional documents responsive to your request (USSID SP0018 and Annex J) have been processed under the FOIA and are enclosed. Certain information, however, has been deleted from the enclosures.
Some of the information deleted from the documents was found to be currently and properly classified in accordance with Executive Order 13526. This information meets the criteria for classification as set forth in Subparagraphs (c) and/ or (d) of Section 1.4 and remains classified SECRET as provided in Section 1.2 of the Executive Order. The information is classified because its disclosure could reasonably be expected to cause serious damage to the national security. Because the information is currently and properly classified, it is exempt from disclosure pursuant to the first exemption of the FOIA (5 U.S.C. Section 552(b)(1)).
In addition, this Agency is authorized by various statutes to protect certain information concerning its activities. We have determined that such information exists in these documents. Accordingly, those portions are exempt from disclosure pursuant to the third exemption of the FOIA which provides for the withholding of information specifically protected from disclosure by statute. The specific statutes applicable in this case are Title 18 U.S. Code 798; Title 50 U.S. Code 3024(i) (formerly Title 50 U.S. Code 403-1(i)); and Section 6, Public Law 86-36 (50 U.S. Code 3605, formerly 50 U.S. Code 402 note).
The Initial Denial Authority for NSA information is the Associate Director for Policy and Records, David J. Sherman. Since these deletions may be construed as a partial denial of your request, you are hereby advised of this Agency's appeal procedures. Any person denied access to information may file an appeal to the NSA/CSS Freedom of Information Act Appeal Authority. The appeal must be postmarked no later than 60 calendar days from the date of the initial denial letter. The appeal shall be in writing addressed to the NSA/CSS FOIA Appeal Authority (DJ4), National Security Agency, 9800 Savage Road STE 6248, Fort George G. Meade, MD 20755-6248. The appeal shall reference the initial denial of access and shall contain, in sufficient detail and particularity, the grounds upon which the requester believes release of the information is required. The NSA/ CSS Appeal Authority will endeavor to respond to the appeal within 20 working days after receipt, absent any unusual circumstances.
The State Department has also asked that we protect information pursuant to 5 U.S.C. 552(b)(1). We will coordinate any appeal of the denial of that information with the State Department.
--~---

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 49 of 112
FOIA Case: 70809A
Review of additional documents responsive to your request continues; they will be provided to you as they are completed. In addition, documents related to NSA collection activities and procedures continue to be released in litigation on behalf of the Intelligence Community (IC) by the Office of the Director of National Intelligence (ODNI). You will find those documents posted on the ODNI web page, as well as on ICon the Record (IContheRecord. tumblr .com).
Sincerely,

Ends: afs

PAMELA N. PHILLIPS Chief
FOIA/PA Office

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 50 of 112
Exhibit C

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 51 of 112

Alexander Abdo National Security Project ACLU 125 Broad St. 18th Fl.
New York NY 10004-2400

U.S. Department of Justice Office of Legal Counsel Washington, D.C. 20530 June 25, 2013

Re: FOIA Tracking No. FY13-051
Dear Mr. Abdo:
This letter acknowledges receipt of your Freedom oflnformation Act ("FOIA") request to the Office of Legal Counsel ("OLC"), dated May 13, 2013. We received your request on May 29,2013, and assigned it FOIA tracking number FY13-051.
We have not yet made a decision on your request for a fee waiver. We will do so after we determine whether fees will be assessed for this request.
Finally, pursuant to your conversation with my colleague David Lehn on June 20, 2013, we propose that your request be revised as follows:
1) All OLC final legal advice concerning the scope and application of the authority of the United States Government to conduct electronic surveillance of the communications of United States persons pursuant to Executive Order 12333 or its implementing regulations, regardless of whether the United States person is the target of the electronic surveillance or is in the United States at the time of the electronic surveillance, except to the extent that the electronic surveillance is conducted pursuant to the Foreign Intelligence Surveillance Act. For purposes of this request, "electronic surveillance" and "United States person" have the meaning given in Executive Order 12333.
2) All OLC final legal advice concerning the meaning ofthe terms "collection", "acquisition", and "interception" as applied to electronic surveillance conducted pursuant to Executive Order 12333 or its implementing regulations. For purposes of this request, "electronic surveillance" has the meaning given in Executive Order 12333.
Please let us know whether you agree to this proposal, so that the processing of your request may proceed, consistent with its position in OLC's FOIA queue. To do so, or to discuss any other aspect of your request, you may contact Elizabeth Farris, our Supervisory Paralegal and FOIA contact, at usdoj-officeoflegalcounsel@usdoj.gov, (202) 514-2038, or Office of Legal

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 52 of 112 Counsel, United States Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, DC 20530.
Sincerely, Paul P. Colborn Special Counsel
2

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 53 of 112
"Lehn, David (OLC)" <David.Lehn@usdoj.gov> RE: OLC FOIA Request 13-051 July 10, 2013 12:34 PM
Great&'&thanks,&Alex. &
From: Alexander Abdo [mailto:aabdo@aclu.org] Sent: Wednesday, July 10, 2013 12:23 PM To: Lehn, David (OLC) Subject: RE: OLC FOIA Request 13-051
David, this looks great. Thanks so much.
From: Lehn, David (OLC) [mailto:David.Lehn@usdoj.gov] Sent: Monday, July 08, 2013 3:27 PM To: Alexander Abdo Subject: RE: OLC FOIA Request 13-051
Hi,&Alex.&Thanks&for&getting&back&to&me.&I&carved&out&FISA&in&light&of&my&understanding&of&what&you&were&seeking&based&on&our&conversation.&&But&we can&eliminate&the&carve'out&given&that&the&application&of&EO&12333&to&elsur&under&FISA&is&fairly&within&the&scope&of&your&original&request.&So,&how about&this? & 1) All OLC final legal advice concerning Executive Order 12333 or its implementing regulations with respect to electronic surveillance
by the United States Government of communications of United States persons, regardless of whether the United States person is the target of the electronic surveillance or is in the United States at the time of the electronic surveillance. For purposes of this request, "electronic surveillance" and "United States person" have the meaning given in Executive Order 12333. 2) All OLC final legal advice concerning the meaning of the terms "collection", "acquisition", and "interception" as used in Executive Order 12333 or its implementing regulations with respect to electronic surveillance by the United States Government of communications of United States persons. For purposes of this request, "electronic surveillance" has the meaning given in Executive Order 12333. & &
From: Alexander Abdo [mailto:aabdo@aclu.org] Sent: Saturday, June 29, 2013 1:18 PM To: Lehn, David (OLC) Subject: Re: OLC FOIA Request 13-051
David,
Thanks so much for memorializing this. I have a few modifications I'd like to make, just to make sure the request is targeted at what we're interested in.
In the first bullet point, can we change "pursuant to Executive Order 12,333" to "governed by Executive Order 12,333," and can we delete the phrase "except to the extent that the electronic surveillance is conducted pursuant to the Foreign Intelligence Surveillance Act"? My understanding is that the executive order often imposes additional requirements on surveillance conducted pursuant to other authorities (such as FISA or the FISA Amendments Act). I think the language you proposed would cover those situations as well, but I just want to make sure it's clear.
For the same reason and in the second bullet point, can we change "pursuant to" to "governed by"?
Thanks so much,
Alex
On Jun 25, 2013, at 3:42 PM, "Lehn, David (OLC)" <David.Lehn@usdoj.gov> wrote:
Alex,&following&up&on&our&call&last&week,&please&see&the&attached&letter.&Notwithstanding&what&the&letter&says,&you&can&respond&directly&to&me.&Thanks & & & & ____________________

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 54 of 112
David&Lehn Attorney'Adviser Office&of&Legal&Counsel U.S.&Department&of&Justice 202'514'5572 & & &
<13-051 ack 2013-06-25.pdf>

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 55 of 112
Exhibit D

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 56 of 112
Central futelligence Agency

Washington, D.C. 20505
Mr. Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004-2400

26 July 2013

Reference: F-2013-01775

Dear Mr. Abdo:

This is a final response to your 13 May 2013 Freedom of Information Act (FOIA) request, submitted on behalf of the American Civil Liberties Union, received in the office of the Information and Privacy Coordinator on 23 May 2013, for:

1. Any records construing or interpreting the authority of the Central Intelligence Agency ("Agency'') under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures used by the Agency with regard to both intelligence collection and intelligence interception conducted pursuant to the Agency's authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as the agency defines these terms, pursuant to the Agency's authority under EO 12,333 or any regulations issued thereunder.

We cannot accept your FOIA request in its current form because it would require the Agency to perform an unreasonably burdensome search. The FOIArequires · requesters to· "reasonably describe" the information they seek so that professional employees familiar with the subject matter can locate responsive information with a reasonable amount of effort. Commonly this equates to a requirement that the documents must be locatable through the indexing of our various systems. Extremely broad or vague requests or requests requiring research do not satisfy this requirement.

Sincerely,
./(~~
Michele Meeks Information and Privacy Coordinator

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 57 of 112
Exhibit E

Case 1:13-cv-09198-AT Document 44

NATIONAL SECURITY PROJECT

ACL.lJ I AMERICAN CIVIL LIBERTIES UNION

Filed 10/31/14

Page 58 of 112

November 1, 2013

BY USPS MAIL

Agency Release Panel (ARP) c/o Coordinator Information and Privacy Coordinator Central Intelligence Agency (CIA) Washington, DC 20505

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004-2400 T/212.549.2500 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

Re: FREEDOM OF INFORMATION ACT APPEAL- NO. F-2013-01775
Dear Panelists:
The American Civil Liberties Union and the American Civil Liberties Foundation (collectively "ACLU") write to appeal from the response ofthe Central Intelligence Agency ("CIA") to FOIA Request No. F-2013-01775, in which the ACLU seeks the following records:
1. Any records construing or interpreting the authority of the Central Intelligence Agency ("Agency") under Executive Order 12,333 or any regulations issued thereunder;

2. Any records describing the minimization procedures used by the Agency with regard to both intelligence collection and intelligence interception conducted pursuant to the Agency's authority under EO 12,333 or any regulations issued thereunder; and

3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as the Agency defines these terms, pursuant to the Agency's authority under EO 12,333 or any regulations issued thereunder. See FOIA Request ofMay 13, 2013 ("Request") (Exhibit 1, attached).

In a letter dated July 26, 2013 ("Response Letter") (Exhibit 2, attached), Information and Privacy Coordinator Michele Meeks of the CIA denied the ACLU's Request in its entirety stating, that "The FOIA requires requesters to 'reasonably describe' the information they seek so that professional employees [sic] can locate responsive documents with a reasonable amount of effort. Commonly this equates to a requirement that the documents must be locatable through the indexing of our various systems."

* ~::.:>

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 59 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

The CIA's denial of the ACLU's Request was premised entirely on its determination that the records sought exceed what is required by the FOIAi.e., that the Request is "extremely broad or vague" and "would require the Agency to perform an unreasonably burdensome search." See Response Letter. This determination is inaccurate and without basis.
The Request is specific in what it seeks. The second and third paragraphs ofthe request seek discrete categories of records: those describing the Agency's minimization procedures under EO 12,333 and those articulating the standards that the Agency must satisfy before collecting, acquiring, or intercepting communications under EO 12,333. The first paragraph of the request, though comprehensive, nonetheless specifies a discrete category of records for processing: those construing or interpreting the Agency's authority under EO 12,333. Although the ACLU is not in a position to be more specific without additional information from the Agency, the first paragraph of the request includes, at a minimum, rules, policies, or legal opinions describing the Agency's authority to conduct-or analyze, use, retain, and disseminate the fruits of-electronic surveillance under EO 12,333.
These specific categories of documents must be processed by the CIA under FOIA. Indeed, at least four other government agencies-the United States Air Force, the Department ofthe Army, the Department of Homeland Security, and the National Security Agency-have already processed and produced documents in response to identical FOIA requests. In addition, at least three other government agencies-the Department of State, the Department of the Army, and the Department of Justice National Security Division-have already granted fee waivers to the ACLU with respect to identical FOIA requests.
For the reasons stated above, the CIA's determination to deny the Request was erroneous and should be reversed.
Sincerely,

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 60 of 112
Exhibit 1

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 61 of 112

LEGAL DEPARTMENT

I AMERICAN CIVIL UBERTIES UNION

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONAL OFFICE 125 BIWAD STREET, 18TH FL. NEW YORK, NY lOQ04·2400 T/212.549·2500 F/>1.2.549·2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

May 13,2013
BY USPS MAIL
Information and Privacy Coordinator Central Intelligence Agency Washington, DC 20505
RE: FREEDOM OF INFORMATION ACT REQUEST
To Whom It May Concern:
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") submit this request under the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.P.R. 200 (1981 Comp.) ("EO 12,333"). Specifically, we request the following records 1:
1. Any records construing or interpreting the authority of the Central Intelligence Agency ("Agency") under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the Agency with regard to both intelligence collection and intelligence interception conducted pursuant to the Agency's authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as the Agency defines these terms, pursuant to the Agency's authority under EO 12,333 or any regulations issued thereunder.

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 62 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE
125 BROAD STREET, 18TH FL. NEW YORK, NY 10004·2400 T /212. 549· 2500 F/212.549·2651 WWW.ACI..U.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a "representative ofthe news media." 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU's mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a "representative of the news media" as an "entity that gathers information of potential interest to a segment of the public, uses its editorial skills to tum the raw materials into a distinct work, and distributes that work to an audience." 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat'! Sec. Archive v. Dep 't ofDef, 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf Am. Civil Liberties Union v. Dep'tofJustice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be "'primarily engaged in disseminating information"'). Indeed, the ACLU recently was held to be a "representative of the news media." Serv. Women's Action Network v. Dep 't ofDefense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep't ofJustice, No. C09-0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a "representative of the news media"), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure ofthe requested information is in the public interest because: (1) it "is likely to contribute significantly to public understanding ofthe operations or activities of the government," and (2) it "is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns "the operations or activities" of the Agency. E.O. 12,333 is "intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers." EO 12,333 § 2.2. It authorizes the intelligence community, including the Agency, to collect intelligence, and it sets forth certain limitations on intelligence-gathering activities relevant to civil liberties. In its brief in a

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 63 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YOilK, NY 1ooo4->4oo T/212.549·2500 F/211.549·2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

recent case before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance of Americans' foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int'l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course ofthat surveillance, are matters of great significance.
Moreover, the requested materials will "contribute significantly to the public understanding" of the Agency's operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int'l USA, No. 11-1025,2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333's limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep't of Def., DOD 5240 1-R, Procedures Governing the Activities ofDOD Intelligence Components that Affect United States Persons§ C2.3.12 (Dec. 1982); Nat'l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, US. Army Intelligence Procedures § 2-2(1) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the US.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 64 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONAL OFFICE 115 BROAD STREET, 18TH FL. NEW YORKI NY 10004~21t00 T /21>. 549· 2500 F/212.549·>651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

image quality in the agency's possession, and in separate, Bates-stamped files.
We also request that you provide an estimated date on which you will
finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 65 of 112
Exhibit 2

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 66 of 112
Central Intelligence Agency

Washington, D.C. 20505

Mr. Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004-2400

26 July 2013

Reference: F-2013-01775

Dear Mr. Abdo:

This is a final response to your 13 May 2013 Freedom of Information Act (FOIA) request, submitted on behalf of the Amencan Civil Liberties Union, received in the office · of the Information and Privacy Coordinator on 23 May 2013, for:

1. Any records construing or interpreting the authority ofthe Central Intelligence

Agency ("Agency") under Executive Order 12,333 or any regulations issued

thereunder;

2. Any records describing the minimization procedures used by the Agency with

regard to both intelligence collection and intelligence interception conducted

pursuant to the Agency's authority under EO 12,333 or any regulations issued

thereunder; and

·

3. Any records describing the standards that must be satisfied for the

"collection," "acquisition," or "interception" of communications, as the

agency defines these terms, pursuant to the Agency's authority under EO .

12,333 or any regulations issued thereunder.

We cannot accept your FOIA request in its current form because it would require the Agency to perfortn an :unreasonably burden.some·search. The FOIA requires· requesters to "reasonably describe" the information they seek so that professional employees familiar with the subject matter can locate responsive information with a reasonable amount of effort. Commonly this equates to a requirement that the documents must be locatable through the indexing of our various systems. Extremely broad or vague requests or requests requiring research do not satisfy this requirement.

Sincerely,
/(~~
Michele Meeks Information and Priva~y Coordinator

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 67 of 112
Exhibit F

Case 1:13-cv-09198-AT Document 44

NATIONAL SECURITY PROJECT

I AMERICAN CIVIL LIBERTIES UNION

Filed 10/31/14

Page 68 of 112

November 8, 2013

BY UPS

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004-2400 T/212.549.2500 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

Defense Intelligence Agency ATTN: DAN-IA (FOIA) 200 MacDill Blvd Washington, DC 20340-5100
RE: FREEDOM OF INFORMATION ACT APPEAL
Dear Sir or Madam,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") write to appeal from the constructive denial oftheir Freedom of Information Act request, submitted on May 13, 2013, for documents relating to Executive Order 12,333, "3 C.F.R. 200 (1981 Comp.) ("EO 12,333"). A copy of the request is attached here for reference. The ACLU received an acknowledgement of receipt dated June 6, 2013 in a letter signed by Alesia Y. Williams. The request was assigned the following identification number: F-2013-09022.

Under the Freedom of Information Act, determinations about whether an agency will produce documents must be made within 20 business days. See 5 U.S.C. § 552(a)(6)(A)(i); 28 C.F.R. § 16.6(b). Where an agency cannot meet the statutory time limit due to unusual circumstances, the agency may extend the time limit by ten working days with written notice to the requester. 5. U.S.C. § 552(a)(6)(B). An agency denying a request in any respect must send the requester a signed letter including, among other things, a brief statement of the reasons for denial. 5 U.S.C. § 552(a)(6)(A)(i).

Because the twenty-day statutory time and the ten-day extension have elapsed without a substantive response, the Defense Intelligence Agency has constructively failed to meet its legal obligation to disclose the information requested. By this appeal, we ask you to direct the timely disclosure of all records responsive to our request.

~:::- @

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 69 of 112
We thank you for your consideration of this appeal. Pursuant to 5 U.S.C. § 552(a)(6)(A)(ii), we expect a response regarding this appeal within twenty days. If you have any questions or concerns, please do not hesitate to contact me at the email address or telephone number indicated below.
Sincerely,

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 70 of 112

LEGAL DEPARTMENT

I AMERICAN CIVIL LIBERTIES UNION

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONAL OFFICE l>5 BROAD STRE:ET, 18TH FL. NEW YORK, NY l0004·>400 T/212.549·2.500 F/21>.549·>65' WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

May 13,2013
BY USPS MAIL
Margaret A. Bestrain, Chief, FOIA and Decl~itssification Services Branch Defense Intelligence Agency U.S. Department of Defense ATTN: DAN-IA (FOIA) 200 MacDill Blvd. Washington, DC 20340-5100
RE: FREEDOM OF INFORMATION ACT REQUEST
Dear Ms. Bestrain,
The American Civil Liberties Unio·n and the American Civil Liberties Union Foundation (together, the "ACLU") submit this request under the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.P.R. 200 (1981 Comp.) ("EO 12,333"). Specifically, we request the following records1:
1. Any records construing or interpreting the authority of the Defense Intelligence Agency ("Agency") under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the Agency with regard to both intelligence collection and intelligence interception conducted pursuant to the Agency's authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as the Agency defines these terms, pursuant to the Agency's authority under EO 12,333 or any regulations issued thereunder.

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 71 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAl.. OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004-2400
Tt:a:~.2.st~9·25oo
F/21.2.549·2651 WWW.ACLlJ.ORCi
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a "representative of the news media." 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU's mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a "representative of the news media" as an "entity that gathers information of potential interest to a segment of the public, uses its editorial skills to tum the raw materials into a distinct work, and distributes that work to an audience." 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat'/ Sec. Archive v. Dep 't ofDef, 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf Am. Civil Liberties Union v. Dep't ofJustice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be '"primarily engaged in disseminating information"'). Indeed, the ACLU recently was held to be a "representative of the news media." Serv. Women's Action Network v. Dep 't ofDefense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep 't ofJustice, No. C09-0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a "representative of the news media"), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure ofthe requested information is in the public interest because: (1) it "is likely to contribute significantly to public understanding ofthe operations or activities ofthe government," and (2) it "is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns "the operations or activities" of the Agency. E.O. 12,333 is "intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers." EO 12,333 § 2.2. It authorizes the intelligence community, including the Agency, to collect intelligence, and it sets forth certain limitations on intelligence-gathering activities relevant to civil liberties. In its brief in a

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 72 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE
ns BROAD STREET,
18TH FL. NEW VOI~K, NY lOOOL~~.lftOO 'T /l.ll. 549· 2500 F/21.2.549·265:1 WWW.ACL.U.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

recent case before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance of Americans' foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int 'l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose . communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will "contribute significantly to the public understanding" of the Agency's operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int'l USA, No. 11-1025,2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333 's limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep't ofDef., DOD 5240 1-R, Procedures Governing the Activities ofDOD Intelligence Components that Affect United States Persons§ C2.3.12 (Dec. 1982); Nat'l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, US Army Intelligence Procedures § 2-2(1) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the USA. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 73 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YOI~K, NY 10004·>400 T/>1>.54·9·2500 F/212.549•>651 WWW.AClU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

image quality in the agency's possession, and in separate, Bates-stamped files.
We also request that you provide an estimated date on which you will
finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 44

NATIONAL SECURITY PROJECT

ACLU I AMERICAN CIVIL LIBERTIES UNION

Filed 10/31/14

Page 74 of 112

November 8, 2013

BY UPS

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004-2400 T/212.549.2500 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

NSA/CSS FOIAAppeal Authority (DJ4) National Security Agency 9800 Savage Road, Suite 6248 Ft. George G. Meade, MD 20755-6248
RE: FREEDOM OF INFORMATION ACT APPEAL
Dear Sir or Madam,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") write to appeal from the constructive denial of their Freedom of Information Act request, submitted on May 13, 2013, for documents relating to Executive Order 12,333, 3 C.P.R. 200 (1981 Comp.) ("EO 12,333"). A copy of the request is attached here for reference. The ACLU received an acknowledgement of receipt dated July 1, 2013 in a letter signed by Pamela N. Philips. The request was assigned the following identification number: 70809.

Under the Freedom of Information Act, determinations about whether an agency will produce documents must be made within 20 business days. See 5 U.S.C. § 552(a)(6)(A)(i); 28 C.P.R.§ 16.6(b). Where an agency cannot meet the statutory time limit due to unusual circumstances, the agency may extend the time limit by ten working days with written notice to the requester. 5. U.S.C. § 552(a)(6)(B). An agency denying a request in any respect must send the requester a signed letter including, among other things, a brief statement of the reasons for denial. 5 U.S.C. § 552(a)(6)(A)(i).

Because the twenty-day statutory time has elapsed without a substantive response, the National Security Agency has constructively failed to meet its legal obligation to disclose the information requested. By this appeal, we ask you to direct the timely disclosure of all records responsive to our request.

~:::.::-@

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 75 of 112

We thank you for your consideration of this appeal. Pursuant to 5 U.S.C. § 552(a)(6)(A)(ii), we expect a response regarding this appeal within twenty days. If you have any questions or concerns, please do not hesitate to contact me at the email address or telephone number indicated below.

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

Sincerely,
aoU
Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 76 of 112

LEGAL DEPARTMENT

I AMERICAN CIVIL I..IBER:rtES UNlON

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE '·'5 BROAD STREET, 18TH FL. NEW YORK, NY 10004·'400 T/'"·549·'soo F/21'-·5't9·26$l WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

May 13,2013
BY USPS MAIL
Attn: Cindy Blacker NSA FOIA Requester Service Center/DJ4 9800 Savage Road, Suite 6248 Ft. George G. Meade, MD 20744-6248
RE: FREEDOM OF INFORMATION ACT REQUEST
Dear Ms. Blacker,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") submit this request under the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.P.R. 200 (1981 Comp.) ("EO 12,333"). Specifically, we request the following records1:
1. Any records construing or interpreting the authority of the National Security Agency ("Agency") under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the Agency with regard to both intelligence collection and intelligence interception conducted pursuant to the Agency's authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as the Agency defines these terms, pursuant to the Agency's authority under EO 12,333 or any regulations issued thereunder.

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 77 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONAL OFFICE. 125 BROAD STREET, 18TH FL. NEW YORK, NY l.0004.-21tOO T/212.549.2500 F/:n2.549·2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a "representative ofthe news media." 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU's mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a "representative ofthe news media" as an "entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat'! Sec. Archive v. Dep 't ofDef, 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf Am. Civil Liberties Union v. Dept ofJustice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be '"primarily engaged in disseminating information"'). Indeed, the ACLU
s recently was held to be a "representative of the news media." Serv. Women
Action Network v. Dep 1 ofDefense, 888 F. Supp. 2d 282, 287-88 (D. Conn.
2012); see also Am. Civil Liberties Union of Wash. v. Dep 1ofJustice, No.
C09-0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU ofWashington to be a "representative of the news media"), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure ofthe requested information is in the public interest because: (1) it "is likely to contribute significantly to public understanding of the operations or activities of the government," and (2) it "is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns "the operations or activities" of the Agency. E.O. 12,333 is "intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers." EO 12,333 § 2.2. It authorizes the intelligence community, including the Agency, to collect intelligence, and it sets forth certain limitations on intelligence-gathering activities relevant to civil liberties. In its brief in a

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 78 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 115 BROAD STREET, 18TH FL. NEW YORK, NY l.ooo4·.lttoo T/u>.549·1500 F/212.549·2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

recent case before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance ofAmericans' foreign contacts abroad under Executive Order No. 12,333, without conforming to
various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int 'l
USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights ofAmerican citizens and residents whose communications are intercepted in the course ofthat surveillance, are matters of great significance.
Moreover, the requested materials will "contribute significantly to the public understanding" of the Agency's operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int'l USA, No. 11-1025, 2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333 's limits on the intelligence community in slightly different ways or provide predictable definitions for tenns left undefined in the executive order. See, e.g., Dep't of Def., DOD 5240 1-R, Procedures Governing the Activities ofDOD Intelligence Components that Affect United States Persons § C2.3.12 (Dec. 1982); Nat'l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, US. Army Intelligence Procedures § 2-2(1) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D.lll. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the US.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 79 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004·>400 T/lU. 549.1500 F/212.549·2651 WWW.ACLLJ.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANHIONY D. ROMERO EXECUTIVE DIRECTOR

electronically in a text-searchable, static-image format (PDF), in the best image quality in the agency's possession, and in separate, Bates-stamped files.
We also request that you provide an estimated date on which you will
finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 44

NATIONAL SECURITY PROJECT

ACl.U I AMERICAN CIVIL LIBERTIES UNION

Filed 10/31/14

Page 80 of 112

November 8, 2013

BY UPS

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL QFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004-2400 T/212.549.2500 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

Office of Information Policy U.S. Department of Justice, Suite 11050 1425 New York Avenue, N.W. Washington, D.C. 20530
RE: FREEDOM OF INFORMATION ACT APPEAL [FEDERAL BUREAU OF INVESTIGATION]
Dear Sir or Madam,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") write to appeal from the constructive denial of their Freedom of Information Act request, submitted on May 13, 2013, for documents relating to Executive Order 12,333, 3 C.P.R. 200 (1981 Comp.) ("EO 12,333"). A copy of the request is attached here for reference. The ACLU received an acknowledgement of receipt dated June 7, 2013 in a letter signed by David M. Hardy. The request was assigned the following identification number: 1216886-000.

Under the Freedom of Information Act, determinations about whether an agency will produce documents must be made within 20 business days. See 5 U.S.C. § 552(a)(6)(A)(i); 28 C.P.R.§ 16.6(b). Where an agency cannot meet the statutory time limit due to unusual circumstances, the agency may extend the time limit by ten working days with written notice to the requester. 5. U.S.C. § 552(a)(6)(B). An agency denying a request in any respect must send the requester a signed letter including, among other things, a brief statement of the reasons for denial. 5 U.S.C. § 552(a)(6)(A)(i).

Because the twenty-day statutory time has elapsed without a substantive response, the Federal Bureau oflnvestigation has constructively failed to meet its legal obligation to disclose the information requested. By this appeal, we ask you to direct the timely disclosure of all records responsive to our request.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 81 of 112
We thank you for your consideration of this appeal. Pursuant to 5 U.S.C. § 552(a)(6)(A)(ii), we expect a response regarding this appeal within twenty days. If you have any questions or concerns, please do not hesitate to contact me at the email address or telephone number indicated below.
Sincerely,

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 82 of 112

LEGAL DEPARTMENT

I AMERICAN CIVIL LIBERTIES UNION

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY looo4->4oo T /> "· 549· 2500
F/n>.st,g. 2651
WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

May 13,2013
BY USPS MAIL
Federal Bureau of Investigation Attn: FOI/PA Request Record/Information Dissemination Section 170 Marcel Drive Winchester, VA 22602-4843
RE: FREEDOM OF INFORMATION ACT REQUEST
To Whom It May Concern:
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") submit this request under the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.P.R. 200 (1981 Comp.) ("EO 12,333"). Specifically, we request the following records 1:
1. Any records construing or interpreting the authority of the Federal Bureau oflnvestigation ("FBI") under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the FBI with regard to both intelligence collection and intelligence interception conducted pursuant to the FBI's authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as the FBI defines these terms, pursuant to the FBI's authority under EO 12,333 or any regulations issued thereunder.

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 83 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL. OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 1ooo4~2ftOO T/212.549.2500 F/2t:L549-2651 WWW.ACLl!.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a "representative ofthe news media." 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU's mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a "representative ofthe news media" as an "entity that gathers information of potential interest to a segment of the public, uses its editorial skills to tum the raw materials into a distinct work, and distributes that work to an audience." 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat'! Sec. Archive v. Dept ofDef, 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf Am. Civil Liberties Union v. Dept ofJustice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be '"primarily engaged in disseminating information"'). Indeed, the ACLU recently was held to be a "representative of the news media." Serv. Women :S Action Network v. Dep 't ofDefense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dept ofJustice, No. C09-0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a "representative ofthe news media"), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure ofthe requested information is in the public interest because: (1) it "is likely to contribute significantly to public understanding ofthe operations or activities ofthe government," and (2) it "is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns "the operations or activities" of the FBI. E.O. 12,333 is "intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers." EO 12,333 § 2.2. It authorizes the intelligence community, including the FBI, to collect intelligence, and it sets forth certain limitations on intelligencegathering activities relevant to civil liberties. In its brief in a recent case

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 84 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 1000t~~2400 T/»>.. 54·9· 2500 F/n2.549·2651 WWW.ACLU.OilG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance ofAmericans' foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int 'l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will "contribute significantly to the public understanding" of the FBI's operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its
authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int'l
USA, No. 11-1025, 2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333's limits on the intelligence community in slightly different ways or provide predictable definitions for tenns left undefined in the executive order. See, e.g., Dep't ofDef., DOD 5240 1-R, Procedures Governing the Activities ofDOD Intelligence Components that Affect United States Persons§ C2.3.12 (Dec. 1982); Nat'l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, US. Army Intelligence Procedures§ 2-2(1) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the US.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. Ifthe search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best image quality in the agency's possession, and in separate, Bates-stamped files.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 85 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 1ooo4w24oo T /212. 549· 2500 F/212.549.2651 WWW.ACLLJ.ORG
OFFICERS AND DIRECTORS SUSAN N, HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

We also request that you provide an estimated date on which you will
finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 44

NATIONAL SECURITY PROJECT

ACL.U I AMERICAN CIVIL LIBERTIES UNION

Filed 10/31/14

Page 86 of 112

BY UPS

November 8, 2013

Office of Information Policy U.S. Department of Justice, Suite 11050 1425 New York Avenue, N.W. Washington, D.C. 20530-0001

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004-2400 T/212.549.2500 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

RE: FREEDOM OF INFORMATION ACT APPEAL [NATIONAL SECURITY DIVISION)
Dear Sir or Madam,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") write to appeal from the constructive denial of their Freedom of Information Act request, submitted on May 13,2013, for documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Comp.) ("EO 12,333"). A copy ofthe request is attached here for reference. The ACLU received an acknowledgement of receipt dated June 11, 2013 in a letter signed by Arnetta Mallory. The request was assigned the following identification number: 13-175.

Under the Freedom of Information Act, determinations about whether an agency will produce documents must be made within 20 business days. See 5 U.S.C. § 552(a)(6)(A)(i); 28 C.F.R. § 16.6(b). Where an agency cannot meet the statutory time limit due to unusual circumstances, the agency may extend the time limit by ten working days with written notice to the requester. 5. U.S.C. § 552(a)(6)(B). An agency denying a request in any respect must send the requester a signed letter including, among other things, a brief statement of the reasons for denial. 5 U.S.C. § 552(a)(6)(A)(i).

Because the twenty-day statutory time has elapsed without a substantive response, the Department of Justice, National Security Division has constructively failed to meet its legal obligation to disclose the information requested. By this appeal, we ask you to direct the timely disclosure of all records responsive to our request.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 87 of 112
We thank you for your consideration of this appeal. Pursuant to 5 U.S.C. § 552(a)(6)(A)(ii), we expect a response regarding this appeal within twenty days. If you have any questions or concerns, please do not hesitate to contact me at the email address or telephone number indicated below.
Sincerely,

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 88 of 112

LEGAL DEPARTMENT

I AMERICAN CIVII..l!fiERTlES Ul\llON

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONAL OFFICE 125 BIWAD STREET, 18TH FL. NEW YORK, NY 10004·2400 T/212.549·25oo F/Jt::L51t9• 2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

May 13,2013
BY USPS MAIL
Arnetta Mallory, FOIA Initiatives Coordinator National Security Division U.S. Department of Justice 950 Pennsylvania Avenue, NW Room 6150 Washington, DC 20530-0001
RE: FREEDOM OF INFORMATION ACT REQUEST
Dear Ms. Mallory,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") submit this request under the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Comp.) ("EO 12,333"). Specifically, we request the following records1:
1. Any records construing or interpreting the authority ofthe National Security Division ("NSD") under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the NSD with regard to both intelligence collection and intelligence interception conducted pursuant to the NSD's authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as the NSD defines these terms, pursuant to the NSD's authority under EO 12,333 or any regulations issued thereunder.

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 89 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004·2400 T /2.12., St1.g. l500 F/212.549·2651 WWW.ACI.l!.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a "representative ofthe news media." 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU's mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a "representative ofthe news media" as an "entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat'/ Sec. Archive v. Dep ~ofDef, 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf Am. Civil Liberties Union v. Dep~ ofJustice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finc~ing non-profit public interest group to be "'primarily engaged in disseminating information"'). Indeed, the ACLU recently was held to be a "representative of the news media." Serv. Women's Action Network v. Dep 't ofDefense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep ~ofJustice, No. C09-0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a "representative of the news media"), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it "is likely to contribute significantly to public understanding ofthe operations or activities ofthe government," and (2) it "is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns "the operations or activities" of the NSD. E.O. 12,333 is "intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers." EO 12,333 § 2.2. It authorizes the intelligence community, including the NSD, to collect intelligence, and it sets forth certain limitations on intelligencegathering activities relevant to civil liberties. In its brief in a recent case

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 90 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH Fl. NEW YORK, NY tooot.~24o0 T/>1>. 549· 2500 F/212.549·2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance ofAmericans' foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int 'l USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will "contribute significantly to the public understanding" ofthe NSD's operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int'l USA, No. 11-1025,2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333 's limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep't ofDef., DOD 5240 1-R, Procedures Governing the Activities ofDOD Intelligence Components that Affect United States Persons § C2.3.12 (Dec. 1982); Nat'l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, U.S. Army Intelligence Procedures§ 2-2(1) (2007). Judicial treatments of EO 12,333 contribute equally little to, the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best image quality in the agency's possession, and in separate, Bates-stamped files.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 91 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE. 125 BROAD STREET, 18TH FL. NEW YORK, NY J.ooot~<l400 T/>1>.549·>500 F/212.549·2651 WWW.ACLlJ.ORG
OFFICI::RS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

We also request that you provide an estimated date on which you will
finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

NATIONAL SECURITY Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 92 of 112

PROJECT

ACL.U

AMERICAN CIVIL LIBERTIES UNION

BY UPS

November 8, 2013

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004-2400 T/212.549.2500 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

Office of Information Policy U.S. Department of Justice 1425 New York Avenue, N.W. Washington, DC 20530 0001
RE: FREEDOM OF INFORMATION ACT APPEAL [OFFICE OF LEGAL COUNSELl
Dear Sir or Madam,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") write to appeal from the constructive denial of their Freedom of Information Act request, submitted on May 13, 2013, for documents relating to Executive Order 12,333, 3 C.P.R. 200 (1981 Comp.) ("EO 12,333"). A copy of the request is attached here for reference. The ACLU received an acknowledgement of receipt dated June 25, 2013 in a letter signed by Paul P. Colborn. The request was assigned the following identification number: FYI13-051.

Under the Freedom of Information Act, determinations about whether an agency will produce documents must be made within 20 business days. See 5 U.S.C. § 552(a)(6)(A)(i); 28 C.P.R. § 16.6(b). Where an agency cannot meet the statutory time limit due to unusual circumstances, the agency may extend the time limit by ten working days with written notice to the requester. 5. U.S.C. § 552(a)(6)(B). An agency denying a request in any respect must send the requester a signed letter including, among other things, a brief statement of the reasons for denial. 5 U.S.C. § 552(a)(6)(A)(i).

Because the twenty-day statutory time has elapsed without a substantive response, the Office of Legal Counsel has constructively failed to meet its legal obligation to disclose the information requested. By this appeal, we ask you to direct the timely disclosure of all records responsive to our request.

-::.-:::- @

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 93 of 112
We thank you for your consideration of this appeal. Pursuant to 5 U.S.C. § 552(a)(6)(A)(ii), we expect a response regarding this appeal within twenty days. If you have any questions or concerns, please do not hesitate to contact me at the email address or telephone number indicated below.
Sincerely,

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 94 of 112

LEGAL DEPARTMENT

I AMERICAN CIVIL LIBERTIES UNION

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL.
T/212.549·:zsoo F/n>.549·>65l WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

May 13,2013
BY USPS MAIL
Elizabeth Farris, Supervisory Paralegal Office of Legal Counsel Room 5515,950 Pennsylvania Avenue, NW Department of Justice Washington, DC 20530-0001
RE: FREEDOM OF INFORMATION ACT REQUEST
Dear Ms. Farris,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") submit this request under the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.P.R. 200 (1981 Camp.) ("EO 12,333"). Specifically, we request the following records1:
1. Any records in which the Office of Legal Counsel ("OLC") construes or interprets the authority of the Department of Justice ("DOJ") or any executive agencies under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the government with regard to both intelligence collection and intelligence interception conducted pursuant to EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as those terms are defined in EO 12,333 or any regulations issued thereunder.

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 95 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY l.ooo4·24oo T/2.». 549· >soo F/212.549·2651 WWW.ACLI.J.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a "representative of the news media." 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU's mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi~weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a "representative ofthe news media" as an "entity that gathers information of potential interest to a segment of the public, uses its editorial skills to tum the raw materials into a distinct work, and distributes that work to an audience." 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat'! Sec. Archive v. Dep1 ofDef, 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf Am. Civil Liberties Union v. Dep 1ofJustice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non~profit public interest group to be '"primarily engaged in disseminating information"'). Indeed, the ACLU
s recently was held to be a "representative of the news media." Serv. Women
Action Network v. Dep 1ofDefense, 888 F. Supp. 2d 282, 287~88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dept ofJustice, No. C09-0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a "representative of the news media"), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it "is likely to contribute significantly to public understanding of the operations or activities ofthe government," and (2) it "is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns "the operations or activities" of the OLC. E.O. 12,333 is "intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers." EO 12,333 § 2.2. It authorizes the intelligence community, including the OLC, to collect intelligence, and it sets forth certain limitations on intelligencegathering activities relevant to civil liberties. In its brief in a recent case

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 96 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004.·2ttoo T /212. 549· >.soo F/212.549· 2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance ofAmericans' foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int 'I USA, No. 11-1025, 2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance.
Moreover, the requested materials will "contribute significantly to the public understanding" of the intelligence community's operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its
authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int'l
USA, No. 11-1025, 2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333's limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep't ofDef., DOD 5240 1-R, Procedures Governing the Activities ofDOD Intelligence Components that Affect United States Persons § C2.3 .12 (Dec. 1982); Nat'l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, U.S. Army Intelligence Procedures§ 2-2(1) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best image quality in the agency's possession, and in separate, Bates-stamped files.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 97 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YOf~K, NY J.ooot~~2400 T/212. 549· 2500 F/212.549·2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

We also request that you provide an estimated date on which you will
finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 tJ.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working~day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549~2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 44

NATIONAL SECURITY PROJECT

ACl.U I AMERICAN CIVIL LIBERTIES UNION

Filed 10/31/14

Page 98 of 112

BY CERTIFIED MAIL

November 8, 2013

Chairman, Appeals Review Panel c/o Information and Privacy Coordinator/Appeals Officer U.S. Department of State A/GIS/IPS/PP, SA-2 Washington, DC 20522-8100

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004-2400 T/212.549.2500 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

RE: FREEDOM OF INFORMATION ACT APPEAL
Dear Mr. Chairman,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") write to appeal from the constructive denial oftheir Freedom of Information Act request, submitted on May 13, 2013, for documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Comp.) ("EO 12,333"). A copy ofthe request is attached here for reference. The ACLU received an acknowledgement of receipt dated June 5, 2013 in a letter signed by Mary Therese Casto. The request was assigned the following identification number: F-2013-09022.

Under the Freedom of Information Act, determinations about whether an agency will produce documents must be made within 20 business days. See 5 U.S.C. § 552(a)(6)(A)(i); 28 C.F.R. § 16.6(b). Where an agency cannot meet the statutory time limit due to unusual circumstances, the agency may extend the time limit by t~m working days with written notice to the requester. 5. U.S.C. § 552(a)(6)(B). An agency denying a request in any respect must send the requester a signed letter including, among other things, a brief statement of the reasons for denial. 5 U.S.C. § 552(a)(6)(A)(i).

Because the twenty-day statutory time limit has elapsed without a substantive response, the Department of State has constructively failed to meet its legal obligation to disclose the information requested. By this appeal, we ask you to direct the timely disclosure of all records responsive to our request.

~:::::- ®

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 99 of 112
We thank you for your consideration of this appeal. Pursuant to 5 U.S.C. § 552(a)(6)(A)(ii), we expect a response regarding this appeal within twenty days. If you have any questions or concerns, please do not hesitate to contact me at the email address or telephone number indicated below.
Sincerely,

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 100 of 112

LEGAL DEPARTMENT

I AMERICAN CIVIL LIBERTIES UNlON

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY lo004-2400 T/212.549·•5oo F/21.2.5t,g.2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. IHlMERO EXECUTIVE DIRECTOR

May 13,2013
BY USPS MAIL
Office of Informational Programs and Services A/GIS/IPS/RL Department of State, SA-2 Washington, DC 20522-8100
RE: FREEDOM OF INFORMATION ACT REQUEST
To Whom It May Concern:
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") submit this request under the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Camp.) ("EO 12,333"). Specifically, we request the following records1:
1. Any records construing or interpreting the authority of the United States Department of State ("Department") under Executive Order 12,333 or any regulations issued thereunder;
2. Any records describing the minimization procedures2 used by the Department with regard to both intelligence collection and intelligence interception conducted pursuant to the Department's authority under EO 12,333 or any regulations issued thereunder; and
3. Any records describing the standards that must be satisfied for the "collection," "acquisition," or "interception" of communications, as the Department defines these terms, pursuant to the Department's authority under EO 12,333 or any regulations issued thereunder.

Records include but are not limited to electronic records, letters, correspondence,

tape recordings, notes, data, memoranda, reports, email, computer source and object code,

technical manuals, technical specifications, legal opinions, policy statements, and any other

materials.

2

Minimization procedures include but are not limited to rules, policies, or procedures

addressing the collection, interception, handling, use, retention, and destruction of information

relating to U.S. persons that is acquired in the course of intelligence activities.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 101 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004-2400
T/212. SLt9· 2500 F/n2.549.2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a "representative ofthe news media." 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU's mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a "representative of the news media" as an "entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat'! Sec. Archive v. Dep't ofDef, 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf Am. Civil Liberties Union v. Dep 't ofJustice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be "'primarily engaged in disseminating information"'). Indeed, the ACLU recently was held to be a "representative of the news media." Serv. Women's Action Network v. Dep 't ofDefense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep't ofJustice, No. C09-0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a "representative ofthe news media"), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19,2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it "is likely to contribute significantly to public understanding of the operations or activities of the government," and (2) it "is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, the requested material concerns "the operations or activities" of the Department. E.O. 12,333 is "intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers." EO 12,333 § 2.2. It authorizes the intelligence community, including the Department, to collect intelligence, and it sets forth certain limitations on intelligence-gathering activities relevant to civil liberties. In its brief in a

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 102 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 1ooo4-240o T/212. 549· 2500 F/212.549·2651 WWW.ACI.U.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

recent case before the Supreme Court of the United States, the Government emphasized its authority to conduct surveillance of Americans' foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Brief for Petitioners, Clapper v. Amnesty Int 'l USA, No. 11-1025,2012 WL 3090949, at *45 (U.S. 2012). How the Government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course ofthat surveillance, are matters of great significance.
Moreover, the requested materials will "contribute significantly to the public understanding" of the Department's operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject offoreign-intelligence collection is a matter of great public interest and concern, little information on how the American intelligence community construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government makes no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Brief for Petitioners, Clapper v. Amnesty Int'l USA, No. 11-1025,2012 WL 3090949 at *4, *33, *41, *45. Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333 's limits on the intelligence community in slightly different ways or provide predictable definitions for terms left undefined in the executive order. See, e.g., Dep't ofDef., DOD 5240 1-R, Procedures Governing the Activities ofDOD Intelligence Components that Affect United States Persons§ C2.3.12 (Dec. 1982); Nat'l Sec. Agency, United States Signals Intelligence Directive 18 (July 1993); Army Regulation 381-10, US. Army Intelligence Procedures § 2-2(1) (2007). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g., United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we respectfully request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
***
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 103 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY tooot~~2400 Tl212.549·25oo F/212.549·2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

image quality in the agency's possession, and in separate, Bates-stamped files.
We also request that you provide an estimated date on which you will
finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (2010).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty working-day statutory time limit.
Sincerely,

Alexander Abdo Staff Attorney National Security Project American Civil Liberties Union
Phone: (212) 549-2517 Email: aabdo@aclu.org

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 104 of 112
Exhibit G

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 105 of 112

NA TIONAL SECURITY PROJECT

ACLU I AMERICAN CIVIL LIBERTIES UNION

AMERICAN CIVIL LIBERTIES UNION FOUNDATI ON NAT ION AL OF FI CE 125 BRO A D ST REET, 18TH F L. NEW YO RK. N Y 1000 4-240 0 T/212.549. 2500 WWW.ACLU .ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. RO M ERO EX ECUTI VE DIRECTOR
RICHARD ZACKS TREA SUR E R

July 29, 2014
BY CERTIFIED MAIL
Ametta Mallory, FOIA Initiatives Coordinator National Security Division U.S . Department of Justice 950 Pennsylvania Avenue, NW Room 6150 Washington, DC 20530-0001
Re: REQUEST UNDER FREEDOM OF INFORMATION ACT I Expedited Processing Requested
Dear Ms. Mallory,
The American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") submit this request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for access to documents relating to Executive Order 12,333, 3 C.F.R. 200 (1981 Comp.) ("EO 12,333").
I. Requested Records
Specifically, we request the following records:
1. Formal regulations or policies relating to any agency' s authority under EO 12,333 to undertake "Electronic Surveillance" (as that term is defined in EO 12,333) that implicates"United States Persons" (as that term is defmed in EO 12,333), including regulations or policies relating to the acquisition, retention, dissemination, or use of information or communications to, from, or about United States Persons under such authority. 1
2. Records that officially authorize or modify under EO 12,333 any agency's use of specific programs, techniques, or types of Electronic Surveillance that implicate United States Persons, including official rules or procedures for the acquisition, retention, dissemination, or use of information or communications to, from, or about United States persons

1 For purposes of this Request, surveillance that "implicates" United States Persons means surveillance that is reasonably believed to involve the interception, acquisition, scanning, or collection of information or communications to, from, or about a United States Person or persons even if the target of such surveillance is not a United States Person.

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 106 of 112

AME RICAN CIVI L LIBERT I ES UN ION FOUNOATION

under such authority generally or in the context of particular programs, techniques, or types of Electronic Surveillance.
3. Formal legal opinions addressing any agency' s authority under EO 12,333 to undertake specific programs, techniques, or types of Electronic Surveillance that implicates United States Persons, including formal legal opinions relating to the acquisition, retention, dissemination, or use of information or communications to, from, or about United States Persons under such authority generally or in the context of particular programs, techniques, or types ofElectronic Surveillance.
4. Formal training materials or reference materials (such as handbooks, presentations, or manuals) that expound on or explain how any agency implements its authority under EO 12,333 to undertake Electronic Surveillance that implicates United States Persons, including the acquisition, retention, dissemination, or use of information or communications to, from, or about United States Persons under such authority.
5. Formal reports relating to Electronic Surveillance under EO 12,333 implicating United States Persons that contain any meaningful discussion of ( l) any agency' s compliance, in undertaking such surveillance, with EO 12,333, its implementing regulations, the Foreign Intelligence Surveillance Act, or the Fourth Amendment; or (2) any agency's interception, acquisition, scanning, or collection of the communications of United States Persons, whether " incidental" or otherwise, in undertaking such surveillance; and that are or were:
a. Authored by an inspector general or the functional equivalent thereof;
b. Submitted to Congress, the Office of the Director ofNational Intelligence, the Attorney General, or the Deputy Attorney General; or
c. Maintained by the office of the Assistant Attorney General for National Security.
The Request is intended to supplement a FOIA request filed on May 13, 2013, which is the subject ofACLUv. NSA, No. 13 Civ. 9198 (AT) (S.D.N.Y.). To the extent that this Request involves records being processed in response to the ACLU's previous request, we are available to discuss ways of avoiding any unnecessary duplication of effort.
II. Request for Expedited Processing
We request expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E). See also 28 C.F.R. § 16.5(d). There is a " compelling need" for these records because the information requested is urgently needed by an organization primarily engaged in disseminating information in order to inform the public about actual
2

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 107 of 112

AMERICAN CIVI L LIBERTIES UNIO N FO UN DATION

or alleged federal government activity. 5 U.S.C. § 552(a)(6)(E)(v); see also 28 C.F.R. § 16.5(d)(1)(ii). In addition, the records sought relate 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)(l )(iv).
A. The ACLU is an organization primarily engaged in disseminating information in order to inform the public about actual or alleged government activity.
The ACLU is "primarily engaged in disseminating information" within the meaning of the statute and regulations. 5 U.S.C. § 552(a)(6)(E)(v)(II); 28 C.F.R. § 16.5(d)(l)(ii). Obtaining information about government activity, analyzing that information, and widely publishing and disseminating that information to the press and public is a critical and substantial component of the ACLU's work and one of its primary activities. See ACLU v. Dep 't ofJustice, 321 F. Supp. 2d 24, 30 n.5 (D.D.C. 2004) (finding non-profit public interest group that "gathers information of potential interest to a segment of the public, uses its editorial skills to tum the raw material into a distinct work, and distributes that work to an audience" to be "primarily engaged in disseminating information" (internal citation omitted)).2
Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU' s mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. The ACLU's regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; and a widely read blog. The ACLU also regularly issues press releases to call attention to documents obtained through FOIA requests, as well as other breaking news.3 ACLU attorneys are interviewed frequently for news stories about documents released through ACLU FOIA requests.4
2 See also Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 260 (D.D.C. 2005).
3 See, e.g. , Release, American Civil Liberties Union, Documents Show FBI Monitored Bay Area Occupy Movement, Sept. 14, 2012, http://www.aclu.org/node/36742; Press Release, American Civil Liberties Union, FOIA Documents Show FBI Using "Mosque Outreach " for Intelligence Gathering, Mar. 27, 20 12, http://www.acIu.org/national-security/foia-documents-show-fbi-using-mosqueoutreach-intelligence-gathering.
4 See, e.g., Peter Finn & Julie Tate, CIA Mistaken on 'High-Value ' Detainee, Document Shows, Wash. Post, June 16, 2009 (quoting ACLU attorney Ben Wizner); Scott Shane, Lawsuits Force Disclosures by C.I.A. , N.Y. Times, June 10, 2009 (quoting ACLU attorney Jameel Jaffer).
3

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 108 of 112

AMERICA N CIVIL LIBE RTI ES UNIO N FO UNDATIO N

In addition, the ACLU website includes features that provide information about actual or alleged government activity obtained through FOIA.5 For example, the ACLU maintains an online "Torture Database,"6 a compilation of over 100,000 FOIA documents that allows researchers and the public to conduct sophisticated searches of FOIA documents relating to government policies on rendition, detention, and interrogation.7 Similarly, the ACLU' s webpage about the Office of Legal Counsel ("OLC") torture memos obtained through FOIA contains commentary and analysis of the memos; an original, comprehensive chart summarizing the memos; links to web features created by ProPublica (an independent, non-profit, investigative-journalism organization) based on the ACLU's information gathering, research, and analysis; and ACLU videos about the memos.8 Beyond its website and online features, the ACLU has produced an in-depth television series on civil liberties, which has included analysis and explanation of information the ACLU has obtained through FOIA.
B. The records sought are urgently needed to inform the public about actual or alleged government activity.
The records sought are urgently needed to inform the public about actual or alleged federal government activity. In particular, the records sought pertain to the conduct and oversight of intelligence activities undertaken pursuant to EO 12,333. Recent reports in the media indicate that the scope of the government's surveillance under EO 12,333 may be far broader than Americans currently understand, and may operate without the same privacy protections applied to surveillance conducted under other statutory authorities. See, e.g. , John Napier Tye, Meet Executive Order 12333: The Reagan Rule that Lets the NSA Spy on Americans, Wash. Post (July 18, 2014), http://wapo.st/UgOkLS. Moreover, an independent report issued by the President's Review Group last December suggested that information collected to, from, or about U.S. persons should receive greater protection-a recommendation that would apply to EO 12,333 surveillance. See President's Review Group on Intelligence and Communications Technologies, Report and Recommendations 28-29 (Dec. 12, 20 13), http://bit.ly/ 1cBj5vG. Despite these urgent calls for reform, the public has few details about the policies, rules, or procedures that currently govern the collection, use, and dissemination of Americans' information under EO 12,333.
5 See, e.g., http://www.aclu.org/national-security/predator-drone-foia; http: / /www.ac lu. org/mappingthefbi.
6 http://www.torturedatabase.org.
7 The ACLU also maintains a "Torture FOIA" webpage (http://www.aclu.org/torturefoia) containing commentary about the ACLU's FOIA request, press releases, and analysis of the FOIA documents. That webpage also notes that the ACLU, in collaboration with Columbia University Press, has published a book about the documents obtained through FOIA. See Jameel Jaffer & Amrit Singh, Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond (Columbia Univ. Press 2007).
8 http://www.aclu.orglsafefree/general/olc_ memos.html.
4

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 109 of 112

AM ERICAN CIVIL LIB ERTIES UNIO N FOU NDAT IO N

The requested records also relate 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)(l)(iv), and to a matter where there is "urgency to inform the public about an actual or alleged federal government activity." 28 C.F.R. § 16.5(d)(1)(ii).
The government's electronic surveillance powers have been a significant matter of public concern and media interest for many years, particularly after the revelation of the NSA' s warrantless wiretapping program. The legislation that emerged out of that controversy-the FAA-has been the subject of widespread interest and debate since the moment it was introduced in 2008. See, e.g., Sean Lengell, House Approves Update ofBipartisan Spy Laws, Wash. Times, June 21, 2008; Editorial, Mr. Bush v. the Bill ofRights, N.Y. Times, June 18, 2008; Editorial, Compromising the Constitution, N.Y. Times, July 8, 2008 (stating that the FAA would "make it easier to spy on Americans at home, reduce the courts' powers and grant immunity to the companies that turned over Americans' private communications without warrant"); Editorial, Election-Year Spying Deal is Flawed, Overly Broad, USA Today, June 25, 2008.
This public debate has only grown with the disclosure of information about the scope and intrusiveness of government surveillance. Scores of articles published during the past year have addressed the government's surveillance activities-including those under EO 12,333. See, e.g., Zack Whittaker, Legal Loopholes Could Allow Wider NSA Surveillance, Researchers Say, CBS News (June 30, 2014), http://cbsn.ws/1 ticymy; Mike Masnick, Privacy Oversight Board Turns Its Sights on the Real Problem: Executive Order 12333, Techdirt (July 23, 2014), http://bit.ly/ lrS7Ud8; Naomi LaChance, Should Executive Order 12333 Be Repealed?, U.S. News (July 21 , 2014), http://bit.ly/lqav5Mz; John Napier Tye, Meet Executive Order 12333: The Reagan Rule that Lets the NSA Spy on Americans, Wash. Post (July 18, 2014), http://wapo.st/UgOkLS.
Many of these articles have highlighted pressing concerns about whether Americans' privacy is adequately protected when the government engages in surveillance under EO 12,333. The Request seeks information bearing directly on this matter of public interest.
As the sustained media interest concerning the scope and privacy implications of the government's electronic surveillance power clearly shows, the impact of EO 12,333 on Americans' privacy constitutes 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)(l)(iv). The Request will inform urgent and ongoing debate about the government's surveillance and wiretapping activities.
Accordingly, expedited processing should be granted.
5

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 110 of 112

AMERICAN CIVIL LIBERTIES U N ION FOU NDATION

III. Request for a Fee Limitation and Public Interest Fee Waiver
The ACLU requests a waiver of search and review fees because the requested records are not sought for commercial use and because the ACLU is a "representative of the news media." 5 U.S.C. § 552(a)(4)(A)(ii)(II). Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU' s mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. Its regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.
The ACLU therefore meets the statutory definition of a "representative of the news media" as an "entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat '! Sec. Archive v. Dep 't ofDef, 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf Am. Civil Liberties Union v. Dep 't ofJustice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group to be "'primarily engaged in disseminating information"'). Indeed, the ACLU recently was held to be a "representative of the news media." Serv. Women 's Action Network v. Dep 't ofDefense, 888 F. Supp. 2d 282, 287-88 (D. Conn. 2012); see also Am. Civil Liberties Union of Wash. v. Dep 't ofJustice, No. C09-0642RSL, 2011 WL 887731 , at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a "representative of the news media"), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
The ACLU also requests a waiver of all search, review, or duplication fees on the ground that disclosure of the requested information is in the public interest because: (1) it "is likely to contribute significantly to public understanding of the operations or activities of the government," and (2) it "is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). This request clearly satisfies these criteria.
First, as described in Part II.B, the requested material concerns "the operations or activities" of the Department of Justice. E.O. 12,333 is " intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers." EO 12,333 § 2.2. It authorizes the government to collect intelligence, and it sets forth certain limitations on intelligence-gathering activities relevant to civil liberties. In its brief in a recent case before the Supreme Court of the United States, the government emphasized its authority to conduct surveillance of Americans' foreign contacts abroad under Executive Order No. 12,333, without conforming to various statutory restrictions. Br. for
6

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 111 of 112

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

Petitioners, Clapper v. Amnesty Int'l USA, No.1 1-1025,2012 WL 3090949, at *45 (U.S. 2012). How the government actually does this, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great significance. This question is a matter of pressing public concern. See, e.g., John Napier Tye, Meet Executive Order 12333: The Reagan Rule that Lets the NSA Spy on Americans, Wash. Post (July 18, 2014), http://wapo.st/UgOkLS.
Moreover, the requested materials will "contribute significantly to the public understanding" of the intelligence community's operations or activities. 5 U.S.C. § 552(a)(4)(A)(iii). Though the subject of foreign-intelligence collection is a matter of great public interest and concern, little information on how the Department of Justice construes the authority conferred by EO 12,333 and its implementing regulations is currently publicly available.
For example, in the Clapper brief described above, the government made no argument beyond a handful of one-sentence assertions of its authority under EO 12,333. See Br. for Petitioners, Clapper v. Amnesty Int'l USA, No. 11-1025, 2012 WL 3090949 at *4, *33, *41, *45 (U.S. 2012). Likewise, the publicly available administrative agency materials typically do little more than restate EO 12,333 ' s limits on the intelligence community in slightly different ways or provide predictable defmitions for terms left undefined in the executive order. See, e.g., Nat'l Sec. Agency, United States Signals Intelligence Directive 18 (Jan. 2011); Army Regulation 381-10, US. Army Intelligence Procedures§ 2-2(1) (2007); Dep' t ofDef., DOD 5240 1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons§ C2.3.12 (Dec. 1982). Judicial treatments of EO 12,333 contribute equally little to the public understanding of the limits of intelligence-gathering powers under EO 12,333. See, e.g. , United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006); United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989); United Presbyterian Church in the USA. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
For these reasons, we request that all fees related to the search, review, and duplication of the requested records be waived. If the search and review fees will not be waived, we ask that you contact us at the email address listed below should the estimated fees resulting from this request exceed $100.
* * *
We request that responsive electronic records be provided electronically in their native file format, if possible. See 5 U.S.C. § 552(a)(3)(B). Alternatively, we request that the records be provided electronically in a text-searchable, staticimage format (PDF), in the best image quality in the agency' s possession, and in separate, Bates-stamped files.
We also request that you provide an estimated date on which you will finish processing this request. See 5 U.S.C. § 552(a)(7)(B).
7

Case 1:13-cv-09198-AT Document 44 Filed 10/31/14 Page 112 of 112

AMERICAN CIVIL LIBERTIES UN ION FOUNDATI ON

If this FOIA request is denied in whole or in part, please provide the reasons for the denial, pursuant to 5 U.S.C. § 552(a)(6)(A)(i). In addition, please release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). Furthermore, if any documents responsive to this request are classified, please identify those documents, including a date and document number where possible, so we may begin the process of requesting a Mandatory Declassification Review under the terms of Executive Order 13,526 (20 10).
Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact us at the email address listed below. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), we expect a response regarding this request within the twenty business-day statutory time limit.
s~~~-1
Patrick Toomey Staff Attorney National Security Proj American Civil Liberties Union
Phone: (212) 519-7816 Email: ptoomey@aclu.org

8

 
 Case 1:13-cv-09198-AT Document 43 Filed 10/30/14 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

AMERICAN CIVIL LIBERTIES UNION, and AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
Plaintiffs,

USDCSDNY DOCUMENT ELECTRON! CALLY FILED DOC#:·------~----~
DATE FILED: io /s o_Lz..olti

v.
NATIONAL SECURITY AGENCY, CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, and DEPARTMENT OF STATE,

No. 13-cv-09198 (AT) ECF Case

Defendants.

JOINT STIPULATION AND ORDER WHEREAS Plaintiffs American Civil Liberties Union and American Civil Liberties Union Foundation seek to further amend their Complaint for disclosure of records from Defendants pursuant to the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552; and WHEREAS Defendants consent to Plaintiffs' request to file a Second Amended Complaint; now therefore, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned counsel, subject to the approval of the Court, that: 1. Plaintiffs may file a Second Amended Complaint in the form attached hereto as Exhibit A. 2. Within two weeks of the date of this Joint Stipulation, the parties will submit to the

Case 1:13-cv-09198-AT Document 43 Filed 10/30/14 Page 2 of 3

Court an agreed-upon schedule for the search and processing of records responsive to the FOIA request submitted by Plaintiffs on July 29, 2014 to the National Security Division of the Department of Justice. In the event that that the parties cannot reach an agreement as to the search and processing schedule, they will each submit their respective proposed schedules to the Court for a decision. 3. Defendants will file their Answer to the, Second Amended Complaint no later than thirty days after it is filed. 4. Nothing in this Stipulation shall affect existing orders of the Court setting certain deadlines for Defendants' search, review, and processing of potentially responsive documents.

PREET BHARARA United States Attorney Sout District ofNew York

Patrick Toomey Alexander Abdo Ameripan Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10005 Phone: (212) 549-2500 Fax: (212) 549-2654

· Jones . . Jean-David Barnea
Assistant United States Attorneys Southern District ofNew York 86 Chambers Street, Third Floor New York, NY 10007
Counsel for the Defendants

David A. Schulz Jonathan M. Manes Conor Clarke (law student intern) Ajay Ravichandran (law student intern) Nicholas Handler (law student intern) Media Freedom and Information Access Clinic Yale Law School

2

Case 1:13-cv-09198-AT Document 43 Filed 10/30/14 Page 3 of 3 P.O. Box 208215 New Haven, CT 06520 (212) 850-6103 Counsel for the Plaintiffs SO ORDERED. Dated: October 30, 2014
New York, New York ANALISA TORRES
United States District Judge
3

 
 Case 1:13-cv-09198-KMW Document 50 Filed 03/16/15 Page 1 of 4

ji9NWJ, CL.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

AMERICAN CIVIL LIBERTIES UNION, and AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
Plaintiffs,
v.
NATIONAL SECURITY AGENCY, CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, and DEPARTMENT OF STATE,

USDCSDNY DOCUMENT ELECTRONICALLY FILED DOC #:_ _--::o:-:--:-:---:-
DATE FILED: :5/16/ Z...c.l I~ I
13 Civ. 9198 (AT)

Defendants.

STIPULATION AND ORDER REGARDING NSD DOCUMENT SEARCHES AND PRODUCTION WHEREAS, on May 13, 2013, Plaintiffs the American Civil Liberties Union and the American Civil Liberties Union Foundation (together, "Plaintiffs") made requests (the "First Request") pursuant to the Freedom oflnformation Act ("FOIA") to the above-captioned government agencies and components thereof (collectively, "Defendants"), including, as relevant here, the Department of Justice's National Security Division ("NSD"), relating to Executive Order ("EO") 12,333, and activities undertaken pursuant to that authority; WHEREAS, on December 30, 2013, Plaintiffs filed a complaint in the instant action against Defendants, including the Department of Justice, seeking to compel Defendants to process the First Request and to release all responsive records;

{00718788;vl}

Case 1:13-cv-09198-KMW Document 50 Filed 03/16/15 Page 2 of 4

WHEREAS, on May 12, 2014, the Court entered a stipulated order, pursuant to which NSD agreed to "search for and process all documents responsive to the original FOIA Request submitted to it by Plaintiffs;"
WHEREAS, on May 15, 2014, NSD responded by letter to the First Request and stated that it had no responsive records;
WHEREAS, on July 29, 2014, Plaintiffs filed a second FOIA request with NSD (the "Second Request");
WHEREAS, on October 31, 2014, Plaintiffs filed a second amended complaint in this action with Defendants' consent, adding the Second Request to the FOIA requests that are the subject of this action;
WHEREAS, on November 17, 2014, the Court granted the parties' joint proposed scheduling order for NSD's processing of the Second Request, ordering March 13, 2015, as the deadline for NSD to complete its production of documents in response to the Second Request;
AND WHEREAS, the parties have engaged in discussions in an attempt to reach agreement on the scope of searches that NSD will undertake and the timing of its response to the Second Request;
NOW, THEREFORE, it is hereby STIPULATED and AGREED between the parties as follows:
1. Date Limitations for Document Searches. a. With respect to the categories of documents described in Paragraphs 1-3 of the Second Request, NSD will search for and process only documents that are currently in use or effect, or that were created or modified on or after September 11, 2001.

{00718788;vl}

2

Case 1:13-cv-09198-KMW Document 50 Filed 03/16/15 Page 3 of 4
b. With respect to the categories of documents described in Paragraph 4 of the Second Request, NSD will search for and process only documents that are currently in use or effect.
c. With respect to the categories of documents described in Paragraph 5 of the Second Request, NSD will initially search for and process only documents created or modified on or after September 11, 2001; after the completion of NSD 's production of these documents, the parties agree to continue their discussions regarding whether searches for documents created before September 11, 2001 will be undertaken, including whether conducting such searches would be unduly burdensome to NSD.
2. Document Production Deadlines. By May 1, 2015, NSD shall complete its processing of the Second Request and produce all documents, or portions thereof, it deems to be responsive and non-exempt. By March 13, 2015, NSD shall make an interim production that includes any documents for which it does not need to consult with other agencies.
3. Nothing in this Stipulation and Order, including the fact of its entry, should be taken as a concession by NSD that Plaintiffs have "substantially prevailed" in this action in whole or in part, as that term is used in 5 U.S.C. § 552(a)(4)(E). Dated: New York, New York
March 11:_, 2015 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
By:~~ ~i Patrick Toomey AlexAbdo 125 Broad Street, 18th Floor
3

Case 1:13-cv-09198-KMW Document 50 Filed 03/16/15 Page 4 of 4

Dated: New H~>)en, Connecticut MarchLJ--, 2015
Dated: New York, New York March~, 2015 ·
SO ORDERED: ANALISA TORRES
United States District Judge

New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654 Email: agorski@aclu.org
MEDIA FREEDOM AND INFORMATION ACCESS CL IC
By: avid A. Schulz
Jonathan M. Manes P.O. Box. 208215 New Haven, CT 06520 (212) 850-6103
Counsel for Plaintiffs

PREET BHARARA

United States Attorney for the

Southern District ofNew York

By:

2iDY~~/-

David S. Jones

Jean-David Bamea

Assistant United States Attorneys

86 Chambers Street, Third Floor

New York, New York 10007

Telephone: (212) 637-2739/2679

Facsimile: (212) 637-2730

E-mail: david.jones6@usdoj .gov

jean-david.barnea@usdoj.gov

Counsel for Defendants

March 16, 2015 Date
4

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK AMERICAN CIVIL LIBERTIES UNION, and AMERICAN CIVIL LIBERTIES UNION FOUNDATION,

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED DOC#:
DATE FILED: 3/ J.-3-f/1-.-

Plaintiffs,

-against-
NATIONAL SECURITY AGENCY, CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, and DEPARTMENT OF STATE,

13 Civ. 09198 (KMW) (JCF)
MEMORANDUM OPINION AND ORDER

Defendants.

KIMBA M. WOOD, District Judge:

Plaintiffs, the American Civil Liberties Union and the American Civil Liberties Union

Foundation, bring this action challenging the nondisclosure of information requested by

Plaintiffs pursuant to the Freedom oflnformation Act, 5 U.S.C. § 552 ("FOIA"), from

Defendants, the United States National Security Agency ("NSA"), the United States Central

Intelligence Agency ("CIA"), the United States Department of Defense ("DoD"), the United

States Department of Justice ("DOJ"), and the United States Department of State ("State"). The

parties each move for partial summary judgment on the adequacy of certain agencies' searches

and the applicability of certain FOIA exemptions to 150 responsive documents that were

partially or fully withheld by Defendants. Over the course of briefing these motions, the parties

narrowed the range of disputes and focused on certain issues. The Court's discussion below

follows the structure of the parties' briefing and is intended to further narrow the range of open

issues. For the reasons stated below, Defendants' motion is GRANTED in part and DENIED in

part, and Plaintiffs' motion is DENIED without prejudice.

1

I. BACKGROUND A. Executive Order 12,333
On December 4, 1981, President Ronald Reagan signed Executive Order 12,333 ("EO 12,333"), to "provide for the effective conduct of United States intelligence activities and the protection of constitutional rights." 46 Fed. Reg. 59,941,59,941 (Dec. 4, 1981), amended by E.O. 13,284, 68 Fed. Reg. 4077 (Jan. 23, 2003), E.O. 13,355, 69 Fed. Reg. 53,593 (Aug. 27, 2004), and E.O. 13,470, 73 Fed. Reg. 45,328 (July 30, 2008), https://www.cia.gov/aboutcia/eo12333.html. The executive order stated that"[t]imely, accurate, and insightful information about the activities, capabilities, plans, and intentions" of foreign entities is "essential to informed decisionmaking in the areas of national security, national defense, and foreign relations," such that"[c]ollection of such information is a priority objective and will be pursued in a vigorous, innovative, and responsible manner that is consistent with the Constitution and applicable law and respectful of the principles upon which the United States was founded." E.O. 12,333 § 2.1. E.O. 12,333 is one ofthe primary authorities that allow agencies ofthe intelligence community, such as the NSA and other Defendants, to gather foreign intelligence. See, e.g., NSA, Frequently Asked Questions, http://nsa.gov/about/faqs/oversight-faqs.shtml. The Order allows for the collection, retention, and dissemination of information concerning United States citizens, at home and abroad, in certain limited situations, such as information obtained incidentally to a lawful foreign intelligence investigation. E.O. 12,333 § 2.3(C); see also id. §§ 2.3 to .4. Questions have been raised about whether agencies such as the NSA have been collecting data about U.S. citizens that are only tangentially related to foreign investigations. See Pl. Mem. 1-3, ECF No. 70. 1
1See also, e.g., John Napier Tye, Meet Executive Order 12333: The Reagan Rule that Lets the NSA Spy on Americans, Wash. Post (July 18, 2014), https://www.washingtonpost.com/opinions/meet-executive-order-12333-
2

B. The FOIA Requests
On May 13, 2013, Plaintiffs served substantially similar FOIA requests on seven federal
entities: CIA; State; NSA; the Defense Intelligence Agency ("DIA''), an agency within DoD; and
three divisions ofDOJ: the Federal Bureau of Investigation ("FBI"), the National Security
Division ("NSD"), and the Office ofLegal Counsel ("OLC"). Second Am. Compl. ~ 18, ECF
No. 44. The request sought from each agency records (1) construing or describing the scope of
that agency's authority under E.O. 12,333; (2) describing the minimization procedures used by
the agency; and (3) describing the standards that must be satisfied for collecting, acquiring, or
intercepting communications. Id. ~ 19.
After corresponding with the agencies and exhausting administrative remedies, Plaintiffs
filed this case on December 30,2013, ECF No.1, and an amended complaint on February 18,
2014, ECF No. 17. In a stipulation filed on May 9, 2014, the parties agreed to limit the scope of
the FOIA requests. ECF No. 30 ("Stipulation"). The Stipulation required NSA, CIA, DIA, FBI,
and State to search for and produce five categories of documents:
a. Any formal regulations or policies relating to that Agency's authority under EO 12,333 to undertake "Electronic Surveillance" (as that term is defined in EO 12,333) that implicates "United States Persons" (as that term is defined in EO 12,333), including regulations or policies relating to that Agency's acquisition, retention, dissemination, or use of information or communications to, from, or about United States Persons under such authority.
b. Any document that officially authorizes or modifies under EO 12,333 that Agency's use of specific programs, techniques, or types of Electronic Surveillance that implicate United States Persons, or documents that adopt or modify official rules or procedures for the Agency's acquisition, retention, dissemination, or use of information or communications to, from, or about United States persons under such authority generally or in the context of particular programs, techniques, or types of Electronic Surveillance.
the-reagan-rule-that-lets-the-nsa-spy-on-americans/20 14/07118/93d2ac22-0b93-11 e4-b8e5d0de80767fc2_story.html. But see Alexander W. Joel, The Truth About Executive Order 12333, Politico (Aug. 18, 20 14), http://www.politico.com/magazine/story/2014/08/the-truth-about-executive-order-12333-110121.
3

c. Any formal legal opinions addressing that Agency's authority under EO 12,333 to undertake specific programs, techniques, or types of Electronic Surveillance that implicates United States Persons, including formal legal opinions relating to that Agency's acquisition, retention, dissemination, or use of information or communications to, from, or about United States Persons under such authority generally or in the context of particular programs, techniques, or types of Electronic Surveillance.

d. Any formal training materials or reference materials (such as handbooks, presentations, or manuals) that expound on or explain how that Agency implements its authority under EO 12,333 to undertake Electronic Surveillance that implicates United States Persons, including its acquisition, retention, dissemination, or use of information or communications to, from, or about United States Persons under such authority.

e. Any formal reports relating to Electronic Surveillance under EO 12,333 implicating United States Persons, one of whose sections or subsections is devoted to (1) the Agency's compliance, in undertaking such surveillance, with EO 12,333, its implementing regulations, the Foreign Intelligence Surveillance Act, or the Fourth Amendment; or (2) the Agency's interception, acquisition, scanning, or collection of the communications of United States Persons, whether "incidental" or otherwise, in undertaking such surveillance; and that are or were:

1.

Authored by the Agency's inspector general or the functional

equivalent thereof;

11. Submitted by the Agency to Congress, the Office of the Director of

National Intelligence, the Attorney General, or the Deputy Attorney

General; or

111. Maintained by the office of the Agency's director or head.

Stipulation ,-r 3. For the first three categories, the parties agreed that each agency would search

for and provide documents "currently in use or effect, or that were created or modified on or

after September 11, 2001." Id. ,-r 7(a). For the fourth category, each agency would search for

and provide documents "currently in use or effect." Id. ,-r 7(b). For the fifth category, each

agency would initially search for and provide documents created or modified on or after

September 11, 2001, after which the parties would confer about whether searching for older

documents could be undertaken without being unduly burdensome. Id. ,-r 7(c). The parties also

agreed to limit CIA's search to certain offices for certain of the requests. Id. ,-r 6.

4

Plaintiffs and NSD separately refined the FOIA request, and, by letter dated July 29, 2014, Plaintiffs submitted a new FOIA request that substantially mirrored the requests in the Stipulation. See Decl. of John Bradford Wiegmann ("NSD Decl.") ,-r 6, ECF No. 65; see also Stipulation ,-r 4; ECF No. 50.
Plaintiffs and OLC separately agreed to narrow the scope of the FOIA request. Stipulation ,-r 2. OLC agreed to search for and produce "[a]ll OLC final advice" that concerned: (1) "the scope and application of the authority of the United States Government to conduct electronic surveillance of the communications ofUnited States persons pursuant to Executive Order 12333," and (2) "the meaning of the terms 'collection', 'acquisition', and 'interception' as applied to electronic surveillance conducted pursuant to Executive Order 12333." Second Am. Compl. Ex. C, at 1, 3.
Following each agency's search and production, which concluded May 1, 2015, the parties discussed their disagreements regarding the lawfulness of the agencies' withholdings and redactions and the adequacy of the agencies' searches. Joint Letter 1, ECF No. 52. By joint letter dated December 8, 2015, the parties proposed cross-motions for partial summary judgment related to the agencies' searches and a set of 177 documents that were partially or fully withheld. Id. at 2; see also Def. Mem. Ex. A, ECF No. 59; Decl. of Jonathan Manes ("Manes Decl.") Ex. A ("Pl. Index"), ECF No. 71. Specifically, Plaintiffs contend that four categories of documents were improperly withheld: formal legal memoranda, Inspector General and compliance reports, Rules and Regulations, and training and briefing materials. Pl. Mem. 5-9; see also Pl. Index. The letter states that should the Court find that the searches or withholdings were improper, Defendants would agree to conduct further searches or re-process the document withholdings, as appropriate. Joint Letter 2.
5

In their reply memorandum dated July 8, 2016, Defendants notified the Court that State had identified an additional set of documents that it needed to review for responsiveness to Plaintiffs' FOIA request. See Def. Reply Mem. 56-57, ECF No. 75; Suppl. Decl. of Erin F. Stein
("Suppl. State Decl.") ,-r 2, ECF No. 81. On August 18,2016, the Court gave Defendants
additional time to review those documents for responsiveness. ECF No. 83. By letter dated September 26, 2016, Defendants notified the Court that State had completed its review and located no additional documents responsive to the FOIA request. ECF No. 86. This case was transferred to the undersigned on November 22, 2016.
II. LEGALSTANDARD
A. Summary Judgment A moving party is entitled to summary judgment when the record shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004). A genuine dispute exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Material facts are those that, under the governing law, may affect the outcome of a case. Id. The moving party must establish the absence of a genuine dispute of material fact by citing to particulars in the record. Fed. R. Civ. P. 56(a), (c); Celotex, 477 U.S. at 322-25; Koch v. Town ofBrattleboro, 287 F.3d 162, 165 (2d Cir. 2002). Ifthe movant satisfies this burden, the opposing party must then "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). When deciding the motion, the Court must view the record in the light most favorable to the non-moving party, 0 'Hara v.
6

Weeks Marine, Inc., 294 F.3d 55, 61 (2d Cir. 2002), although speculation and conclusory assertions are insufficient to defeat summary judgment, see Niagara Mohawk Power Corp. v. Jones Chern. Inc., 315 F.3d 171, 175 (2d Cir. 2003).
B. FOIA "Congress intended FOIA to 'permit access to official information long shielded unnecessarily from public view,'" Milner v. Dep 't ofthe Navy, 562 U.S. 562, 565 (2011) (quoting EPA v. Mink, 410 U.S. 73, 80 (1973)), and accordingly FOIA "calls for 'broad disclosure of Government records,"' NY. Times Co. v. US. Dep 't ofJustice, 756 F.3d 100, 111 (2d Cir. 2014) (quoting CIA v. Sims, 471 U.S. 159, 166 (1985)). The Government's disclosure obligation is subject to a number of statutory exemptions. Id. "However, 'consistent with the Act's goal of broad disclosure, these exemptions have consistently been given a narrow compass."' Id. (quoting Dep 't ofInterior v. Klamath Water Users Protective Ass 'n, 532 U.S. 1, 8 (2001)). FOIA cases are regularly resolved on summary judgment. "In order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate and that any withheld documents fall within an exemption to the FOIA." Carney v. US. Dep 't ofJustice, 19 F.3d 807, 812 (2d Cir. 1994) (citations omitted). "[A]ll doubts as to the applicability of the exemption must be resolved in favor of disclosure." NY. Times, 756 F.3d at 112 (quoting Wilner v. NSA, 592 F.3d 60,69 (2d Cir. 2009)). When an agency withholds records and the requestor challenges such withholdings, the district court must "determine the matter de novo, and may examine the contents of ... agency records in camera to determine whether such records or any part thereof shall be withheld under any ofthe exemptions." 5 U.S.C. § 552(a)(4)(B). In Vaughn v. Rosen, the Court of Appeals for
7

the D.C. Circuit held that to adequately justify an alleged exemption, the Government should provide "a relatively detailed analysis in manageable segments." 484 F.2d 820, 826 (D.C. Cir. 1973). Thus, agencies submit Vaughn indexes listing withheld documents and claimed exemptions and Vaughn affidavits that describe the withheld documents and the rationale for withholding them. See ACLU v. US. Dep 't ofJustice, No. 13 Civ. 7347,2016 WL 5394738, at *4 (S.D.N.Y. Sept. 27, 2016). A Vaughn submission serves three functions:
[1] it forces the government to analyze carefully any material withheld, [2] it enables the trial court to fulfill its duty of ruling on the applicability of the exemption, [3] and it enables the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court. Halpern v. FBI, 181 F.3d 279,291 (2d Cir. 1999) (alterations in original) (quoting Keys v. US. Dep 't ofJustice, 830 F.2d 337, 349 (D.C. Cir. 1987)). "The titles and descriptions of documents listed in a Vaughn index usually facilitate the task of asserting and adjudicating the requester's challenges to the Government's claims of exemption" by "giv[ing] the court and the challenging party a measure of access without exposing the withheld information." NY. Times Co. v. US. Dep 't ofJustice, 758 F.3d 436, 439 (2d Cir.), supplemented by 762 F.3d 233 (2d Cir. 2014). Where "such declarations are 'not controverted by either contrary evidence in the record nor by evidence of agency bad faith,' summary judgment for the government is warranted." !d. (quoting Wilner, 592, F.3d at 73). "When the claimed exemptions involve classified documents in the national security context, the Court must give 'substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record."' NY Times, 756 F.3d at 112 (quoting ACLU v. Dep 't ofJustice, 681 F.3d 61, 69 (2d Cir. 2012)); see also Wilner, 592 F.3d at 76 ("[Courts] have consistently deferred to executive affidavits predicting harm to national security." (quoting Ctr. for Nat 'l Sec. Studies v. US. Dep 't ofJustice, 331 F.3d 918, 927
8

(D.C. Cir. 2003))). "Ultimately, an agency's justification for invoking a FOIA exemption is

sufficient if it appears logical or plausible." Wilner, 592 F.3d at 73 (quoting Larson v. Dep 't of

State, 565 F.3d 857, 862 (D.C. Cir. 2009)). Accordingly, "the government's burden is a light

one." ACLU v. US. Dep 't ofDef, 628 F.3d 612, 624 (D.C. Cir. 2011). However, Vaughn

submissions are insufficient where "the agency's claims are conclusory, merely reciting statutory

standards, or ifthey are too vague or sweeping." Quinon v. FBI, 86 F.3d 1222, 1227 (D.C. Cir. 1996) (quoting Hayden v. NSA, 608 F.2d 1381, 1387 (D.C. Cir. 1979)).

The legal standards applicable to the adequacy ofFOIA searches and the four FOIA

exemptions connected to these motions are discussed in the relevant sections below.

III. DISCUSSION

A. Adequate Searches

Plaintiffs challenge the adequacy of the searches conducted by CIA, FBI, and NSD. Pl.

Reply 38, 44-45, ECF No. 82.

1.

Legal Standard

"To prevail on summary judgment, ... the defending 'agency must show beyond material

doubt ... that it has conducted a search reasonably calculated to uncover all relevant

documents."' Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Weisberg v. US.

Dep 't ofJustice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). "The adequacy of a search is not

measured by its results, but rather by its method." NY Times, 756 F.3d at 124. "When a request

does not specify the locations in which an agency should search, the agency has discretion to

confine its inquiry to a central filing system if additional searches are unlikely to produce any

marginal return; in other words, the agency generally need not 'search every record system.'

However, an agency 'cannot limit its search to only one record system if there are others that are

9

likely to tum up the information requested.'" Campbell v. US. Dep 't ofJustice, 164 F.3d 20, 28 (D.C. Cir. 1998) (citation omitted) (quoting Oglesby v. US. Dep 't ofArmy, 920 F.2d 57, 68 (D.C. Cir. 1990)).
"[T]o establish the adequacy of a search, agency affidavits must be relatively detailed and nonconclusory, and submitted in good faith." Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 488-89 (2d Cir. 1999) (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)). "A reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched, is necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate in order to grant summary judgment." Oglesby, 920 F.2d at 68; see Iturralde v. Comptroller ofthe Currency, 315 F.3d 311, 313-14 (D.C. Cir. 2003). However, "the law demands only a 'relatively detailed and nonconclusory' affidavit or declaration." Adamowicz v. IRS, 402 F. App'x 648, 650 (2d Cir. 2010) (quoting Grand Cent., 166 F.3d at 488-89). "[A]n agency's search need not be perfect, but rather need only be reasonable," and the question is "whether the search was reasonably calculated to discover the requested documents." Grand Cent., 166 F.3d. at 489.
n. Application a. FBI
Plaintiffs lodge two objections to FBI's search for responsive records. First, Plaintiffs argue that FBI has "failed to provide adequate detail about which files were searched, by whom, using which search terms." Pl. Reply 39; see also Pl. Mem. 58. Second, Plaintiffs contend that FBI improperly limited its search to only a few divisions and units. Pl. Mem. 57; Pl. Reply 40.
10

An agency affidavit needs to be "reasonably detailed" in "setting forth the search terms and the type of search performed." Oglesby, 920 F.2d at 68. For instance, in Morley v. CIA, the D.C. Circuit found insufficient a declaration that described that a FOIA request was "divvied up between multiple component units within the CIA" but "provide[d] no information about the search strategies of the components charged with responding to" the request nor "any indication of what each directorate's search specifically yielded." 508 F.3d at 1122. Here, FBI tasked four separate units with searching for responsive documents, but provided no details about how the searches were undertaken. FBI merely states that it "designed and carried out a search tailored to the described scope of responsive records sought," Decl. ofDavid M. Hardy ("FBI Decl.") ,-r 23, ECF No. 63, but that "given the passage of time and the numerous individuals involved in its search, FBI is not in a position to detail all search steps taken by all of its tasked employees, but FBI tasked and gave appropriate search instructions to all relevant personnel and components, and ... FBI reasonably believes that the search was performed as tasked," Suppl. Decl. of David M. Hardy ("Suppl. FBI Decl.") ,-r 4, ECF No. 78. Although FBI is not required to detail all search steps taken, it must "supply more than 'glib government assertions of complete disclosure or retrieval.'" Nat '!Immigration Project ofthe Nat 'l Lawyers Guild v. US. Dep't ofHomeland Sec., No. 11 Civ. 3235, 2012 WL 6809301, at *1 (S.D.N.Y. Dec. 27, 2012) (quoting Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982)). As Plaintiffs rightly state, "searching for records without tracking how those searches are conducted makes it impossible for a reviewing court (or plaintiffs) to determine what the agency has actually done to search its files." Pl. Reply 40. FBI must, at the least, detail its search with greater specificity, and, if FBI is unable to do so, it may be necessary to conduct, and properly document, additional searches.
11

Second, Plaintiffs contend that FBI improperly limited its search to only five offices. FBI circulated the FOIA request to FBI's Corporate Policy Office, Counterintelligence Division, Counterterrorism Division, Training Division, and the Office ofthe General Counsel Discovery Processing Units. FBI Decl. ~~ 21-22. Plaintiffs note two additional divisions where, they suspect, additional documents may reside: the FBI Intelligence Branch, Pl. Reply 40,2 and the units outside of the Discovery Processing Units in the Office of the General Counsel, Pl. Mem. 58 n.22 ("It is unclear whether this search of the 'Discovery Processing Units' would encompass all of the responsive files in the [Office of the General Counsel], or solely those that happen to reside within that particular unit."). FBI has discretion to focus its inquiry if additional searches are unlikely to be fruitful, Campbell, 164 F.3d at 28, and has stated that the requests were sent to "locations where responsive documents were reasonably likely to be located," Suppl. FBI Decl. ~ 4. FBI has further stated that "[t]here is no indication from the information located as a result of the targeted searches of the specified FBI HQ Divisions/Units that responsible material would reside in ... any other location." FBI Decl. ~ 23. FBI has not, however, stated that "no other record system was likely to produce responsive documents." Oglesby, 920 F.2d at 68 (emphasis added). FBI should confirm that no other record system is likely to contain responsive documents, clarify the scope of the search conducted in the Office of the General Counsel, and address whether the Intelligence Branch is likely to produce responsive documents.
2 See also, e.g., FBI, About Us: Intelligence Branch, https://www.fbi.goY/about/leadership-andstructure/intelligence-branch ("[The Intelligence Branch] is the strategic leader of the FBI's Intelligence Program, driving collaboration to achieve the full integration of intelligence and operations and proactively engaging with the Bureau's partners across the intelligence and law enforcement communities.... The Intelligence Branch is responsible for all intelligence strategy, resources, policies, and functions.").
12

b. NSD Plaintiffs raise two objections to NSD's search. First, Plaintiffs note NSD's failure to provide any search terms used in identifying responsive documents. Pl. Mem. 57; Pl. Reply 42. Second, Plaintiffs take issue with NSD's method of identifying custodians by focusing exclusively on seven attorneys' files in two NSD offices. Pl. Mem. 56-57; Pl. Reply 41. For the reasons discussed above, NSD's failure to identify any search terms or methods makes summary judgment in its favor inappropriate. See, e.g., Morley, 508 F.3d at 1122. Accordingly, NSD is directed to explain its search with sufficient specificity, as outlined in this opmwn. Second, Plaintiffs challenge the scope of the NSD' s search. NSD has explained that "[there] is no central NSD record repository or searchable database that contains all responsive records" and thus identified seven current NSD attorneys who "have worked on issues concerning electronic surveillance under" E.O. 12,333, and stated that "no other NSD personnel were likely to have responsive records that these seven attorneys did not also have." NSD Decl. ~ 8; see also Suppl. Decl. of John Bradford Wiegmann ("Suppl. NSD Decl.") ~ 11, ECF No. 80. Six of these attorneys work in the NSD' s Office of Intelligence, and one attorney works in the NSD's Office of Law and Policy. NSD Decl. ~ 8. The NSD also searched through historical policy files, NSD Decl. ~ 9; Suppl. NSD Decl. ~ 11, and concluded that "it is unlikely that any additional sign(ficant records would be located in the files of another employee within the Office ofLaw and Policy," Suppl. NSD Decl. ~ 11 (emphasis added). This is insufficient: an agency may not limit a search because additional responsive documents may not be "significant." Oglesby, 920 F.2d at 68 (stating that agency affidavit must "aver[] that allfiles likely to contain responsive materials (if such records exist) were searched" (emphasis added)). In addition, the
13

time limitation agreed to in the Stipulation does not cover NSD, and the revised NSD FOIA request contains no time limitation whatsoever. See Second Am. Compl. Ex. G; Stipulation~~ 3, 7. The Court is not convinced that NSD's method, of searching only present employees and then one historical database, is "reasonably calculated to uncover all relevant documents." Morley, 508 F.3d at 1114. Accordingly, the Court cannot conclude that NSD's search was adequate.
c. CIA Plaintiffs identify two deficiencies with CIA's search: first, that CIA's explanation of its search methods-stating, for instance, that the agency "used broad search terms, such as '12333,"' Decl. of Antoinette B. Shiner ("CIA Decl.") ~ 10, ECF No. 60-is insufficient; and second, that CIA has provided insufficient detail about the repositories it searched. Pl. Mem. 5960; Pl. Reply 42-43. On the first issue, CIA contends that "CIA's search was so comprehensive that it 'uncovered a large volume of duplicative documents and non-responsive records."' Def. Reply 48 (quoting CIA Decl. ~ 11 ). However, like FBI and NSD, CIA has failed to provide sufficient information for Plaintiffs or the Court to reasonably assess the search efforts undertaken. See Morley, 508 F.3d at 1122; Oglesby, 920 F.2d at 68. Neither the Court nor Plaintiffs are able to evaluate or confirm whether the duplicative and non-responsive results were attributable to the search's comprehensiveness or, for example, human error. Given the lack of information about the search methods used, the Court can only speculate about whether CIA's efforts were reasonably expected to produce the information requested. See, e.g., Nat'l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 152-53 (D.D.C. 2013). The Court will therefore deny summary judgment to CIA on the adequacy of its search.
14

In describing the repositories it searched, CIA states that "CIA personnel consulted with

Agency officials knowledgeable about this subject matter to identify the relevant databases and

repositories containing such materials." CIA Decl. ,-r 9. CIA further describes the repositories in

terms such as "the database maintained by the [Office of General Counsel] Division that is

responsible for providing legal advice on complex or novel questions," "the relevant databases of

the [Office of General Counsel] Division and the front offices of the Agency directorates," or

"the relevant databases located in the Office of the Inspector General, the Office of

Congressional Affairs, and the Director's area." Id. ,-r 10. Agency affidavits should sufficiently

"'identify the searched files and describe at least generally the structure of the agency's file

system' which renders any further search unlikely to disclose additional relevant information."

Katzman v. CIA, 903 F. Supp. 434, 438 (E.D.N.Y. 1995) (quoting Church ofScientology v. IRS,

792 F.2d 146, 151 (D.C. Cir. 1986), aff'd, 484 U.S. 9 (1987)). CIA must, at the least, provide a

more complete explanation of the relevant databases that were searched.

* * *
Accordingly, Defendants' motion for summary judgment as to the adequacy of FBI's,

NSD's, and CIA's searches is DENIED.

B. Exemption 5

1.

Legal Standard

FOIA Exemption 5 protects from disclosure "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). "Stated simply," covered documents include those "which

would not be obtainable by a private litigant in an action against the agency under normal

discovery rules (e.g., attorney-client, work-product, executive privilege)." Tigue v. US. Dep 't of

15

Justice, 312 F.3d 70, 76 (2d Cir. 2002) (internal quotation marks and citation omitted). This exemption is "based on the policy of protecting the decision making processes of government agencies," and protects "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Brennan Ctr.for Justice v. US. Dep 't ofJustice, 697 F.3d 184, 194 (2d Cir. 2012) (internal quotation marks and citation omitted). Three privileges are asserted under Exemption 5: deliberative process privilege, attorney-client privilege, and presidential communication privilege.
"An inter- or intra-agency document may be withheld pursuant to the deliberative process privilege if it is: (1) 'predecisional,' i.e., 'prepared in order to assist an agency decisionmaker in arriving at his decision,' and (2) 'deliberative,' i.e., 'actually ... related to the process by which policies are formulated."' Nat'! Council ofLa Raza v. Dep 't ofJustice, 411 F.3d 350, 356 (S.D.N.Y. 2005) (quoting Grand Cent., 166 F.3d at 482); see also Grand Cent., 166 F.3d at 482 ("The privilege protects recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." (internal quotation marks and citation omitted)).
Although Defendants bear the burden of proving the applicability of an exemption, see Carney, 19 F.3d at 812, Plaintiffs overstate the burden of specificity required of Defendants in asserting the deliberative process privilege. Plaintiffs argue that each agency is required to list, for each document, "(1) the role of the author and recipient of each document; (2) the function and significance of the document in a decision-making process; (3) the subject-matter of the document and the nature of the deliberative opinion; and (4) the number of employees among whom the document was circulated." Pl. Reply 15 (citing Senate ofP.R. v. US. Dep 't ofJustice,
16

823 F.2d 574, 585 (D.C. Cir. 1987); Nat 'l Day Laborer Org. Network v. US. Immigration & Customs Enf't Agency, 811 F. Supp. 2d 713, 743 (S.D.N.Y. 2011); Auto. Club ofNY, Inc. v. Port Auth., 297 F.R.D. 55, 60 (S.D.N.Y. 2013)). Plaintiffs are correct that courts in this district have required that an agency state the "function and significance in the agency's decision[]making process." Nat 'l Day Larborer, 811 F. Supp. 2d at 743 (alteration in original) (quoting NY. Times Co. v. US. Dep 't ofDef, 499 F. Supp. 2d 501, 515 (S.D.N.Y. 2007)); see also Arthur Andersen & Co. v. IRS, 679 F.2d 254, 258 (D.C. Cir. 1982). However, the Second Circuit has held that, although an agency must "be able to demonstrate that, ex ante, the document for which executive privilege is claimed related to a specific decision facing the agency ... the fact that the government does not point to a specific decision ... does not alter the fact that the Memorandum was prepared to assist [agency] decisionmaking on a specific issue." Tigue, 312 F.3d at 80. In addition, Automobile Club's requirement that a privilege log should include, inter alia, the number of recipients of a document is based on Local Rule 26.2 governing discovery in civil cases; Plaintiffs have not cited, nor can the Court find, support to suggest that this rule governs Vaughn indexes in FOIA cases.
Defendants also assert attorney-client privilege. "The attorney-client privilege protects communications (1) between a client and his or her attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing legal assistance." Brennan Ctr., 697 F.3d at 207 (quoting United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011)). "[T]he attorney-client privilege protects most confidential communications between government counsel and their clients that are made for the purpose of obtaining or providing legal assistance." Id. (alteration in original) (quoting In re County ofErie, 473 F.3d 413, 418 (2d Cir. 2007)).
17

Plaintiffs criticize Defendants' Vaughn indexes and declarations as insufficient to justify attorney-client privilege because they do not reveal the "identities of the authors and those who received copies of the withheld documents." Pl. Mem. 31; see also id. at 32 (citing Mead Data Cent., Inc. v. U.S. Dep 't ofthe Air Force, 566 F.2d 242, 253-54 (D.C. Cir. 1977); Adamowicz, 552 F. Supp. 2d at 366); Pl. Reply 19-20. However, neither Mead nor Adamowicz requires so detailed a description. Mead rejected the assertion of attorney-client privilege because the Government gave "no indication as to the confidentiality of the information on which they are based." 566 F.2d at 253-54. Adamowicz found that the Government did not meet its burden of demonstrating attorney-client privilege where "through oversight or otherwise, [the Government failed to] actually state[] that the material withheld constitutes or reflects [attorney-client] communications." 552 F. Supp. 2d at 366. To meet their burden, Defendants need only indicate that the documents withheld as attorney-client communications are, indeed, confidential communications seeking or providing legal advice from government attorneys to their clients.
Finally, Defendants assert presidential communications privilege with respect to a narrow set of documents. "The privilege protects 'communications in performance of a President's responsibilities, ... of his office, ... and made in the process of shaping policies and making decisions."' Amnesty Int'l USA v. CIA, 728 F. Supp. 2d 479, 522 (S.D.N.Y. 2010) (alterations in original) (quoting Nixon v. Adm 'r ofGen. Servs., 433 U.S. 425, 449 (1977)). "The presidential communications privilege 'covers final and post-decisional materials as well as pre-deliberative ones."' !d. (quoting In reSealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997)). The privilege also protects communications involving senior presidential advisers, including "'both ... communications which these advisers solicited and received from others as well as those they authored themselves,' in order to ensure that such advisers investigate issues and provide appropriate advice to the President." !d. (quoting In reSealed Case, 121 F.3d at 752). The
18

privilege also extends to records memorializing or reflecting covered presidential communications. !d. (citing Citizens for Responsibility & Ethics v. US. Dep 't ofHomeland Sec., No. 06 Civ. 0173,2008 WL 2872183, at *3 (D.D.C. July 22, 2008)).
"The two long-recognized exceptions to Exemption 5 are: (1) adoption, i.e., 'when the contents of the document have been adopted, formally or informally, as the agency position on an issue or are used by the agency in its dealings with the public'; and (2) working law, i.e., 'when the document is more properly characterized as an opinion or interpretation which embodies the agency's effective law and policy."' ACLU, 2016 WL 5394738, at *6 (quoting Brennan Ctr., 697 F.3d at 195). "An 'opinion about the applicability of existing policy to a certain state of facts, like examples in a manual,' constitute working law and accordingly do not fall within the scope of the deliberative privilege. Documents that advise agency personnel of likely legal challenges and potential defenses, however, do not constitute working law." NY. Times v. US. Dep 't ofJustice, 101 F. Supp. 3d 310, 318 (S.D.N.Y. 2015) (citation omitted) (first quoting Coastal States Gas Corp. v. Dep 't ofEnergy, 617 F.2d 854, 868 (D.C. Cir. 1980); then citing Delaney, Migdail & Young, Chartered v. IRS, 826 F.2d 124, 127 (D.C. Cir. 1987)).
Plaintiffs take an overly broad view of what constitutes working law, particularly with respect to legal memoranda. Plaintiffs argue that "if the relevant policy-maker reviewed [a legal memorandum] and, on the basis of the analysis in that document, elected to take actions that [the memorandum's author] opined would be lawful, the underlying memo would become working law, as it would reflect the agency's vi~w of 'what the law is."' Pl. Reply 11 (internal quotation marks and citation omitted) (quoting Tax Analysts v. IRS, 117 F.3d 607, 617 (D.C. Cir. 1997)). On the contrary, the Second Circuit has explained that "the exemption 'properly construed, calls for disclosure of all opinions and interpretations which embody the agency's effective law and
19

policy, and the withholding of all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be."' Brennan Ctr., 697 F.3d at 196 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975)). An agency must disclose a "final opinion[]" or a "statement[] of policy and interpretations which [has] been adopted by the agency." !d. at 201 (quoting Sears, 421 US. at 153). Reports or recommendations that have "no operative effect" do not need to be disclosed even where the agency action agrees with the conclusion of the report or recommendation. Id. (quoting Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184 (1975)).
n. Application Plaintiffs contest the assertion of Exemption 5 privileges with respect to 109 documents that were withheld in full and 4 documents that were released with redactions. Pl. Mem. 15. Plaintiffs have raised four issues regarding Exemption 5. They contend that Defendants have failed to satisfy their burden ofjustifying either the deliberative process privilege or the attorneyclient privilege. !d. 26-32. Plaintiffs also argue that the documents contain working law, thus falling into an exception to Exemption 5. Id. 16-26. Finally, Plaintiffs claim that Defendants have failed to justify their withholdings under the presidential communications privilege. Id. 15 n.4; Pl. Reply 20-22. The parties discuss deliberative process privilege with respect to documents from CIA, NSA, NSD, and OLC. See Def. Mem. 49-55 (discussing CIA, DIA, NSD, OLC, and NSA); see also Def. Reply 24 (DIA waiving its reliance on Exemption 5). Each of these is discussed in tum.
a. OLC The Court finds that OLC has sufficiently justified its exemptions under the deliberative process and attorney-client privileges. Courts routinely find that OLC legal memoranda are
20

protected by the deliberative process privilege. See, e.g., NY. Times Co. v. US. Dep 't ofJustice, 806 F.3d 682, 685-87 (2d Cir. 2015); Brennan Ctr., 697 F.3d at 202-03. In addition, the Honorable Royce C. Lamberth of the United States District Court for the District of Columbia held that three ofthe documents at issue-OLC 4, 8, and 10-were properly withheld under Exemptions 1, 3, and 5 after in camera review. Def. Mem. 36 (citing Elec. Privacy Info. Ctr. v. US. Dep 't ofJustice, Nos. 06 Civ. 96, 06 Civ. 214, 2014 WL 1279280 (D.D.C. Mar. 31, 2014)). OLC's index describes the documents in question as legal memoranda, or cover notes to legal memoranda, regarding contemplated intelligence activities under E.O. 12,333. Decl. of Paul P. Colborn ("OLC Decl.") Ex. A, ECF No. 67; see also OLC Decl. ,-r,-r 21, 27. Further, Plaintiffs do not mention OLC's invocation of these privileges in their opening memorandum. See Pl. Mem. 26-30 (discussing deliberative process privilege with respect to only CIA, DIA, NSA, and NSD). Accordingly, OLC has sufficiently justified that these documents are protected by the deliberative process and attorney-client privileges.
Plaintiffs argue that these OLC legal memoranda contain working law and are therefore not subject to Exemption 5. Pl. Mem. 18-26. In general, as the Second Circuit has recently held, OLC memoranda are not working law unless expressly adopted: "At most, they provide, in their specific contexts, legal advice as to what a department or agency 'is permitted to do,' but OLC 'did not have the authority to establish the "working law" of the [agency],' and its advice 'is not the law of an agency unless the agency adopts it."' NY. Times, 806 F.3d at 687 (alteration in original) (quotingElec. Frontier Found. v. US. Dep'tofJustice, 739 F.3d 1, 8, 10 (D.C. Cir. 2014)). As the OLC declaration explains, "OLC provides advice and prepares opinions addressing a wide range oflegal questions involving the operations of the Executive Branch. OLC does not purport to make policy decisions, and in fact lacks authority to make such
21

decisions. OLC's legal advice and analysis may inform the decisionmaking of Executive Branch officials on matters of policy, but OLC' s legal advice is not itself dispositive as to any policy adopted." OLC Decl. ,-r 2.
Although Plaintiffs argue that these memoranda were relied upon as part of the regular reauthorization of the STELLAR WIND warrantless wiretapping program, there is no indication that these memoranda were "adopted, formally or informally, as the agency position on an issue" or "used by the agency in its dealings with the public." Brennan Ctr., 697 F.3d at 195 (quoting La Raza, 411 F.3d at 356).
For example, document OLC 2 is a memorandum written by Theodore Olson in 1984. Plaintiffs discuss a 2007 memorandum-not produced as part of this litigation, but which has been published in the press-that quotes from OLC 2 to argue that OLC 2 contains working law. Hanes Decl. ,-r 10 & Ex. G; see also Pl. Mem. 24-25. However, the 2007 memorandum does not support Plaintiffs' argument. The 2007 memorandum cites the Olson memorandum as an example of support for the proposition that "analysis of information legally within the possession of the Government is likely neither a 'search' nor a 'seizure' within the meaning of the Fourth Amendment." Hanes Decl. Ex. G, at 4 n.4. The 2007 memorandum goes on to state that, "[i]n an abundance of caution, then, we analyze the constitutional issue on the assumption that the Fourth Amendment may apply even though the Government has already obtained the information lawfully." Id. The very fact that the 2007 memorandum conducts a Fourth Amendment inquiry is indicative that the 1984 memorandum was not "adopted, formally or informally, as the agency position on an issue." Brennan Ctr., 697 F.3d at 195. Instead, this citation to the Olson memorandum is among the "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are
22

formulated" that lie at the heart of Exemption 5. Sears, Roebuck, 421 U.S. at 150 (quoting Carl Zeiss Stiflung v. V. E. B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966)).
Therefore, Defendant's motion for summary judgment is GRANTED with respect to Exemption 5 and the OLC memoranda.
b. NSD NSD asserts Exemption 5 with respect to thirteen contested documents. See Def. Index 2. The documents are grouped below based on their content. NSD 2 is a "draft of the DHS Procedures Governing Activities of the Office of Intelligence and Analysis that Affect United States Persons.... The Attorney General subsequently declined to approve the draft procedures submitted by the Secretary of Homeland Security and inter-agency negotiations over the content of these procedures remain ongoing to this day." Decl. of Arthur R. Sepeta ("DHS Decl.") ~ 12, ECF No. 61. This document is clearly deliberative and pre-decisional. The Government has satisfied its burden to justify its withholding. Further, as a draft document where no policy has been made, this document could not have been adopted or become working law. Accordingly, this document is properly withheld. NSD 9 and 36 are "classified OLC legal advice memoranda," similar to the other OLC memoranda discussed above. OLC Decl. ~ 20. NSD 9 contains "OLC Legal Advice Memorandum to FBI General Counsel," and NSD 36 contains "OLC Legal Advice Memorandum on an NSA Program." NSD Decl. Ex A ("NSD Vaughn Index"), at 2, 6-7. Like the OLC memoranda discussed above, these documents are protected, at the least, by attorneyclient privilege. As there is no indication that these documents contain working law or have been expressly adopted, they have been properly withheld.
23

NSD 18 is a "memorandum from the Attorney General to the President that reveals advice and recommendations relating to an NSA program." Decl. of Christina M. Butler ("OIP Decl.") ,-r 9, ECF No. 66. In addition to asserting deliberative process privilege, Defendants assert presidential communications privilege, which Plaintiffs do not contest except to the extent that they argue that the privilege is voided by the working law doctrine. See Pl. Mem. 15 n.4. However, because the presidential communications privilege protects "final and post-decisional materials as well as pre-deliberative ones," In reSealed Case, 121 F.3d at 745, the working law exception does not apply to the presidential communication privilege. Indeed, Plaintiffs do not mention NSD 18 in their reply brief. See generally Pl. Reply. Accordingly, NSD 18 has been properly withheld.
NSD 17, much ofNSD 4, and some ofNSD 31 "discuss legal issues pertaining to an NSA program, set forth legal advice prepared by NSD lawyers for other attorneys to assist those other attorneys in representing the Government, and were sought by a decision-maker for the Government to obtain legal advice on questions oflaw and indeed reflect such advice." NSD Decl. ,-r 14; Decl. of David J. Sherman ("NSA Decl.") ,-r,-r 45-46, ECF No. 64. See generally Classified NSA Decl. Even assuming, as Plaintiffs argue, that NSD adopted the recommendations outlined in these legal memoranda, these memoranda do not automatically become the working law of the agency. See Brennan Ctr., 697 F.3d at 196; see also Suppl. NSD Decl. ,-r 10 ("NSD Document 4 is a recommendation memo; it does not have the force and effect of law within the Department, and it has not been adopted by the Department as a governing policy.... I am unaware of any official acknowledgment or release ofNSD Document 4."). Exemption 5 applies to these documents and excerpts, and they were properly withheld.
24

NSD 12, 13, 14, 23, 33, and 49 are "memoranda from NSD attorneys to other Government attorneys, and they provide advice with respect to one or more NSA programs or other intelligence activities." NSD Decl. ~ 15. See generally Classified NSA Decl. "The vast majority of these memoranda constitute legal advice prepared by NSD Lawyers to assist other attorneys who represented the Government. As a result, the vast majority of the memoranda are protected from disclosure under the attorney-client privilege." NSD Decl. ~ 15 (emphases added). Similarly, the NSD Declaration states that the "vast majority of the memoranda contained in NSD 12, 13, 14, 23, 33, and 49" are pre-decisional and deliberative. NSD Decl. ~18 (emphasis added). Accordingly, the Court cannot conclude that the attorney-client privilege or the deliberative process privilege applies to each of these documents in their entirety. The NSD is directed to supplement its submissions with detail about what portions of these documents do, and do not, contain legal advice or deliberative and pre-decisional analysis.
Therefore, Defendants' motion for summary judgment is GRANTED with respect to Exemption 5 for NSD 2, 4, 9, 17, 18, and 36, and DENIED with respect to Exemption 5 for NSD 12, 13, 14, 23, 33, and 49.
c. CIA CIA asserts Exemption 5 with respect to memoranda, correspondences, and other documents, marked CIA 13 to CIA 94, that were withheld in full. See Def. Index 1. First, the Court notes that CIA's Vaughn index does not appear to assert Exemption 5 with respect to CIA 30 or 77, and these documents are discussed below regarding Exemptions 1 and 3. See generally CIA Decl. Ex. A ("CIA Vaughn Index"). CIA asserts deliberative process privilege and/or attorney-client privilege as to 74 legal memoranda: CIA 13-21,23-29, 31-35,37-41,44,47-76, and 78-94. Id. These documents
25

conveyed legal advice "by attorneys in the CIA's Office of General Counsel to Agency employees and by Department of Justice attorneys to CIA officials," CIA Decl. ~ 23, and contain "factual information supplied by the clients in connection with their requests for legal advice, discussions between attorneys that reflect those facts, and legal analysis and advice provided to the clients," id. ~ 26. The Court is satisfied that these documents are protected by attorney-client privilege and therefore need not also evaluate the deliberative process privilege. Plaintiffs contend that these documents may contain working law, as "the Office of General Counsel can and typically does establish the final legal position of the agency." Pl. Reply 12. In response, the CIA states that "CIA 13-21, 23-35, 37-41, 44, 47-76, 78, 79, [and] 92-94" are "not controlling interpretations of policy that the Agency relies upon in discharging its mission" but instead contain legal advice that "served as one consideration, among others, weighed by Agency personnel in deciding whether to undertake a particular intelligence activity." Suppl. Decl. of Antoinette B. Shiner ("Suppl. CIA Decl.") ~ 3, ECF No. 76. Given this description, the Court finds that these documents do not constitute working law, and their being withheld was proper.
However, the omission of CIA 80-91 suggests that perhaps those memoranda do not fit the description above. CIA is invited to further supplement its description of these documents to better describe these documents so that the Court may determine whether these documents constitute working law. See, e.g.,ACLU, 2016 WL 5394738, at *13 ("Ifthe agency fails to provide a sufficiently detailed explanation to enable the district court to make a de novo determination of the agency's claims of exemption, the district court then has several options, including inspecting the documents in camera, requesting further affidavits, or allowing the plaintiff discovery.").
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CIA withheld four documents under the deliberative process privilege but not the
attorney-client privilege: CIA 42, 43, 45, and 46. See CIA Vaughn Index. These documents are
described in CIA's Vaughn index as "[c]lassified talking points and presentation notes prepared for briefing on E.O. 12333." !d. at 19-21. CIA describes these documents as:
[T]alking points and outlines used by presenters who provided instruction on the legal requirements ofE.O. 12333. They are not polished pieces, prepared remarks intended to be delivered as written, or handouts provided to trainees. Rather, these documents served as presentation tools for only the presenters that contained potential responses, legal examples and points to be made should certain questions arise. As such, these documents served as informal outlines or talking points that, although not necessarily linked to specific proposals or decisions, provided guidance on E.O. 12333 intended to inform subsequent Agency decision-making regarding the use of specific authorities.
CIA Decl. ~ 24. The Court notes that ifthese documents are as informal as CIA suggests, they would not be responsive to the FOIA request, which sought "formal training materials or reference materials (such as handbooks, presentations, or manuals)." Stipulation~ 3. Given this description, the Court cannot conclude that Exemption 5 applies: for the exemption to apply, an
agency must "be able to demonstrate that, ex ante, the document for which executive privilege is claimed related to a specific decision facing the agency," which these training materials do not
do. Tigue, 312 F.3d at 80. Further, even ifthe deliberative process privilege applied, these
documents may reflect working law. SeeN. Y Times, 101 F. Supp. 3d at 318 ("An 'opinion about the applicability of existing policy to a certain state of facts, like examples in a manual,'
constitute working law ...."(quoting Coastal States Gas Corp., 617 F.2d at 868)).
Accordingly, Defendants have not met their burden with respect to CIA 42, 43, 45, and 46.
Defendants assert the deliberative process privilege and the presidential communications
privilege with respect to CIA 22. CIA 22 is a "classified correspondence between CIA and the National Security Council providing guidance on a particular issue." Suppl. CIA Decl. ~ 9. This
27

document contains "several memos-a memorandum from the White House, a memorandum written from the Director of the CIA to the National Security Advisor recommending and requesting certain action, and internal Agency correspondence preceding those memos." Id. These communications include an "authorization request by the CIA Director to a White House official, and the White House's communication back to CIA of the President's grant ofthe authorization in question, whose nature is classified." Def. Reply 31. Although the presidential communications privilege "could attach to communications to and from ... officials at the highest levels ... at the National Security Council," ACLU v. Dep 't ofJustice, No. 15 Civ. 1954, 2016 WL 889739, at *4 (S.D.N.Y. Mar. 4, 2016), this privilege "should be construed ... narrowly," id. (quoting In ReSealed Case, 121 F.3d at 752). Accordingly, the Court concludes that only the two memoranda to or from the National Security Advisor are protected by the presidential communications privilege. The preceding internal memoranda, however, are therefore clearly protected by the deliberative process privilege. As internal legal memoranda preceding a formal recommendation to the White House, it is unlikely that these memoranda contain working law. CIA 22 was properly withheld.
Finally, Defendants assert the presidential communications privilege regarding CIA 36, which is a "[c]lassified correspondence from National Security Council to CIA providing guidance on a particular issue." CIA Vaughn Index 16. There is no indication that the correspondence was sent from the National Security Advisor or any other high level National Security Council official nor any indication that it sent or received as part of presidential decisionmaking. See ACLU, 2016 WL 889739, at *4. Construing the privilege narrowly, Defendants have not met their burden ofjustifying the presidential communications privilege with respect to CIA 36.
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Therefore, Defendants' motion for summary judgment regarding Exemption 5 is GRANTED with respect to CIA 13-29, 31-35, 37-41, 44, 47-76, 78, 79, and 92-94 and DENIED with respect to CIA 36, 42, 43, 45, 46, and 80-91.
d. NSA NSA asserts both attorney-client privilege and deliberative process privilege with respect to NSA 11 and 12 and attorney-client privilege regarding NSA 7, 14-21, and 28. NSA 11 and 12 contain "memoranda from NSD attorneys to other Government attorneys, and they provide advice with respect to one or more NSA programs or other intelligence activities." NSD Decl. ,-r 15. NSA 11 is a "legal memorandum written by DOJ concerning classified SIGINT [signals intelligence] activities and undertaken pursuant to E012333 and supporting documentation providing non-segregrable details of classified NSA COMINT [communications intelligence] activities, sources, and methods." NSA Decl. Ex. A ("NSA Vaughn Index"), at 2. NSA 12 consists of an "approval package for a classified NSA program, including a formal legal memorandum written by DOJ concerning classified COMINT activities undertaken pursuant to E012333 and supporting documentation providing non-segregable details of classified NSA COMINT activities, sources, and methods." Id. The "vast majority of the memoranda contained in ... NSA Documents 11 and 12 are ... 'pre-decisional' because they related to and preceded a final decision regarding one or more NSA programs or other intelligence activities. Further, ... the vast majority of the memoranda contained in ... NSA Documents 11 and 12 are 'deliberative' because they reflect ongoing deliberations by government attorneys on DOD procedures and one or more NSA programs." NSD Decl. ,-r 18 (emphasis added). Without more, Defendants cannot satisfy their burden that Exemption 5 applies to these two documents; Defendants are invited to supplement their submissions if they
29

wish to do so. However, Defendants also assert presidential communications privilege with respect to pages 2-4 and 30-38 ofNSA 12, which Plaintiffs do not contest, except to the extent that the privilege is voided by the working law doctrine. See Pl. Mem. 15 n.4. As discussed above, the working law doctrine does not vitiate the presidential communications privilege, and these pages are properly withheld.
Defendants assertattorney-clientprivilegeregardingNSA 7, 14, 15, 16, 17, 18, 19, 20, 21, and 28. These documents "contain correspondence between NSA [Office of General Counsel] and its internal clients, such as the Signals Intelligence Directorate, the NSA organization tasked with carrying out NSA's SIGINT mission." NSA Decl. ,-r 53. These communications "were made in order to provide legal advice to Agency clients on a variety of operational issues that arose under EO 12333, [and] the communications were made in confidence." Id. The Court is satisfied that these documents are protected by attorney-client privilege. The NSA further states that these documents "have not since been used to publically justify NSA actions or [have not been] expressly adopted as Agency policy." NSA Decl. ,-r 53 (emphasis added). This states the rule too narrowly. See Brennan Ctr., 697 F.3d at 195 (describing formal and informal adoption, including documents "more properly characterized as an opinion or interpretation which embodies the agency's effective law and policy," even if not done so publicly). The Court therefore cannot determine whether these documents contain working law or have not been adopted. Defendants are invited to supplement their submissions to address this point.
Accordingly, Defendants' motion for summary judgment on Exemption 5 is DENIED with respect to NSA 7, 11, 12, 14-21, and 28, except for pages 2-4 and 30-38 ofNSA 12, for which Defendants' motion is GRANTED.
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C. Exemptions 1 and 3

1.

Legal Standards

a.

Exemption 1

The Government may withhold records under Exemption 1 if the records are "(A)

specifically authorized under criteria established by an Executive order to be kept secret in the

interest of national defense or foreign policy and (B) are in fact properly classified pursuant to

such Executive order." 5 U.S.C. § 552(b)(1). Executive Order 13,526 sets forth the current

standard for classification, which lists four requirements: "(1) an original classification authority

[has classified] the information; (2) the information is owned by, produced by or for, or is under

the control of the United States Government; (3) the information falls within one or more of the

categories of information listed in section 1.4 ofthis order; and (4) the original classification

authority [has] determine[d) that the unauthorized disclosure of the information reasonably could

be expected to result in damage to the national security ... and the original classification

authority is able to identify or describe the damage." Exec. Order No. 13,526, § l.l(a)(1)-(4), 75

Fed. Reg. 707 (Dec. 29, 2009). Section 1.4 ofE.O. 13,526 protects, inter alia, information that

describes "intelligence activities (including covert action), intelligence sources or methods, or

cryptology"; "foreign relations or foreign activities of the United States, including confidential

sources"; and "vulnerabilities or capabilities of systems, installations, infrastructures, projects,

plans, or protection services relating to the national security." !d. § 1.4(c), (d), (g).

To satisfy its burden on summary judgment, the Government must establish through

affidavits "that it complied with proper procedures in classifying materials and that the withheld

information falls within the substantive scope" of a particular executive order. Amnesty Int 'l

USA, 728 F. Supp. 2d at 506 (citing Salisbury v. United States, 690 F.2d 966, 971-72 (D.C. Cir.

31

1982)). These affidavits must "contain sufficient detail to forge the logical connection between the information [withheld] and [Exemption 1]." !d. (alterations in original) (quoting Physicians for Human Rights v. US. Dep 't ofDef, 675 F. Supp. 2d 149, 166 (D.D.C. 2009)). However, "the Court is 'mindful that issues of national security are within the unique purview of the executive branches, and that as a practical matter, few judges have the skill or experience to weigh the repercussions of disclosure of intelligence information."' !d. (quoting Physicians for Human Rights, 675 F. Supp. 2d at 166). Accordingly, the Court gives deference to the Government's justifications for classifying information. Id.
b. Exemption 3 Under FOIA Exemption 3, the Government is permitted to withhold information that is "specifically exempted from disclosure by [a] statute" that requires certain information to be withheld or that establishes criteria for the withholding of information. 5 U.S.C. § 552(b)(3). The Court's assessment ofthe applicability of this exemption "depends less on the detailed factual contents of specific documents" than with other FOIA exemptions; rather "the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within that statute's coverage." Amnesty Int 'l USA, 728 F. Supp. 2d at 501 (quoting Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978)). Defendants invoke five statutes to justify nondisclosure under Exemption 3: 50 U.S.C. § 3605, which exempts from disclosure "the organization or any function of the [NSA], or any information with respect to the activities thereof''; 50 U.S.C. § 3024(i)(l), which directs the director of national intelligence to "protect intelligence sources and methods from unauthorized disclosure" and to "establish and implement guidelines for the intelligence community" regarding the classification and dissemination of sensitive information; 18 U.S.C. § 798, which
32

criminalizes the unauthorized disclosure of classified information, inter alia, "concerning the communication intelligence activities of the United States" or "obtained by the processes of communication intelligence from the communications of any foreign government"; 50 U.S.C. § 3507, which prohibits disclosure of the "organization, functions, names, official titles, salaries, or numbers of personnel employed by the [CIA]"; and 10 U.S.C. § 424, which prohibits disclosure of "the organization or any function of an organization" of the DIA, including "the number of persons employed by or assigned or detailed to any such organization or the name, official title, occupational series, grade, or salary of any such person." Plaintiffs do not contest that each law qualifies as an exemption statute under Exemption 3. See Pl. Mem. 32-34; see also Elec. Frontier Found. v. Dep 't ofJustice, 141 F. Supp. 3d 51, 58 n.8 (D.D.C. 2015). The Court must, therefore, "consider whether the withheld material satisfies the criteria of the exemption statute[s]." Wilner, 592 F.3d at 69 (quoting Wilner v. NSA, No. 07 Civ. 3883, 2008 WL 2567765, at *4 (S.D.N.Y. June 25, 2008)).
Under FOIA, "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552(b). "This provision requires agencies and courts to differentiate among the contents of a document rather than to treat it as an indivisible 'record' for FOIA purposes." ACLU, 2016 WL 5394738, at *13 (quoting FBI v. Abramson, 456 U.S. 615, 626 (1982)). In invoking these exemptions, and the segregability of the documents or lack thereof, "an agency's justification ... is sufficient ifit appears 'logical' or 'plausible."' NY Times, 756 F.3d at 119 (quoting Wolfv. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)).
33

n. Application Plaintiffs argue that Defendants have improperly withheld information that is not "inextricably intertwined" with the properly exempt material. Pl. Mem. 34 (quoting ACLU v. FBI, No. 11 Civ. 7562,2015 WL 1566775, at *2 (S.D.N.Y. Mar. 31, 2015)). Plaintiffs make three arguments to Defendants' withholdings: the withholding of pure legal analysis in legal memoranda, the withholding of segregable non-exempt information from Inspector General and compliance reports, and the withholding of segregable non-exempt information from documents that Plaintiffs refer to as rules and regulations. See id. 35-43.
a. Pure Legal Analysis Plaintiffs argue that pure legal analysis-that is, "constitutional and statutory interpretation, discussions of precedent, and legal conclusions that can be segregated from properly classified or otherwise exempt facts"-"cannot be withheld under Exemptions 1 or 3." Id. at 35 (citing NY. Times, 756 F.3d at 119-20). However, the Second Circuit has acknowledged that broader withholding may be appropriate: "We recognize that in some circumstances the very fact that legal analysis was given concerning a planned operation would risk disclosure ofthe likelihood ofthat operation, but that is not the situation here where drone strikes and targeted killings have been publicly acknowledged at the highest levels of the Government." 756 F.3d at 119 (emphasis added) (redacting an entire section of OLD-DOD memorandum that mentions intelligence gathering activities). Executive Order 13,526 provides that information "shall not be considered for classification unless ... it pertains to" a protected category. Exec. Order No. 13,526 § 1.4 (emphasis added). As the D.C. Circuit has recently and repeatedly stated, "pertains is not a very demanding verb." ACLU v. US. Dep 't ofJustice, 640 F. App'x 9,11 (D.C. Cir. 2016) (quoting Judicial Watch, Inc. v. US. Dep'tofDef, 715 F.3d
34

937,941 (D.C. Cir. 2013)). And as the Second Circuit in NY Times acknowledged, disclosure of even pure legal analysis concerning covert intelligence operations could jeopardize those operations. See 756 F.3d at 119.
Defendants' declarations support the conclusion that the intelligence operations described in the withheld documents are not public knowledge and that disclosure of even the pure legal analysis therein would result in damage to the national security. The NSA's supplemental declaration states that "the mere subject matter of these memoranda and opinions pertains to classified NSA operations and activities that have not been publicly acknowledged" such that the "release of even the basic factual or legal background in these memoranda could reasonably be expected to cause harm to the national security or an interest protected by statute, as the formulation of the legal analysis itself could enable Plaintiffs and the public to discern classified or protected facts about the program or activity being discussed." Suppl. Decl. ofDavid J. Sherman ("Suppl. NSA Decl.") ~ 4, ECF No. 79; see also NSA Decl. ~ 39 ("Disclosure of any information about these sources and the methods by which NSA effects collection, as well as the scope ofthat collection, would demonstrate the capabilities and limitations of the U.S. SIGINT system, and the success (or lack of success) in acquiring certain types of communications."); id. ~ 80 ("Some of the other information concerns particularly sensitive intelligence collection and processing techniques, the unauthorized disclosure of which could be reasonably expected to cause exceptionally grave damage to the national security. Once alerted to these collection and processing methods, adversaries could develop additional countermeasures to thwart collection and effective analysis of electronic communications."). See generally NSA Classified Decl. Similarly, the CIA's supplemental declaration states that "disclosure ofthe facts, analysis, and even citations to legal authorities in this context would tend to reveal not only the nature of the
35

legal advice sought, but also the underlying classified material associated with those programs and techniques." Suppl. CIA Decl. ,-r 5; see also Suppl. FBI Decl. ,-r,-r 9-10.
In sum, giving appropriate deference to the assessment of the agencies, the Court finds it logical and plausible that there is no segregable non-exempt content contained in the legal memoranda withheld in fu11. 3 The Court credits Defendants' declarations that affirm that disclosure of these documents would tend to cause harm to the national security and would reveal intelligence sources and methods. The documents were properly withheld under Exemptions 1 and 3, and Defendants' motion for summary judgment is GRANTED.
b. Inspector General and Compliance Reports Plaintiffs contend that Defendants did not properly release segregable, non-exempt information from thirteen documents that were withheld at least in part: CIA 8, 10, 12, 30, and 77; NSA 22, 23, and 79; and NSD 7, 37, 42, 44, and 47. Pl. Index 9-10. Plaintiffs argue that Defendants: (1) failed to conduct a line-by-line segregability review, Pl. Mem. 39-40; (2) improperly withheld material that is marked as unclassified or has been inadequately justified, id. at 40; and (3) improperly withheld information about the number of certain types of compliance incidents, id. at 41-42. On the first issue, Defendants do not address in their reply whether they did conduct a line-by-line segregability review on these thirteen documents. See Def. Reply 36-38. As it is Defendants' obligation to do so, see 5 U.S.C. § 552(b), Defendants are instructed to conduct such a segregability review if they have not done so, or inform the Court that this review has already occurred.
3 Defendants did not conduct a segregability review of certain OLC memoranda for purposes of Exemptions 1 and 3 because the documents were withheld in full under Exemption 5. Def. Reply 35 n.7. As the Court is granting summary judgment on Exemption 5 regarding the OLC memoranda, see supra Part III(b)(ii)(a), segregability review is not required.
36

Second, Plaintiffs point to material explicitly marked as "U/FOUO"-that is, "Unclassified/For Official Use Only"-which was improperly withheld under Exemption 1. Pl. Mem. 40 n.15 (citing CIA 10 at 8). Defendants are instructed to review these thirteen documents for improper withholding of this sort, and inform the Court of the results.
Plaintiffs also specifically challenge the redactions in three sections of CIA 10, labeled "Targeting Standards," "The Department of Justice's Role in EO Compliance," and information about "real or perceived legal and policy concerns" associated with targeting U.S. persons abroad for surveillance. Pl. Mem. 40 (citing CIA 10 at 14, 23-24, 32-43). However, these sections "discuss specifics of the Agency's intelligence collection-both methods and processwhich remain classified." Suppl. CIA Decl. ,-r 8. The Court is satisfied that these sections are properly withheld.
Finally, Plaintiffs challenge the redaction of the number of compliance incidents. For example, the following excerpts appear in NSA 79: "During the fourth quarter ofCY2012, in [redacted] instances, signals intelligence (SIGINT) analysts inadvertently targeted communications to, from, or about USPs, while pursuing foreign intelligence tasking or performed mistaken queries that potentially sought or returned information about USPs." Pl. Reply 26 (quoting NSA 79 ,-r I.A.1 ). And: "On [redacted] occasions during the fourth quarter, NSA analysts performed queries in raw traffic databases without first conducting the necessary research ...." Id. (quoting NSA 79 ,-r I.A.l.b). Although some of these redactions contain only unclassified documents, Defendants have met their burden regarding Exemption 3. The supplemental NSA declaration states that "the withheld numbers all relate to NSA's collection, analysis, and dissemination of signals intelligence for foreign intelligence purposes and the manner in which NSA conducts compliance and oversight over the SIGINT mission," Suppl.
37

NSA Decl. ,-r 10, and "the disclosure of such numbers, in compilation with information that has
been previously released, would tend to disclose the overall scope ofNSA's foreign intelligence collection efforts ... [and] could be pieced together to reveal highly sensitive information to our
adversaries," id. ,-r 11. Such information is protected under 50 U.S.C. § 3605 as "information
with respect to the activities" ofthe NSA, and the Court is satisfied that Exemption 3 applies. Accordingly, as described above, Defendants' motion for summary judgment is
GRANTED in part and DENIED in part. c. Rules and Regulations, Training and Briefing Materials
Plaintiffs make explicit challenges about two documents. The first is CIA 11,4 a training slide entitled "AR 2-2 Collection Rules." Pl. Mem. 42-43. The supplemental CIA declaration states that CIA 11 "contains details about specific intelligence collection techniques" that, if disclosed, would reveal "how intelligence is obtained [and] would permit the targets of those efforts to evade detection, which in tum could reasonably be expected to cause damage to the
national security." Suppl. CIA Decl. ,-r 10. The Government has met its burden regarding CIA
11. The second, NSD 94-125, is a 1988 version ofthe "Classified Annex to DoD Procedures under EO 12333," as to which Plaintiffs argue the Government has officially released some of this withheld material in a subsequent version of the document. Pl. Mem. 42-43. Defendants, state that NSA "is 'reviewing ACLU's assertions and hopes to complete its assessment within 30
days.'" Def. Reply 39 (quoting Suppl. NSA Decl. ,-r 16 n.3). The Court tends to agree with
Plaintiffs that the withholdings may be inappropriate. Defendants shall inform the Court of the result.
4 Plaintiffs' argument about CIA 11 is listed under ''Rules and Regulations" in their briefs, Pl. Mem. 42; Pl. Reply 28-29, but is listed in Plaintiffs' Index under "Training and Briefing Materials," Pl. Index 11. Plaintiffs do not discuss the category of"Training and Briefing Materials" documents in their briefs. The Court discusses both categories of documents here.
38

Plaintiffs challenge, without discussion in their briefs, the withholding of a number of additional "rules and regulations" and "training and briefing materials." Pl. Index 10-11. First, Plaintiffs challenge the withholding of CIA 1, 2, 3, 4, 5, 6, 7, 9, 22, 36, 42, 43, 45, and 46. Many of these documents were released in part. See CIA Vaughn Index. CIA states that "the information withheld pursuant to Exemption 1 deals with the intelligence priorities set forth in [E.O. 12,333), such as intelligence collection related to espionage, terrorism and proliferation. It tends to identify the targets of intelligence-gathering efforts, reveal the specific collection techniques and methods employed, and contain details concerning the locations and timing of that collection." CIA Decl. ~ 16. These documents are classified, id. ~ 13, and disclosure ofthis information would "undermine U.S. intelligence capabilities and render collection efforts ineffective" and could reasonably be expected to damage national security, id. ~ 18. These documents are also protected under 50 U.S.C. § 3024(i)(1) as "intelligence sources and methods." Id. ~ 19. The Court concludes that Exemptions 1 and 3 are properly invoked.
Plaintiffs challenge the withholding of FBI 30-35 and FBI 57-65. As the FBI declaration describes, these documents are properly classified, FBI Decl. ~~ 30-32, and the withheld information "describes and pertains to intelligence activities, sources, and methods utilized by the FBI in gathering intelligence information," id. ~ 35, such that the release of such information would "disrupt the FBI's intelligence-gathering capabilities and could cause serious damage to our national security," id. ~ 37. Accordingly, withholding the information pursuant to Exemptions 1 and 3 was appropriate.
Plaintiffs also challenge the withholding ofNSA 5 and documents labeled NSA # 4086222 and NSA # 4086223. The NSA declaration states that each of these documents "implements EO 12333 and prescribes policies and procedures for ensuring that SIGINT is
39

conducted in accordance with the EO and applicable law." NSA Decl. ~ 71. These documents are confidential, id. ~ 72, and their disclosure would reveal the methods, procedures, nature, and scope of communications intelligence activity, id. ~ 73, as well as their vulnerabilities, id. ~ 74. Such information relates to the function of the NSA. Id. ~ 75 (quoting 50 U.S.C. § 3605). Defendants have met their burden regarding Exemptions 1 and 3.
The final rules and regulations document of which Plaintiffs challenge the withholding is NSD 202-207, which was withheld in part and described as a "Supplemental Guidelines for Collection, Retention, and Dissemination of Foreign Intelligence." NSD Vaughn Index 9. Parts of the document were withheld under Exemptions 1 and 3. As explained by the FBI declaration, the withheld information is properly classified, FBI Decl. ~ 30, and "describes and pertains to intelligence activities, sources, and methods utilized by the FBI in gathering intelligence information," id. ~ 35. Release of this information "would reveal intelligence activities and methods used by the FBI against targets who are the subject of foreign counterintelligence investigations or operations; identify a target of a foreign counterintelligence investigation; or disclose the intelligence gathering capabilities of the activities or methods directed at targets," id. ~ 36; "would severely disrupt the FBI's intelligence-gathering capabilities and could cause serious damage to our national security," id. ~ 37; and would disclose intelligence sources and methods, id. ~~ 39-41. Accordingly, Defendants have met their burden regarding their redactions under Exemptions 1 and 3.
Finally, Plaintiffs challenge the withholding of the training materials contained inDIA V4. Although the Government also asserted Exemption 5 with respect to DIA V-4, it waived this argument on reply and relies solely on Exemptions 1 and 3. Def. Reply 12 (citing Suppl. Decl. of Alesia Y. Williams ("Suppl. DIA Decl.") ~~5-8, ECF No. 77). DIA V-4 is a classified
40

presentation entitled "DoD HUMINT [human intelligence] Legal Workshop" on "Fundamentals

ofHUMINT Targeting." DIA V-4 at 1. As the DIA declaration explains, "[t]he withheld

information contains material discussing intelligence methods, specifically the means by which

DIA legally collects intelligence and the legal restrictions on collecting intelligence on U.S.

persons. The withheld information also contains information relating to intelligence sources,

including detailed and specific discussion and guidance on the rules for legally collecting

intelligence on sensitive source categories and explaining those sensitive source categories."

Decl. of Alesia Y. Williams ("DIA Decl.") ~ 15, ECF No. 62. This information is properly

classified, id. ~ 14, and disclosure "of the sources and methods the U.S. government implements

could reasonably be expected to enable persons and groups hostile to the United States to

identify U.S. intelligence activities, methods or sources, and to design countermeasures to them,"

id. ~ 17; see also id. ~~ 20, 21. The document was "carefully reviewed line-by-line by a subject

matter expert for reasonably segregable information." Id. ~ 24. Defendants have met their

burden regarding their redactions under Exemptions 1 and 3.

Accordingly, Defendants' motion for summary judgment is DENIED as to NSD 94-125

and GRANTED as to CIA 1, 2, 3, 4, 5, 6, 7, 9, 22, 36, 42, 43, 45, and 46; DIA V-4; FBI 30-35

and 57-65; NSA 5, NSA # 4086222, and NSA # 4086223; and NSD 202-207.

D. Exemption 7

1.

Legal Standard

Defendants invoke Exemption 7(D) and 7(E) of the FOIA statute. Def. Mem. 60-63.

Under this exemption, records or information are exempted when "compiled for law enforcement

purposes." 5 U.S.C. § 552(b)(7). Information is compiled for law-enforcement purposes where

the "withheld record has a rational nexus to the agency's law-enforcement duties, including the

41

prevention of terrorism and unlawful immigration." Bishop v. US. Dep 't ofHomeland Sec., 45 F. Supp. 3d 380, 387 (S.D.N.Y. 2014) (citation omitted). "[A]ll records of investigations compiled by the FBI are for law enforcement purposes." Halpern, 181 F.3d at 296 (emphasis added). "As the D.C. Circuit has explained, 'Law enforcement entails more than just investigating and prosecuting individuals after a violation of the law.' The 'ordinary understanding' of the term 'includes ... proactive steps designed to prevent criminal activity and maintain security."' Human Rights Watch v. Dep 't ofJustice Fed. Bureau ofPrisons, No. 13 Civ. 7360, 2015 WL 5459713, at *5 (S.D.N.Y. Sept. 16, 2015) (citation omitted) (quoting Pub. Emp.for Env't'l Responsibility v. US. Section, Int'l Boundary & Water Comm 'n, 740 F.3d 195, 203 (D.C. Cir. 2014)). 5
Under Exemption 7(D), a law enforcement record is exempted from FOIA to the extent it "could reasonably be expected to disclose the identity of a confidential source ... and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source." 5 U.S.C. § 552(b)(7)(D). '"[A] source should be deemed confidential if the source furnished information with the understanding that the [agency] would not divulge the communication except to the extent the [agency] thought necessary for law enforcement purposes.' As such, disclosure is not required 'ifthe source provided information under an express assurance of confidentiality or in circumstances from
5 Plaintiffs urge the Court to adopt the stringent standard set forth by the D.C. Circuit in Pratt v. Webster, 673 F.2d 408 (D.C. Cir. 1982). See Pl. Br. 44. Pratt required that an agency identify "a particular individual or a particular incident as the object of [the agency's] investigation" and "the connection between that individual or incident and a possible security risk or violation of federal law." Pratt, 673 F.2d at 420. However, "Congress amended FOIA since the D.C. Circuit decided Pratt, removing a requirement that the records be 'investigatory.'" Human Rights Watch, 2015 WL 5459713, at *5. Since courts should take "a practical approach when ... confronted with an issue of interpretation of' FOIA, id. (quoting John Doe Agency v. John Doe Cmp., 493 U.S. 146, 157 (1989)), the Court declines to adopt so ''wooden" a test, id.
42

which such an assurance could be reasonably inferred."' Halpern, 181 F.3d at 298 (citation omitted) (quoting US. Dep 't ofJustice v. Landano, 508 U.S. 165, 172, 174 (1993)).
Under Exemption 7(E), records may be withheld to the extent they "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." 5 U.S.C. § 552(b)(7)(E). Once the "threshold requirement" of showing that a record was compiled for law enforcement purposes is satisfied, "a court must determine if either of Exemption 7(E)'s 'two alternative clauses' applies." Bishop, 45 F. Supp. 3d at 387. A record discloses "techniques and procedures" if it "refers to how law enforcement officials go about investigating a crime." Allard K. Lowenstein Int 'l Human Rights Project v. Dep 't ofHomeland Sec., 626 F.3d 678, 682 (2d Cir. 201 0). "The term 'guidelines'meaning ... 'an indication or outline of future policy or conduct'-generally refers ... to resource allocation." Id. (quoting Webster's Third New International Dictionary).
n. Application Plaintiffs challenge the application of Exemption 7 to two formal legal memorandaOLC 5 and 6-and to five rules and regulations-FBI 13-15, 30-35, and 57-65; NSD 202-07; and CIA 4.6 Pl. Mem. 6-8, 43 n.16. The two formal legal memoranda are discussed above, and, in short, they discuss legal advice concerning surveillance under E.O. 12,333. See OLC Decl. Ex. A ("OLC Vaughn Index"), at 1-2. Defendants assert Exemption 7(D) with respect to OLC 6 and Exemption 7(E) regarding both documents. FBI Decl. ,-r,-r 47, 54. Regarding Exemption 7(D), FBI explains that
6 The portions of CIA 4 that were withheld under Exemption 7(E) were also withheld under Exemptions 1 and 3. See Def. Reply 41 n.9. Having granted summary judgment for Defendants on those exemptions, the Court need not address Exemption 7 for these redactions.
43

OLC 6 includes "specific and detailed information that is singular in nature, concerning the activities of a subject of investigative interest to the FBI" including about individuals "specifically referred to as 'confidential sources."' !d. ,-r 47 & n.21. To the narrow extent OLC 6 includes such information, Defendants are correct to withhold it; however, given the nature of the document as a formal legal memorandum, Exemption 7(D) cannot justify complete withholding the document, but other exemptions discussed above also apply. FBI asserts that OLC 5 and OLC 6 both contain sensitive techniques and procedures about its surveillance and information collection and analysis activities. !d. ,-r,-r 53-56; see also, e.g., id. ,-r 54 ("Revealing details about information-gathering methods and techniques commonly used in national security investigations, and the circumstances under which they are used, would enable the targets of those methods and techniques to avoid detection of and develop countermeasures to circumvent the FBI's ability to effectively use such critical law enforcement methods and techniques in current and future national security investigations, thus risking the circumvention of the law."). As these documents are formal legal memoranda, Exemption 7(E) may indeed justify partial withholding but, standing alone, cannot justify complete withholding. See, e.g., PHE, Inc. v. Dep 't ofJustice, 983 F.2d 248, 251-52 (D.C. Cir. 1993) (denying agency's request to withhold legal analysis and digest of caselaw under Exemption 7(E)).
FBI 13-15 includes selections from FBI's Domestic Investigations and Operation Guide ("DIOG"), from which FBI withheld three paragraphs. FBI Decl. ,-r 59 & Ex. H. FBI explains that the DIOG "provides FBI employees with the rules, regulations, and procedures it is to use when conducting both criminal and national security investigations." Suppl. FBI Decl. ,-r 15. FBI 30-35 contains excerpts from an electronics communication "from FBI's Office of General Counsel, National Security Law Branch to all FBI Offices setting out the policy and procedure
44

for requesting Attorney General authority under Executive Order 12333, Section 2.5 to collect intelligence on U.S. persons overseas." FBI Decl. Ex. I ("FBI Vaughn Index"), at 2. FBI 57-65 contains excerpts from FBI's Counterintelligence Division Policy Implementation Guide, FBI Decl. ~59, which "sets forth specific policies, procedures and investigative techniques used by the FBI in its counterintelligence investigations," Suppl. FBI Decl. ~ 18. NSD 202-07 contains supplemental guidelines for collection, retention, and dissemination of foreign intelligence. FBI Vaughn Index 3.
Defendants have met their burden regarding Exemption 7. As the supplemental FBI declaration states, "each of these records identify a clear and direct nexus to the FBI's law enforcement duties[,] [s]pecifically, how the FBI collects, disseminates and retains intelligence is all part of its law enforcement mission." Suppl. FBI Decl. ~ 13. FBI 13-15 "discusses tools, techniques and methods used during investigations, how they are implemented, as well as the authority required to implement them." !d.~ 15. FBI 30-35 "sets forth specific policies, procedures and investigative techniques used by the FBI in its counterintelligence investigations. These investigations are, by definition, both criminal in nature and for the purpose of collecting intelligence." !d. ~ 18. Releasing the information in all of these documents would "provide subjects and their associates with non-public information pertaining to the FBI's obligations or internal procedures under EO 12333 allowing these individuals to develop countermeasure to avoid detection and surveillance by the FBI, thus nullifying the effectiveness of these important investigative/national security techniques/procedures." !d. ~ 19.
Accordingly, Defendants' invocation of Exemption 7, as described above regarding OLC 5, OLC 6, FBI 13-15, FBI 30-35, FBI 57-65, and NSD 202-07 is proper, and summary judgment on Defendants' motion is GRANTED.
45

E. Reprocessing Plaintiffs seek reprocessing of OLC 4, 8, and 10 in light of documents that have been recently released by the Government that may have been officially acknowledged. Pl. Mem. 4950; Pl. Reply 35-36. "As a general rule, a FOIA decision is evaluated as of the time it was made and not at the time of a court's review." NY Times, 756 F.3d at 111 n.8; see also Florez v. CIA, 829 F.3d 178, 188 (2d Cir. 2016) ("[T]o require an agency to adjust or modify its FOIA response based on post-response occurrences could create an endless cycle ofjudicially mandated reprocessing each time some circumstance changes." (quoting Bonner v. Dep 't ofState, 928 F.2d 1148, 1152 (D.C. Cir. 1991))). Accordingly, Plaintiffs' request is DENIED.
F. In Camera Review In FOIA cases, a court should conduct in camera review only as a last resort. See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978). "'[A] district court should not undertake in camera review of withheld documents as a substitute for requiring an agency's explanation of its claimed exemptions in accordance with Vaughn.' Rather, '[t]he district court should first offer the agency the opportunity to demonstrate, through detailed affidavits and oral testimony, that the withheld information is clearly exempt and contains no segregable, nonexempt portions.' 'If the agency fails to provide a sufficiently detailed explanation to enable the district court to make a de novo determination of the agency's claims of exemption, the district court then has several options, including inspecting the documents in camera, requesting further affidavits, or allowing the plaintiff discovery."' ACLU, 2016 WL 5394738, at *13 (alterations in original) (citations omitted) (quoting Spirko v. US. Postal Serv., 147 F.3d 992, 997 (D.C. Cir. 1998)). The Court finds that in camera review is premature at this time and invites the Government to supplement its submissions and Plaintiffs to respond.
46

IV. CONCLUSION

For the reasons stated above, Defendants' motion is GRANTED in part and DENIED in

part, and Plaintiffs' motion is DENIED without prejudice. The parties are directed to confer and

jointly submit a proposed briefing schedule on any further motions on or before April26, 2017.

The Clerk of Court is directed to terminate the motions at ECF Nos. 58 and 69.

SO ORDERED.
Dated: March 27,2017 New York, New York

I~JIJv U/rYJ.
KIMBA M. WOOD United States District Judge

47

 
 Case 1:13-cv-09198-KMW Document 112 Filed 08/17/17 Page 1 of 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK AMERICAN CIVIL LIBERTIES UNION, and AMERICAN CIVIL LIBERTIES UNION FOUNDATION,

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC#:
DATE FILED: J>(l1/17

Plaintiffs,

-against-
NATIONAL SECURITY AGENCY, CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, and DEPARTMENT OF STATE,

13 Civ. 9198 (KMW) (JCF) ORDER

Defendants.

KIMBA M. WOOD, District Judge:

Plaintiffs, the American Civil Liberties Union and the American Civil Liberties Union

Foundation, bring this action challenging the nondisclosure of information requested by

Plaintiffs pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, from

Defendants: the United States National Security Agency ("NSA"), the United States Central

Intelligence Agency ("CIA"), the United States Department of Defense ("DOD"), the United

States Department of Justice ("DOJ''), and the United States Department of State ("State")

(collectively, "Defendants" or "the Government"). The parties each previously moved for partial

summary judgment on the adequacy of certain agencies' searches in response to Plaintiffs' FOIA

requests and the applicability of certain FOIA exemptions to 150 responsive documents that

were partially or fully withheld by the Government. On March 27, 2017, the Court issued a

memorandum opinion and order (the "Order") granting in part and denying in part the

Government's motion, and denying Plaintiffs' motion without prejudice. ECF No. 93. The

parties now each move for partial summary judgment as to the remaining 46 documents that are

contested. In accordance with the Order, the Government has conducted additional review and

1

Case 1:13-cv-09198-KMW Document 112 Filed 08/17/17 Page 2 of 10
searches, and provided additional support for its motion. For the reasons stated below, Defendants' motion is GRANTED and Plaintiffs' motion is DENIED.
I. BACKGROUND The Court assumes familiarity with the previous summary judgment opinion in this
matter, which provides a more complete background. In short, Plaintiffs seek information from seven federal entities-CIA; State; NSA; the Defense Intelligence Agency ("DIA''), an agency within DOD; and three divisions ofDOJ: the Federal Bureau oflnvestigation ("FBI"), the National Security Division ("NSD"), and the Office of Legal Counsel ("OLC")-relating to the agencies' authority under Executive Order 12,333 ("E.O. 12,333") and related procedures and standards. Second Am. Compl. ~~ 18-19, ECF No. 44. The Executive Order allows intelligence agencies to gather information from foreign sources, and allows for the collection, retention, and dissemination of information concerning United States citizens, at home and abroad, in certain
limited situations. E.O. 12,333 § 2.3(C); see also id. §§ 2.3 to 2.4.
In the Order, the Court addressed the parties' arguments regarding the adequacy of certain agencies' searches, as well as the lawfulness of certain withholdings and redactions. Specifically, the Order held that:
• FBI's, NSD's, and CIA's searches were inadequate or inadequately explained, Order 915;
• the Government sufficiently justified its withholdings under Exemption 5 of the FOIA as to certain OLC, NSD, and CIA documents, but found that the Government's justifications for other NSD, NSA, and CIA documents were lacking, 1 id. at 15-30;
• the Government's invocation ofFOIA Exemptions 1 and 3 with regard to certain legal memoranda was justified, id. at 31-36;
1 Specifically, the Court denied the Government's motion as to the following documents: NSD 12, 13, 14, 23, 33, and 49; CIA 36, 42, 43, 45, 46, and 80-91; and NSA 7, 11, 12 (except for pages 2-4 and 30-38), 14-21, and 28. Plaintiffs no longer challenge the assertion of the presidential communications privilege to CIA 36. Pl. Opp. 5 n.5, ECF No. 107. And Defendants have since released CIA 46 to Plaintiffs. !d.
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Case 1:13-cv-09198-KMW Document 112 Filed 08/17/17 Page 3 of 10
• the Government was required to conduct a segregability review on certain documents, to the extent it had not done so, and had to review certain material marked "Unclassified/For Official Use Only" for content that should be disclosed,2 id. at 36-38;
• the Government justified its withholdings under FOIA Exemptions 1 and 3 regarding some rules and regulations and training and briefing materials, but not as to one document (NSD 94-125),3 id. at 38-41;
• the Government's withho1dings pursuant to Exemption 7 of the FOIA was justified, id. at 41-45; and
• Plaintiffs' request for the reprocessing of certain OLC documents was not justified, and that in camera review was premature, id. at 46.
II. LEGAL STANDARD A moving party is entitled to summary judgment when the record shows that there is no
genuine dispute as to any material fact and the moving party is entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004). A genuine dispute exists "ifthe evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). Material facts are those that, under the governing law, may affect the outcome of a case. I d. The moving party must establish the absence of a genuine dispute of material fact by citing to particulars in the record. Fed. R. Civ. P. 56(a), (c); Celotex, 477 U.S. at 322-25; Koch v. Town ofBrattleboro, 287 F.3d 162, 165 (2d Cir. 2002). Ifthe movant satisfies this burden, the opposing party must then "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). When deciding the motion, the Court must view the record in the light most favorable to the non-moving party, 0 'Hara v.
2 Specifically, these documents include CIA 8, 10, 12, 30, and 77; NSA 22, 23, and 79; and NSD 7, 37, 42, 44, and 47. 3 Following the Court's Order, Defendants provided Plaintiffs with a less redacted version ofNSD 94-125, and Plaintiffs withdraw their challenge to the remaining redactions of that document. Pl. Opp. 4 n.4.
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Case 1:13-cv-09198-KMW Document 112 Filed 08/17/17 Page 4 of 10
Weeks Marine, Inc., 294 F.3d 55, 61 (2d Cir. 2002), although speculation and conclusory assertions are insufficient to defeat summary judgment, see Niagara Mohawk Power Corp. v. Jones Chern. Inc., 315 F.3d 171, 175 (2d Cir. 2003).
FOIA cases are regularly resolved on summary judgment. "In order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate and that any withheld documents fall within an exemption to the FOIA." Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994) (citations omitted). "[A]ll doubts as to the applicability of the exemption must be resolved in favor of disclosure." NY. Times Co. v. DOJ, 756 F.3d 100, 112 (2d Cir. 2014) (quoting Wilner v. NSA, 592 F.3d 60, 69 (2d Cir. 2009)).
When an agency withholds records and the requestor challenges such withholdings, the district court must "determine the matter de novo, and may examine the contents of ... agency records in camera to determine whether such records or any part thereof shall be withheld under any ofthe exemptions." 5 U.S.C. § 552(a)(4)(B). In Vaughn v. Rosen, the Court of Appeals for the D.C. Circuit held that to adequately justify an alleged exemption, the Government should provide "a relatively detailed analysis in manageable segments." 484 F.2d 820, 826 (D.C. Cir. 1973). Thus, agencies submit Vaughn indexes listing withheld documents and claimed exemptions, along with Vaughn affidavits that describe the withheld documents and the rationale for withholding them. See ACLU v. DOJ, No. 13 Civ. 7347, 2016 WL 5394738, at *4 (S.D.N.Y. Sept. 27, 2016).
Where "such declarations are 'not controverted by either contrary evidence in the record nor by evidence of agency bad faith,' summary judgment for the government is warranted." I d. (quoting Wilner, 592, F.3d at 73). "When the claimed exemptions involve classified documents in the national security context, the Court must give 'substantial weight to an agency's affidavit
4

Case 1:13-cv-09198-KMW Document 112 Filed 08/17/17 Page 5 of 10
concerning the details of the classified status of the disputed record."' N. Y Times, 756 F.3d at 112 (quoting ACLU v. DOJ, 681 F.3d 61, 69 (2d Cir. 2012)). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Wilner, 592 F.3d at 73 (quoting Larson v. Dep 't ofState, 565 F.3d 857, 862 (D.C. Cir. 2009)). Accordingly, "the government's burden is a light one." ACLUv. US. Dep't ofDef, 628 F.3d 612, 624 (D.C. Cir. 2011). However, Vaughn submissions are insufficient where "the agency's claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping." Quinon v. FBI, 86 F.3d 1222, 1227 (D.C. Cir. 1996) (quoting Hayden v. NSA, 608 F.2d 1381, 1387 (D.C. Cir. 1979)).
III. DISCUSSION A. Adequate Searches
"To prevail on summary judgment, ... the defending 'agency must show beyond material doubt ... that it has conducted a search reasonably calculated to uncover all relevant documents."' Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). "The adequacy of a search is not measured by its results, but rather by its method." N. Y Times, 756 F.3d at 124. "[T]o establish the adequacy of a search, agency affidavits must be relatively detailed and nonconclusory, and submitted in good faith." Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473,488-89 (2d Cir. 1999) (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)). "A reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched, is necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate in order to grant summary judgment." Oglesby v.
5

Case 1:13-cv-09198-KMW Document 112 Filed 08/17/17 Page 6 of 10
US. Dep 't ofArmy, 920 F.2d 57, 68 (D.C. Cir. 1990). However, "the law demands only a 'relatively detailed and nonconclusory' affidavit or declaration." Adamowicz v. IRS, 402 F. App'x 648, 650 (2d Cir. 2010) (quoting Grand Cent. P'ship, 166 F.3d at 488-89).
In the Order, the Court found that FBI, NSD, and CIA failed to show that their searches were adequate. Order 9-15. In support of its motion, the Government has submitted supplemental declarations from CIA and NSD that more extensively describe the searches that each agency undertook. See Second Suppl. Decl. of Antoinette B. Shiner ("Second Suppl. CIA Decl.") ~~ 3-11, ECF No. 101; Decl. ofKevin G. Tiernan ("Second Suppl. NSD Decl.") ~~ 9-21, ECF No. 104. In addition, because FBI could not adequately describe the search it previously undertook, it conducted a new search in collaboration with Plaintiffs and guided by the requirements set forth in the Order. See Third Decl. of David M. Hardy ("Second Suppl. FBI Decl.") ~~ 4-8, ECF No. 102; Fourth Decl. of David M. Hardy ("Third Suppl. FBI Decl.") ~~ 310, ECF No. 105. Plaintiffs no longer challenge the agencies' searches. Pl. Opp. 1. The Court has reviewed the supplemental declarations and agrees that Defendants' searches were adequate. Accordingly, Defendants' motion for summary judgment as to the adequacy of FBI's, NSD's, and CIA's searches is GRANTED.
B. Segregability In the Order, the Court directed the Government to (a) confirm that a line-by-line segregability review had taken place or to conduct one if it had not, and (b) address certain redactions of content labeled as unclassified. Order 36-38 (denying the Government's motion for summary judgment as to CIA 8, 10, 12, 30, and 77; NSA 22, 23, and 79; and NSD 7, 37, 42, 44, and 47). As discussed below, the Government's supplemental briefing has sufficiently addressed the Court's concerns.
6

Case 1:13-cv-09198-KMW Document 112 Filed 08/17/17 Page 7 of 10
Under FOIA, "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552(b). "This provision requires agencies and courts to differentiate among the contents of a document rather than to treat it as an indivisible 'record' for FOIA purposes." ACLU, 2016 WL 5394738, at *13 (quotingFBiv. Abramson, 456 U.S. 615,626 (1982)). "[I]t is unlikely that each and every word in [a document] is classified. But case citations and quotations standing in a vacuum would be meaningless. If sufficient context was disclosed to make the non-exempt material meaningful, the circumstances warranting the classification of the [document] would be revealed. FOIA does not require redactions and disclosure to this extent." ACLU v. DOJ, 229 F. Supp. 3d 259 (S.D.N.Y. 2017) (citing Rodriguez v. IRS, No. 09 Civ. 5337, 2012 WL 4369841, at *8 (E.D.N.Y. Aug. 31, 2012), report and recommendation adopted, 2012 WL 4364696 (E.D.N.Y. Sept. 24, 2012)). In invoking these exemptions, and the segregability of the documents or lack thereof, "an agency's justification ... is sufficient if it appears 'logical' or 'plausible."' NY Times, 756 F.3d at 119 (quoting Wolfv. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)).
In its supplemental submissions, the Government has adequately confirmed that the documents have been reviewed for segregable disclosable content and that no such content exists. As to NSD 7, 37, 42, 44, and 47, the NSA declarant reaffirms that the documents have undergone a segregability review and no portion could be reasonably segregated, and that the content is classified and prohibited from public disclosure by statute, satisfying Exemptions 1 and 3. Suppl. Decl. of David J. Sherman ("Second Suppl. NSA Decl.") ~ 19, ECF No. 103. The Government also confirms that NSD 42 and 47 contain little unclassified information, and the unclassified content both falls under Exemption 3 and is, for the most part, meaningless in
7

Case 1:13-cv-09198-KMW Document 112 Filed 08/17/17 Page 8 of 10
isolation. Suppl. Decl. of David J. Sherman ("Third Suppl. NSA Decl.") 1 8, ECF No. 111. As
to NSA 22, 23, and 79, the Government confirms that disclosure of even the unclassified content
is prohibited by statute and falls under Exemption 3. See id. 114, 6, 7. As to CIA 8, 10, 12, and
77, the Government confirms that CIA conducted a line-by-line segregability analysis and any unclassified material is either mismarked or protected by Exemption 3. Second Suppl. CIA
Decl. 11 19, 20. Finally, the Government avers that, upon further review, CIA 30 was not responsive to Plaintiffs' FOIA request and it was inadvertently produced. Id. 1 21.
The Court is satisfied that the Government has met its obligation to perform a careful segregability review, including of content otherwise labeled as unclassified. Accordingly, Defendants' motion for summary judgment on this issue is GRANTED, and Plaintiffs' motion for summary judgment is DENIED.
C. Remaining Documents The parties dispute at length the scope of Exemption 5 and its application to the remaining 33 documents. However, the Court need not resolve these issues, as Plaintiffs do not contest the validity of the Government's assertion of Exemptions 1 and/or 3 as to these documents, aside from the segregability issue addressed above. SeeN Y Times Co. v. DOJ, 806 F.3d 682, 687 (2d Cir. 2015) ("Whether or not 'working law,' the documents are classified and thus protected under Exemption 1 ...."). Accordingly, the Court only briefly discusses Exemptions 1 and 3. The Government may withhold records under Exemption 1 if the records are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). To satisfy its burden on summary judgment, the
8

Case 1:13-cv-09198-KMW Document 112 Filed 08/17/17 Page 9 of 10
Government must establish through affidavits "that it complied with proper procedures in classifying materials and that the withheld information falls within the substantive scope" of a particular executive order. Amnesty Int'l USA v. CIA, 728 F. Supp. 2d 479, 506 (S.D.N.Y. 2010) (citing Salisbury v. United States, 690 F.2d 966, 971-72 (D.C. Cir. 1982)). However, "the Court is 'mindful that issues of national security are within the unique purview of the executive branches, and that as a practical matter, few judges have the skill or experience to weigh the repercussions of disclosure of intelligence information."' Id (quoting Physicians for Human Rights v. DOD, 675 F. Supp. 2d 149, 166 (D.D.C. 2009)). Accordingly, the Court gives deference to the Government's justifications for classifying information. Id; see also Wilner, 592 F.3d at 76 ("Recognizing the relative competencies of the executive and judiciary, ... it is bad law and bad policy to 'second-guess the predictive judgments made by the government's intelligence agencies' regarding questions such as whether disclosure of [classified] records would pose a threat to national security." (quoting Larson, 565 F.3d at 865)).
Under FOIA Exemption 3, the Government is permitted to withhold information that is "specifically exempted from disclosure by [a] statute." 5 U.S.C. § 552(b)(3). "[T]he sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within that statute's coverage." Amnesty Int'l USA, 728 F. Supp. 2d at 501 (quoting Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978)).
The Government has met its burden under Exemptions 1 and 3 as to the remaining documents. First, as to NSD 12, 13, 14, 23, 33, and 49, and NSA 11 and 12, the NSA declarant has averred that the documents are properly classified and properly withheld under Exemption 1, and that the documents discuss NSA data and intelligence collection efforts, which relate to topics protected from release by statute. Decl. of David J. Sherman ("NSA Decl.") ~~ 38-44
9

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(citing, inter alia, 50 U.S.C. §§ 3024(i)(l), 3605), ECF No. 64. Similarly, the NSA declaration

describes that NSA 14 through 21 and 28, which relate to NSA intelligence functions that are

protected from disclosure by statute, are classified at the secret or top-secret level and their

disclosure would harm NSA foreign intelligence activities. Id. ~~ 45-55. Finally, as to CIA 42,

43, 45, and 80-91, the CIA declaration explains that the documents are properly classified

because disclosure of CIA's intelligence-gathering techniques would reasonably be expected to

cause harm to national security, and the documents describe intelligence sources and methods

that are prohibited from disclosure by statute. Decl. of Antoinette B. Shiner ("CIA Decl.")

,-r~ 12-18, 19-21 (citing, inter alia, 50 U.S.C. § 3024(i)(l)), ECF No. 60.

The Court therefore concludes that the Government properly withheld these documents

under FOIA Exemptions 1 and/or 3, and therefore need not reach the parties' arguments

regarding Exemption 5. Accordingly, Plaintiffs' motion for summary judgment on this issue is

DENIED and Defendants' motion for summary judgment is GRANTED.

IV. CONCLUSION

For the reasons stated above, Defendants' motion is GRANTED and Plaintiffs' motion is

DENIED. The Court believes that this order resolves all remaining issues. If the parties

disagree, they shall file a letter on the docket within 30 days explaining any outstanding issues.

The Clerk of Court is directed to terminate the motions at ECF Nos. 99 and 106 and to close the

case.

SO ORDERED.

Dated: August 17, 2017 New York, New York

KIMBA M. WOOD United States District Judge

10

 
 General Docket Court of Appeals, 2nd Circuit
Court of Appeals Docket #: 17-3399 Nature of Suit: 2895 STATUTES-FOIA 1974 American Civil Liberties Union v. National Security Agency Appeal From: SDNY (NEW YORK CITY) Fee Status: Paid

Docketed: 10/20/2017 Termed: 05/30/2019

Case Type Information: 1) Civil 2) United States 3) -

Originating Court Information:

District: 0208-1 : 13-cv-9198

Trial Judge: Kimba M. Wood, U.S. District Judge

Date Filed: 12/30/2013

Date

Date Order/Judgment Date NOA

Order/Judgment:

EOD:

Filed:

08/22/2017

08/22/2017

10/20/2017

Date Rec'd COA:
10/20/2017

Prior Cases: None

Current Cases: None

Panel Assignment: Not available

American Civil Liberties Union Plaintiff - Appellant

Ashley Gorski, Esq., Direct: 212-284-7305 [COR LD NTC Retained] American Civil Liberties Union Foundation 18th Floor 125 Broad Street New York, NY 10004
David A. Schulz, Direct: 212-850-6103 [COR NTC -] Ballard Spahr LLP 19th Floor 1675 Broadway New York, NY 10019

Patrick Toomey, Esq., Direct: 212-519-7816 [COR NTC Retained] American Civil Liberties Union of New York 18th Floor 125 Broad Street New York, NY 10004

American Civil Liberties Union Foundation Plaintiff - Appellant
------------------------------

Ashley Gorski, Esq., Direct: 212-284-7305 [COR LD NTC Retained] (see above)
Patrick Toomey, Esq., Direct: 212-519-7816 [COR NTC Retained] (see above)

National Security Agency Defendant - Appellee

Jean-David Barnea, Assistant United States Attorney [COR NTC US Attorney] United States Attorney's Office for the Southern District of New York 86 Chambers Street New York, NY 10007
David S. Jones, Assistant U.S. Attorney Direct: 212-637-2739 [COR NTC US Attorney] United States Attorney's Office for the Southern District of New York 3rd Floor 86 Chambers Street New York, NY 10007
Benjamin H. Torrance, Assistant U.S. Attorney [COR NTC US Attorney] United States Attorney's Office for the Southern District of New York 86 Chambers Street New York, NY 10007

Central Intelligence Agency Defendant - Appellee
United States Department of Defense Defendant - Appellee
United States Department of Justice Defendant - Appellee

Jean-David Barnea, Assistant United States Attorney [COR NTC US Attorney] (see above)
David S. Jones, Assistant U.S. Attorney Direct: 212-637-2739 [COR NTC US Attorney] (see above)
Benjamin H. Torrance, Assistant U.S. Attorney [COR NTC US Attorney] (see above)
Jean-David Barnea, Assistant United States Attorney [COR NTC US Attorney] (see above)
David S. Jones, Assistant U.S. Attorney Direct: 212-637-2739 [COR NTC US Attorney] (see above)
Benjamin H. Torrance, Assistant U.S. Attorney [COR NTC US Attorney] (see above)
Jean-David Barnea, Assistant United States Attorney [COR NTC US Attorney] (see above)
David S. Jones, Assistant U.S. Attorney Direct: 212-637-2739 [COR NTC US Attorney] (see above)
Benjamin H. Torrance, Assistant U.S. Attorney [COR NTC US Attorney] (see above)

United States Department of State Defendant - Appellee

Jean-David Barnea, Assistant United States Attorney [COR NTC US Attorney] (see above)

David S. Jones, Assistant U.S. Attorney Direct: 212-637-2739 [COR NTC US Attorney] (see above)

Benjamin H. Torrance, Assistant U.S. Attorney [COR NTC US Attorney] (see above)

American Civil Liberties Union, American Civil Liberties Union Foundation, Plaintiffs - Appellants,
v. National Security Agency, Central Intelligence Agency, United States Department of Defense, United States Department of Justice, United States Department of State,
Defendants - Appellees,

10/20/2017

1
18 pg, 102.01 KB

NOTICE OF CIVIL APPEAL, with district court docket, on behalf of Appellant American Civil Liberties Union and American Civil Liberties Union Foundation, FILED. [2154368] [17-3399] [Entered: 10/23/2017 04:12 PM]

10/20/2017 2
1 pg, 36.83 KB

DISTRICT COURT JUDGMENT, dated 08/22/2017, RECEIVED.[2154377] [17-3399] [Entered: 10/23/2017 04:14 PM]

10/20/2017 3

PAYMENT OF DOCKETING FEE, on behalf of Appellant American Civil Liberties Union and American Civil Liberties Union Foundation, district court receipt # 0208-14269822, FILED.[2154378] [17-3399] [Entered: 10/23/2017 04:15 PM]

10/20/2017 4

ELECTRONIC INDEX, in lieu of record, FILED.[2154379] [17-

16 pg, 106.2 KB 3399] [Entered: 10/23/2017 04:15 PM]

10/23/2017 6
1 pg, 62.77 KB

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellee Central Intelligence Agency, Department of Defense, Department of Justice, Department of State and National Security Agency, FILED. Service date 10/23/2017 by CM/ECF. [2154521] [17-3399] [Entered: 10/23/2017 05:56 PM]

10/23/2017 7
1 pg, 61.32 KB

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellee Central Intelligence Agency, Department of Defense, Department of Justice, Department of State and National Security Agency, FILED. Service date 10/23/2017 by CM/ECF. [2154524] [17-3399] [Entered: 10/23/2017 06:08 PM]

10/24/2017 8

ATTORNEY, Jean-David Barnea for National Security Agency Department of Justice Department of State Department of Defense Central Intelligence Agency, in case 17-3399, [6], ADDED.[2154645] [17-3399] [Entered: 10/24/2017 09:13 AM]

10/24/2017 9

ATTORNEY, David S. Jones for National Security Agency Department of Justice Department of State Department of Defense Central Intelligence Agency, in case 17-3399, [7], ADDED.[2154648] [17-3399] [Entered: 10/24/2017 09:14 AM]

10/24/2017 10
1 pg, 9.4 KB

CAPTION, United States added to the three Departments listed as Appellees, AMENDED.[2154915] [17-3399] [Entered: 10/24/2017 11:11 AM]

11/03/2017 11
81 pg, 2.61 MB

FORM C, on behalf of Appellant American Civil Liberties Union and American Civil Liberties Union Foundation, FILED. Service date 11/03/2017 by CM/ECF.[2164422] [17-3399] [Entered: 11/03/2017 02:50 PM]

11/03/2017 12
1 pg, 43.47 KB

FORM D, on behalf of Appellant American Civil Liberties Union and American Civil Liberties Union Foundation, FILED. Service date 11/03/2017 by CM/ECF.[2164423] [17-3399] [Entered: 11/03/2017 02:51 PM]

11/03/2017 13
2 pg, 75.16 KB

ACKNOWLEDGMENT AND NOTICE OF APPEARANCE, on behalf of Appellant American Civil Liberties Union and American Civil Liberties Union Foundation, FILED. Service date 11/03/2017 by CM/ECF.[2164444] [17-3399] [Entered: 11/03/2017 03:00 PM]

11/03/2017 16
1 pg, 60.57 KB

ACKNOWLEDGMENT AND NOTICE OF APPEARANCE, on behalf of Appellee Central Intelligence Agency, National Security Agency, United States Department of Defense, United States Department of Justice and United States Department of State, FILED. Service date 11/03/2017 by CM/ECF.[2164709] [17-3399] [Entered: 11/03/2017 04:33 PM]

11/06/2017 17
1 pg, 165.66 KB

LR 31.2 SCHEDULING NOTIFICATION, on behalf of Appellant American Civil Liberties Union and American Civil Liberties Union Foundation, informing Court of proposed due date 02/02/2018, RECEIVED. Service date 11/06/2017 by CM/ECF.[2165978] [17-3399] [Entered: 11/06/2017 05:21 PM]

11/08/2017 19
1 pg, 79.78 KB

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellant American Civil Liberties Union and American Civil Liberties Union Foundation, FILED. Service date 11/08/2017 by CM/ECF. [2167828] [17-3399] [Entered: 11/08/2017 01:03 PM]

11/08/2017 20

ATTORNEY, Patrick Toomey for American Civil Liberties Union Foundation American Civil Liberties Union, in case 17-3399, [19], ADDED.[2167937] [17-3399] [Entered: 11/08/2017 01:56 PM]

12/11/2017 23
1 pg, 9.17 KB

NEW CASE MANAGER, Elizabeth Munoz, ASSIGNED.[2191857] [17-3399] [Entered: 12/11/2017 06:51 PM]

12/13/2017 26
1 pg, 37.07 KB

SO-ORDERED SCHEDULING NOTIFICATION, setting Appellant American Civil Liberties Union and American Civil Liberties Union Foundation Brief due date as 02/02/2018. Joint Appendix due date as 02/02/2018, FILED.[2193355] [17-3399] [Entered: 12/13/2017 12:05 PM]

02/02/2018

27
60 pg, 919.53 KB

BRIEF, on behalf of Appellant American Civil Liberties Union and American Civil Liberties Union Foundation, FILED. Service date 02/02/2018 by CM/ECF.[2228641] [17-3399] [Entered: 02/02/2018 09:34 PM]

02/02/2018 28

JOINT APPENDIX, volume 1 of 2, (pp. 1-242), on behalf of

245 pg, 20.44 MB Appellant American Civil Liberties Union and American Civil

Liberties Union Foundation, FILED. Service date 02/02/2018 by

CM/ECF.[2228642] [17-3399] [Entered: 02/02/2018 09:45 PM]

02/02/2018 29

JOINT APPENDIX, volume 2 of 2, (pp. 243-489), on behalf of

250 pg, 17.19 MB Appellant American Civil Liberties Union and American Civil

Liberties Union Foundation, FILED. Service date 02/02/2018 by

CM/ECF.[2228643] [17-3399] [Entered: 02/02/2018 09:53 PM]

02/02/2018 30
108 pg, 3.2 MB

SPECIAL APPENDIX, on behalf of Appellant American Civil Liberties Union and American Civil Liberties Union Foundation, FILED. Service date 02/02/2018 by CM/ECF.[2228644] [17-3399] [Entered: 02/02/2018 09:54 PM]

02/07/2018 31
1 pg, 31.22 KB

LR 31.2 SCHEDULING NOTIFICATION, on behalf of Appellee Central Intelligence Agency, National Security Agency, United States Department of Defense, United States Department of Justice and United States Department of State, informing Court of proposed due date 05/04/2018, RECEIVED. Service date 02/07/2018 by CM/ECF.[2231222] [17-3399] [Entered: 02/07/2018 01:40 PM]

02/13/2018 39
1 pg, 16.87 KB

SO-ORDERED SCHEDULING NOTIFICATION, setting Appellee Central Intelligence Agency, National Security Agency, United States Department of Defense, United States Department of Justice and United States Department of State Brief due date as 05/04/2018, FILED.[2234859] [17-3399] [Entered: 02/13/2018 02:14 PM]

05/01/2018 41
8 pg, 353.86 KB

MOTION, to extend time, on behalf of Appellant American Civil Liberties Union and American Civil Liberties Union Foundation, FILED. Service date 05/01/2018 by CM/ECF. [2292738] [173399] [Entered: 05/01/2018 04:26 PM]

05/03/2018 44
1 pg, 79.51 KB

MOTION ORDER, granting motion to extend time to submit the reply brief [41] filed by Appellant American Civil Liberties Union and American Civil Liberties Union Foundation, FILED. [2294161][44] [17-3399] [Entered: 05/03/2018 09:56 AM]

05/03/2018 45
1 pg, 36.91 KB

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellant American Civil Liberties Union and American Civil Liberties Union Foundation, FILED. Service date 05/03/2018 by CM/ECF. [2294622] [17-3399] [Entered: 05/03/2018 02:09 PM]

05/04/2018

46
65 pg, 305.28 KB

BRIEF, on behalf of Appellee Central Intelligence Agency, National Security Agency, United States Department of Defense, United States Department of Justice and United States Department of State, FILED. Service date 05/04/2018 by CM/ECF. [2295863] [17-3399] [Entered: 05/04/2018 04:01 PM]

05/16/2018 49
1 pg, 31.75 KB

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellant American Civil Liberties Union and American Civil Liberties Union Foundation, FILED. Service date 05/16/2018 by CM/ECF. [2304757] [17-3399] [Entered: 05/16/2018 04:54 PM]

05/16/2018 50

ATTORNEY, David A. Schulz for American Civil Liberties Union, in case 17-3399 , [49], ADDED.[2304863] [17-3399] [Entered: 05/16/2018 07:15 PM]

05/17/2018 51
1 pg, 99.18 KB

ORAL ARGUMENT STATEMENT LR 34.1 (a), on behalf of filer Attorney Ashley Gorski, Esq. for Appellant American Civil Liberties Union and American Civil Liberties Union Foundation, FILED. Service date 05/17/2018 by CM/ECF. [2305049] [173399] [Entered: 05/17/2018 10:06 AM]

05/17/2018 53
1 pg, 78.73 KB

ORAL ARGUMENT STATEMENT LR 34.1 (a), on behalf of filer Attorney Jean-David Barnea for Appellee Central Intelligence Agency, National Security Agency, United States Department of

Defense, United States Department of Justice and United States Department of State, FILED. Service date 05/17/2018 by CM/ECF. [2305145] [17-3399] [Entered: 05/17/2018 10:59 AM]

06/15/2018

55
36 pg, 416.97 KB

REPLY BRIEF, on behalf of Appellant American Civil Liberties Union Foundation and American Civil Liberties Union, FILED. Service date 06/15/2018 by CM/ECF. [2326391] [17-3399] [Entered: 06/15/2018 07:05 PM]

07/03/2018 57
1 pg, 193 KB

LETTER, on behalf of Appellant American Civil Liberties Union and American Civil Liberties Union Foundation, informing the Court of availability for oral argument, RECEIVED. Service date 07/03/2018 by CM/ECF.[2337764] [17-3399]--[Edited 07/03/2018 by EM] [Entered: 07/03/2018 12:06 PM]

07/12/2018 60

CASE CALENDARING, for the week of 10/09/2018, PROPOSED.[2344047] [17-3399] [Entered: 07/12/2018 04:04 PM]

09/05/2018 61

CASE CALENDARING, for argument on 10/12/2018, SET.[2382109] [17-3399] [Entered: 09/05/2018 10:55 AM]

09/05/2018 62
2 pg, 17.21 KB

ARGUMENT NOTICE, to attorneys/parties, TRANSMITTED.[2382768] [17-3399] [Entered: 09/05/2018 04:25 PM]

09/11/2018 65
1 pg, 36.84 KB

ORDER, dated 09/11/2018, adjourning oral argument for October 12, 2018, oral argument will be rescheduled at a later date, FILED.[2387009] [17-3399] [Entered: 09/11/2018 04:39 PM]

09/11/2018 66

CASE CALENDARING, for argument on 12/04/2018, SET.[2387015] [17-3399] [Entered: 09/11/2018 04:42 PM]

10/23/2018 67
2 pg, 17.19 KB

ARGUMENT NOTICE, to attorneys/parties, TRANSMITTED.[2416627] [17-3399] [Entered: 10/23/2018 03:34 PM]

10/24/2018 68
1 pg, 199.43 KB

NOTICE OF HEARING DATE ACKNOWLEDGMENT, on behalf of Appellee Central Intelligence Agency, National Security Agency, United States Department of Defense, United States Department of Justice and United States Department of State, FILED. Service date 10/24/2018 by CM/ECF. [2417535] [173399] [Entered: 10/24/2018 02:16 PM]

10/24/2018 69

NOTICE OF HEARING DATE ACKNOWLEDGMENT, on

1 pg, 245.17 KB behalf of Appellant American Civil Liberties Union and American

Civil Liberties Union Foundation, FILED. Service date 10/24/2018

by CM/ECF. [2417821] [17-3399] [Entered: 10/24/2018 05:00 PM]

12/04/2018 70

CASE, before JAC, DAL, L. SCHOFIELD, HEARD.[2448549] [17-3399] [Entered: 12/04/2018 04:09 PM]

03/21/2019 72

NEW CASE MANAGER, Tynetta Wilder, ASSIGNED.[2522827]

1 pg, 9.17 KB [17-3399] [Entered: 03/21/2019 10:44 AM]

05/30/2019 74

NEW CASE MANAGER, Yana Segal, ASSIGNED.[2575797]

1 pg, 9.17 KB [17-3399] [Entered: 05/30/2019 03:04 PM]

05/30/2019 75

OPINION, affirming the 08/22/2017 judgment of the District

51 pg, 422.26 KB Court, by JAC, DAL, L. SCHOFIELD, FILED.[2575805] [17-

3399] [Entered: 05/30/2019 03:09 PM]

05/30/2019 79

JUDGMENT, FILED.[2575877] [17-3399] [Entered: 05/30/2019

1 pg, 50.86 KB 03:33 PM]

06/04/2019 80

INTERNET CITATION NOTE: Material from decision with

78 pg, 922.88 KB internet citation, ATTACHED.[2579532] [17-3399] [Entered:

06/04/2019 02:13 PM]

06/04/2019 81

INTERNET CITATION NOTE: Material from decision with

308 pg, 16.87 MB internet citation, ATTACHED.[2579540] [17-3399] [Entered:

06/04/2019 02:16 PM]

06/04/2019 82
4 pg, 1.07 MB

INTERNET CITATION NOTE: Material from decision with internet citation, ATTACHED.[2579542] [17-3399] [Entered: 06/04/2019 02:17 PM]

06/04/2019 83

INTERNET CITATION NOTE: Material from decision with

49 pg, 996.9 KB internet citation, ATTACHED.[2579543] [17-3399] [Entered:

06/04/2019 02:17 PM]

06/04/2019 84

INTERNET CITATION NOTE: Material from decision with

746 pg, 53.89 MB internet citation, ATTACHED.[2579546] [17-3399] [Entered:

06/04/2019 02:19 PM]

06/04/2019 85

INTERNET CITATION NOTE: Material from decision with

2 pg, 676.75 KB internet citation, ATTACHED.[2579548] [17-3399] [Entered:

06/04/2019 02:19 PM]

06/04/2019 86
43 pg, 3.1 MB

INTERNET CITATION NOTE: Material from decision with internet citation, ATTACHED.[2579554] [17-3399] [Entered: 06/04/2019 02:21 PM]

06/04/2019 87

INTERNET CITATION NOTE: Material from decision with

2 pg, 973.35 KB internet citation, ATTACHED.[2579555] [17-3399] [Entered:

06/04/2019 02:22 PM]

06/04/2019 88

INTERNET CITATION NOTE: Material from decision with

164 pg, 15.8 MB internet citation, ATTACHED.[2579560] [17-3399] [Entered:

06/04/2019 02:22 PM]

08/12/2019 89

JUDGMENT MANDATE, ISSUED.[2629514] [17-3399]

50 pg, 900.86 KB [Entered: 08/12/2019 10:53 AM]

08/14/2019 90

ERRATA SHEET, for Opinion dated 05/30/2019, by JAC.

1 pg, 23.09 KB FILED.[2632277] [17-3399] [Entered: 08/14/2019 02:52 PM]

 
 Case 17-3399, Document 75-1, 05/30/2019, 2575805, Page1 of 49
17‐3399‐cv Am. Civil Liberties Union v. Nat’l Sec. Agency
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2018
No. 17‐3399‐cv
AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
Plaintiffs‐Appellants,
v.
NATIONAL SECURITY AGENCY, CENTRAL INTELLIGENCE AGENCY, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES
DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF STATE, Defendants‐Appellees.
On Appeal from the United States District Court for the Southern District of New York
ARGUED: DECEMBER 4, 2018 DECIDED: MAY 30, 2019

Case 17-3399, Document 75-1, 05/30/2019, 2575805, Page2 of 49
Before: CABRANES, LIVINGSTON, Circuit Judges, and SCHOFIELD, District Judge.*
Plaintiffs‐Appellants, the American Civil Liberties Union and the American Civil Liberties Union Foundation (jointly, “the ACLU”), requested documents concerning the legal authority for certain national security programs from Defendants‐Appellees, several federal agencies (jointly, “the Government”). After exhausting administrative remedies, the ACLU filed suit under the Freedom of Information Act (“FOIA”), requesting that the District Court compel disclosure. To defend the decision to withhold several documents, the Government invoked specific statutory exemptions, including FOIA Exemption 5, which protects from disclosure attorney‐client and deliberative communications. The District Court (Kimba M. Wood, Judge) granted summary judgment in the Government’s favor, holding that the agencies properly withheld the documents under FOIA. On appeal, the ACLU argues that Exemption 5 does not apply because the Government adopted or incorporated the disputed documents when it “relied on” the legal advice contained therein. We conclude that under Exemption 5, an agency (1) “adopts” a previously privileged document where the agency’s statements or behavior indicate that the agency treats the document as binding authority, and (2) “incorporates” a previously privileged document “by reference”
* Judge Lorna G. Schofield, of the United States District Court for the Southern District of New York, sitting by designation.
2

Case 17-3399, Document 75-1, 05/30/2019, 2575805, Page3 of 49
where a formal agency opinion or decision explicitly relies on that document and its reasoning. We find no such adoption or incorporation to have occurred in this case. Accordingly, we affirm the judgment of the District Court.
_______ ASHLEY GORSKI (Patrick Toomey, American Civil Liberties Union Foundation, New York, NY; Hannah Bloch‐Wehba, David Schulz, Sebastian Brady, Diana Lee, Paulina Perlin, Media Freedom and Information Access Clinic, Abrams Institute, Yale Law School, New Haven, CT, on the brief), American Civil Liberties Union Foundation, New York, NY, for Plaintiffs‐Appellants. JEAN‐DAVID BARNEA (David S. Jones and Benjamin H. Torrance, Assistant United States Attorneys, on the brief), Assistant United States Attorney, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, for Defendants‐Appellees.
________
3

Case 17-3399, Document 75-1, 05/30/2019, 2575805, Page4 of 49
JOSÉ A. CABRANES, Circuit Judge:
The American people have the right to know the laws and policies that bind our government and its agencies. At the same time, government officials must be able to receive confidential legal advice and deliberate frankly. Sometimes, these principles appear contradictory. We can, however, accommodate both by carefully defining the boundary between law, on the one hand, and advice, on the other. Put simply, law binds. Accordingly, when inquiring whether a document constitutes an agency’s “effective law and policy” or whether it merely contains legal or policy advice, courts should inquire whether officials regarded the document as binding. This inquiry allows courts to distinguish between advice, which may be kept secret, and a government’s effective law and policy, to which a strong presumption of public access attaches.
Plaintiffs‐Appellants, the American Civil Liberties Union and the American Civil Liberties Union Foundation (jointly, “the ACLU”), requested documents concerning the legal authority for certain national security programs from Defendants‐Appellees, several federal agencies (jointly, “the Government”). After exhausting administrative remedies, the ACLU filed suit under the Freedom of Information Act (“FOIA”), requesting that the District Court compel disclosure. To defend the withholdings, the Government invoked specific statutory exemptions, including FOIA Exemption 5, which protects from disclosure attorney‐client and deliberative communications. The District Court (Kimba M. Wood, Judge) granted summary judgment in the Government’s favor, holding that the
4

Case 17-3399, Document 75-1, 05/30/2019, 2575805, Page5 of 49
agencies properly withheld the documents under FOIA. On appeal, the ACLU argues that Exemption 5 does not apply because the Government adopted or incorporated the disputed documents when it “relied on” the legal advice contained therein. We conclude that under Exemption 5, an agency (1) “adopts” a previously privileged document where the agency’s statements or behavior indicate that the agency treats the document as binding authority, and (2) “incorporates” a previously privileged document “by reference” where a formal agency opinion or decision explicitly relies on that document and its reasoning. We find no such adoption or incorporation to have occurred in this case. Accordingly, we affirm the judgment of the District Court.
I. BACKGROUND
A. Executive Order 12,333 and the ACLU’s FOIA Request
On December 4, 1981, President Reagan issued Executive Order 12,333 (“EO 12,333”), entitled “United States Intelligence Activities.”1 The order sought to regulate the “effective conduct of United States intelligence activities” and “protect[ ] . . . constitutional rights.”2 Amended numerous times over the last four decades, EO 12,333 has long served as a “principal Executive Branch authority for foreign intelligence activities.”3 Today, it remains “one of the primary
1 Exec. Order No. 12,333, 46 Fed. Reg. 59,941 (Dec. 4, 1981). 2 Id. 3 President’s Review Grp. on Intelligence and Commc’ns Techs., Liberty and Security in a Changing World: Report and Recommendations of the Presidentʹs
5

Case 17-3399, Document 75-1, 05/30/2019, 2575805, Page6 of 49
authorities that allow agencies of the intelligence community . . . to gather foreign intelligence.”4
In the wake of the terrorist attacks of September 11, 2001 and the subsequent expansion of intelligence operations, EO 12,333 became the subject of renewed public attention. On May 13, 2013, the ACLU submitted requests to several federal agencies “seeking the release of records that describe the government’s understanding of its surveillance authority under [EO] 12,333” and “the rules that regulate the government’s acquisition, retention, use, and dissemination of the communications of Americans swept up in that surveillance.”5 In requesting the documents, the ACLU invoked FOIA, a federal statute enacted in 1966 that facilitates the public release of most government records.6
The agencies resisted disclosing the requested records. On December 30, 2013, after exhausting administrative remedies, the
Review Grp. on Intelligence and Commcʹns Techs 69 (Dec. 12, 2013), https://obamawhitehouse.archives.gov/sites/default/files/docs/2013‐12‐ 12_rg_final_report.pdf.
4 Am. Civil Liberties Union v. Nat’l Sec. Agency, No. 13 Civ. 09198 (KMW)(JCF), 2017 WL 1155910, at *1 (S.D.N.Y. Mar. 27, 2017) (“ACLU I”).
5 Joint Appendix (“J.A.”) 24. The ACLU submitted the requests to the Central Intelligence Agency, the Defense Intelligence Agency, the Federal Bureau of Investigation, the National Security Agency, the United States Department of State, the National Security Division, and the Office of Legal Counsel. See ACLU I, 2017 WL 1155910, at *2.
6 See 5 U.S.C. § 552; see also N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975).
6

Case 17-3399, Document 75-1, 05/30/2019, 2575805, Page7 of 49
ACLU filed suit under FOIA’s cause‐of‐action provision, seeking to compel the release of the documents.7
During the litigation, the Government voluntarily produced hundreds of pages of responsive material. Nevertheless, the Government continued to withhold certain documents, claiming they were exempt from disclosure under specific statutory exemptions.
In early 2016, the parties cross‐moved for summary judgment regarding the lawfulness of the Government’s decision to withhold the documents. On March 27, 2017, the District Court denied the ACLU’s motion in full, and granted the Government’s motion in part, approving the Government’s decision to withhold most documents, but requiring more detailed justifications for several remaining documents. The District Court then reviewed supplementary briefing from both sides on renewed cross‐motions for summary judgment with respect to the remaining documents. On August 17, 2017, the District Court granted the Government’s renewed motion for
7 Under FOIA, requesting parties may petition a district court “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). District courts must review an agency’s decision to withhold records de novo to ensure that the decision complies with FOIA’s substantive requirements. Id. The agency, meanwhile, bears the burden of “sustain[ing] its action”—i.e., the decision to withhold. Id.
7

Case 17-3399, Document 75-1, 05/30/2019, 2575805, Page8 of 49
summary judgment and denied the ACLU’s cross‐motion.8 Judgment was entered on August 22, 2017.
B. The Contested Documents
On appeal, the ACLU contests the District Court’s rulings with respect to seven documents. 9
OLC 10. The first document, “OLC 10,” is a 108‐page memorandum, dated May 6, 2004, from the Assistant Attorney General for the Office of Legal Counsel (“OLC”), Jack L. Goldsmith, III, to Attorney General Alberto Gonzales. The general functions of the OLC include “assisting the Attorney General in the performance of his functions as legal adviser to the President” in part by “advising as to the [ ] form and legality” of Executive orders and actions.10 The OLC memorandum, titled “Re: Review of the Legality of the STELLAR WIND Program,” examines a “highly classified and strictly
8 See Am. Civil Liberties Union v. Nat’l Sec. Agency, No. 13 Civ. 9198 (KMW) (JCF), 2017 WL 6387731, at *1 (S.D.N.Y. Aug. 17, 2017) (“ACLU II”).
9 Initially, the ACLU also challenged the decision to withhold an eighth document, “OLC 8.” While this appeal was pending, however, the Government reprocessed and released most of that document. Accordingly, the ACLU is “no longer seeking disclosure of that memorandum.” Reply Br. Appellants 3 n.1.
10 28 C.F.R. § 0.25; see also Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Justice, 846 F.3d 1235, 1238 (D.C. Cir. 2017) (discussing the role of OLC generally); Morrison v. Olson, 487 U.S. 654, 700 (1988) (Scalia, J., dissenting) (explaining that the role of Assistant Attorney General for OLC is “a post that has traditionally had responsibility for providing legal advice to the President (subject to approval of the Attorney General)”). Justice Scalia, like Chief Justice Rehnquist before him, served in this role.
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compartmented program of electronic surveillance” authorized by President George W. Bush in response to the attacks of September 11, 2001.11 The memorandum reviews the program’s history and analyzes its legality under EO 12,333, applicable statutes, and the United States Constitution.12
The District Court concluded that OLC 10 is exempt from disclosure under FOIA Exemption 5 because the document is both an attorney‐client communication and a deliberative, pre‐decisional government memorandum.
Intelligence Program Documents. The remaining six documents13 each contains legal advice from Department of Justice attorneys concerning “[National Security Agency (“NSA”)] programs or other intelligence activities.”14
According to a sworn declaration from a senior NSA official, five of these six documents (NSD 12, 13, 14, and 33, and NSA 11) concern “particular intelligence sources, and related methods used to
11 J.A. 276‐77. 12 See id. at 276‐351. 13 The documents are identified individually as NSA 11 and NSD 12, 13, 14, 33, and 49. Collectively, we refer to them as “the intelligence program documents.” 14 ACLU I, 2017 WL 1155910, at *14 (NSA 11); id. at *12 (NSD 12, 13, 14, 33, and 49).
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collect and process foreign communications.”15 The disclosure of these documents “would [therefore] demonstrate the capabilities and limitations” of the United States’ signals intelligence systems.16 Similarly, disclosure of the sixth document (NSD 49) would “tend[ ] to identify the targets of intelligence‐gathering efforts, reveal the specific collection techniques and methods employed, and contain details concerning the locations and timing of that collection.”17
The District Court held that FOIA exempts these six intelligence program documents from disclosure because they contain classified and sensitive national security information.18
C. The Government’s Public Statements It is undisputed that the contested documents have never been released in unredacted form. The Government has, however, discussed similar subject matter in several public statements. A central issue on appeal is whether these public statements—delivered over a period of 13 years—undermine the Government’s claims of attorney‐ client and deliberative process privilege with respect to OLC 10.
15 J.A. 154 ¶ 38 (Declaration of David J. Sherman, Associate Director for Policy and Records).
16 Id. at 154 ¶ 39. 17 Am. Civil Liberties Union v. Nat’l Sec. Agency, No. 13 Civ. 9198 (KMW) (JCF), Dkt. No. 60 at 15 ¶ 16 (Declaration of Antoinette B. Shiner, Information Review Officer for the Litigation Information Review Office, CIA). 18 ACLU II, 2017 WL 6387731, at *6.
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First, in a December 19, 2005 White House press briefing, Attorney General Gonzales discussed the “legal underpinnings” of the Stellar Wind program.19 In that briefing, Gonzales explained that the program was authorized by Congress’s 2001 Authorization for the Use of Military Force (“AUMF”), and was in any event a legal exercise of the President’s inherent constitutional authority as Commander‐in‐ Chief. Gonzales did not mention OLC opinions in his prepared remarks, and when asked about the possibility of releasing an OLC opinion, responded, “Iʹm not confirming the existence of opinions or the non‐existence of opinions. I’ve offered up today our legal analysis of the authorities of this President.”20
Second, on January 19, 2006, the Department of Justice transmitted to Congress a “White Paper” entitled “Legal Authorities Supporting the Activities of the National Security Agency Described by the President.”21 According to an accompanying letter, the document was “prepared by the Department of Justice to provide a detailed analysis of the legal basis” for certain NSA activities initiated
19 Office of the Press Sec’y, Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence, WHITE HOUSE, (Dec. 19, 2005), https://georgewbush‐ whitehouse.archives.gov/news/releases/2005/12/20051219‐1.html (“2005 Press Briefing”).
20 Id. 21 Legal Authorities Supporting the Activities of the National Security Agency Described by the President, DEP’T OF JUST. (Jan. 19, 2006), https://www.justice.gov/sites/default/files/olc/opinions/attachments/2015/05/29/op ‐olc‐v030‐p0001.pdf (“White Paper”).
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in the aftermath of the September 11, 2001 attacks.22 The White Paper briefly describes NSA surveillance activities and discusses their legality in light of the ongoing threat from Al‐Qaeda and pursuant to statutory authorities and the United States Constitution. The paper contains “[m]uch of the legal reasoning” first articulated in OLC 10.23
Third, on February 6, 2006, Attorney General Gonzales stated, during a hearing before the Senate Judiciary Committee, that he “agreed with the [Office of Legal Counsel’s] legal analysis” concerning the Stellar Wind program.24
Fourth, on July 10, 2009, the Inspectors General of five agencies completed and submitted a classified 747‐page comprehensive report concerning the Stellar Wind program (“the Joint IG Report”) to several committees of Congress.25 At the same time, the Inspectors General
22 Id. at 1. 23 Offices of Inspectors General, Report on the President’s Surveillance Program, Vol. 1 at 49 (July 10, 2009), https://oig.justice.gov/reports/2015/PSP‐09‐18‐ 15‐full.pdf (“Joint IG Report”). 24 Wartime Executive Power and the National Security Agency’s Surveillance Authority: Hearings Before the S. Comm. on the Judiciary, 109th Cong. 55 (2006), available at 2006 WL 270364 (“2006 Hearing”). 25 The report was prepared by the Inspectors General of the Department of Justice, Department of Defense, Office of the Director of National Intelligence, CIA, and NSA. It was delivered to the Senate Select Committee on Intelligence, the Senate Committee on the Judiciary, the House Permanent Select Committee on Intelligence, and the House Committee on the Judiciary. See Joint IG Report note 23, ante, at iii.
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also publicly released a shorter, unclassified version of the report;26 the Government did not declassify and release a redacted version of the full report until April 2015.27 The full report discusses the drafting of OLC 10 under the heading “A New Legal Basis for the Program Is Adopted.”28
Fifth, in February 2016, the Government made public a previously classified letter (“OLC 9”) from Deputy Assistant Attorney General John C. Yoo to Judge Colleen Kollar‐Kotelly, then Presiding Judge of the Foreign Intelligence Surveillance Court. 29 The letter, dated May 17, 2002, “discusses the President’s power to deploy expanded electronic surveillance techniques” and “outlines the legal justifications for such surveillance.”30
Finally, while this appeal was pending, the Government reprocessed and released a less‐redacted version of an additional
26 See Offices of Inspectors General, Unclassified Report on the President’s Surveillance Program (July 10, 2009), available at https://oig.justice.gov/special/s0907.pdf.
27 IC on the Record Database: Results, OFF. OF THE DIRECTOR OF NAT’L INTELLIGENCE, https://www.intelligence.gov/ic‐on‐the‐record‐database/advanced‐ search?keyword=&date=9&sdate=03%2F31%2F2015&edate=05%2F01%2F2015&t opic=&catid=#results (indicating April 25, 2015 as the date of publication); see also Charlie Savage, Government Releases Once‐Secret Report on Post‐9/11 Surveillance, N. Y. TIMES (April 24, 2015) available at https://www.nytimes.com/interactive/2015/04/25/us/25stellarwind‐ig‐report.html.
28 See Joint IG Report, note 23, ante, at 37‐39. 29 J.A. 253‐54, 257. 30 See id. at 393.
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document, “OLC 8.” This document, a November 2, 2001 memorandum written by Deputy Assistant Attorney General Yoo, explains, inter alia, “legal issues pertaining to surveillance under E.O 12333.”31
II. DISCUSSION We review a district court’s grant of summary judgment in FOIA litigation de novo.32 In conducting our review, we first clarify the scope of FOIA and its exemptions, as well as the concepts of “working law,” “adoption” and “incorporation.” Applying these principles, we affirm the conclusion of the District Court that OLC 10 is exempt from disclosure under FOIA Exemption 5. We similarly affirm its conclusion that the six intelligence program documents are exempt from disclosure under FOIA Exemptions 1 and 3. Finally, we reject the ACLU’s request that we “order the re‐processing of the documents,” that is, compel the agencies to once again review the contested documents to ensure that only privileged and undisclosed, classified information is redacted.33
31 Id. at 259. 32 See, e.g., New York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100, 112 (2d Cir. 2014) (“N.Y. Times I”); see also Halpern v. F.B.I., 181 F.3d 279, 287 (2d Cir. 1999) (declining to “depart from a pure de novo standard”). 33 Br. Appellants 47.
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A. FOIA and its Exemptions Passed in 1966, FOIA was intended to “permit access to official
information long shielded unnecessarily from public view.”34 FOIA thus establishes a default rule in favor of Government disclosure, providing that an “agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person.”35 As the Supreme Court has explained, “virtually every document generated by an agency is available to the public in one form or another, unless it falls within one of the [FOIA]’s nine exemptions.”36 In accordance with FOIAʹs purposes, the statutory exemptions are “narrowly construed.”37
Our case concerns three of these exemptions: Exemption 1 exempts records that have been properly classified “in the interest of national defense or foreign policy.”38 Exemption 3 exempts records that a statute other than FOIA prohibits from disclosure.39 Finally,
34 Envtl. Prot. Agency v. Mink, 410 U.S. 73, 80 (1973). 35 5 U.S.C. § 552(a)(3)(A). 36 Sears, 421 U.S. at 136. 37 F.B.I. v. Abramson, 456 U.S. 615, 630 (1982); see also Natʹl Council of La Raza v. Depʹt of Justice, 411 F.3d 350, 356 (2d Cir. 2005). 38 5 U.S.C. § 552(b)(1)(A). 39 Id. § 552(b)(3).
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Exemption 5 exempts records that would be privileged in litigation.40 The District Court upheld the redaction of OLC 10 under Exemption 5, and the decision to withhold the intelligence program documents under Exemptions 1 and 3. We review each holding in turn.
B. OLC 10 and FOIA Exemption 5 Exemption 5 exempts from FOIA’s disclosure requirements
“inter‐agency or intra‐agency memorandums [sic] or letters that would not be available by law to a party other than an agency in litigation with the agency.”41 This exemption “incorporate[s] into the FOIA all the normal civil discovery privileges,”42 including “traditional common law privileges against disclosure” such as “the attorney‐client and deliberative process privileges.”43 Here, the District Court upheld the redaction of OLC 10 pursuant to both privileges.44 We agree.
1. The Attorney‐Client Privilege As we have explained in prior decisions, “[t]he attorney‐client privilege protects confidential communications between client and counsel made for the purpose of obtaining or providing legal
40 Id. § 552(b)(5). 41 Id. 42 Hopkins v. U.S. Dep’t of Hous. & Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991). 43 N.Y. Times I, 756 F.3d at 104. 44 ACLU I, 2017 WL 1155910, at *10.
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assistance.”45 The privilege functions to “encourage attorneys and their clients to communicate fully and frankly and thereby to promote broader public interests in the observance of law and administration of justice.”46
In the context of legal advice to government officials, “the privilege furthers a culture in which consultation with government lawyers is accepted as a normal, desirable, and even indispensable part of conducting public business. Abrogating the privilege undermines that culture and thereby impairs the public interest.”47 The public interest in ensuring that government officials receive sound legal advice is at its apex when the programs about which advice is sought are secret and unlikely to be subject to litigation. In such cases, the frank exchange between government officials and their attorneys serves as a crucial—and maybe the only—safeguard in ensuring the legality of government action.
The scope of the privilege follows directly from these purposes. The privilege protects “communications (1) between a client and his or her attorney (2) that are intended to be, and in fact were, kept
45 In re Cnty. of Erie, 473 F.3d 413, 418 (2d Cir. 2007). 46 Id. (internal quotation marks omitted); see also Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (explaining that one purpose of the privilege is “to encourage clients to make full disclosure to their attorneys” (internal quotation marks omitted)). 47 In re Grand Jury Investigation, 399 F.3d 527, 534 (2d Cir. 2005).
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confidential (3) for the purpose of obtaining or providing legal advice.”48
OLC 10 meets these requirements easily. First, as reflected in the index the Government provided to the ACLU, OLC 10 was prepared by an OLC attorney (Assistant Attorney General Goldsmith) for an Executive Branch client (the Attorney General, and eventually, the President).49 The document is thus a communication between an attorney and a client.
Second, the memorandum was written with the understanding that “OLC legal advice is generally kept confidential,”50 it was “communicated in confidence,”51 and “none of [its redacted portions] have been previously publicly disclosed.”52 The redacted sections of OLC 10 were thus intended to be, and actually were, kept confidential.
And third, by its own description, OLC 10 is one in a series of memoranda which “advised” the Attorney General that certain presidential actions “would satisfy relevant constitutional standards.”53 Moreover, as we have previously explained, OLC
48 United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011); see also Brennan Ctr. for Justice v. U.S. Depʹt of Justice, 697 F.3d 184, 207 (2d Cir. 2012).
49 J.A. 259, 276‐77; see also note 10, ante (citing Morrison, 487 U.S. at 700). 50 Id. at 244 ¶ 3 (Declaration of Paul P. Colborn, Special Counsel, OLC). 51 Id. at 250 ¶ 19. 52 Id. at 256 ¶ 34. 53 Id. at 284.
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memoranda “provide, in their specific contexts, legal advice as to what a department or agency is permitted to do.”54 The communication thus provided legal assistance.55
The ACLU does not seriously challenge this analysis. Instead, it argues that while OLC 10 was initially protected by the attorney‐client privilege, the Government subsequently waived the privilege through “official acknowledgments” and “public reliance.”56
The ACLU’s assertion of a doctrine of waiver by “official acknowledgment” reflects a basic misunderstanding of the attorney‐ client privilege. This privilege protects confidential communications between an attorney and a client. The “official acknowledgment” doctrine, however, precludes the Government from withholding
54 New York Times Co. v. U.S. Depʹt of Justice, 806 F.3d 682, 687 (2d Cir. 2015) (“N.Y. Times II”) (internal quotation marks and emphasis omitted).
55 That the Attorney General might have transmitted OLC 10 to the White House does not change our analysis. As the OLC declarant explained, “[t]he principal function of OLC is to assist the Attorney General in her role as legal adviser to the President of the United States and to departments and agencies of the Executive Branch.” J.A. 244 ¶ 2; see also 28 C.F.R. § 0.25 (OLC advises as to the “form and legality” of proposed Executive orders, proclamations and regulations “prior to their transmission to the President.”). Accordingly, if OLC 10 was transmitted to the White House, then this transmission is also a communication between an attorney (the Attorney General) and a client (the White House); intended to be and kept confidential; and offered for the purpose of advising the President of the law governing a proposed action. Id. at 277, 284.
56 Br. Appellants 34‐35.
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information on the basis that it is classified after the Government has disclosed substantially the same information.57
But such informational disclosures have no effect on whether a communication is protected by the attorney‐client privilege.58 The attorney‐client privilege “protects communications rather than information.”59 We have therefore explained that the attorney‐client privilege is not “lost by the mere fact that the information communicated [between attorney and client] is otherwise available to the public.”60 The concept of “official acknowledgment” is thus irrelevant to the Exemption 5 inquiry and cannot provide an independent basis for overcoming Exemption 5.61
57 See N.Y. Times I, 756 F.3d at 119‐20. The principle underlying the “official acknowledgment” doctrine is intuitive: once information is no longer secret, it cannot be protected simply “because it is secret.”
58 Upjohn, 449 U.S. at 395 (explaining that the attorney‐client privilege “protects disclosure of communications; it does not protect disclosure of the underlying facts”).
59 In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1037 (2d Cir. 1984).
60 United States v. Cunningham, 672 F.2d 1064, 1073 n.8 (2d Cir. 1982); see also In re Grand Jury Subpoenas Dated Oct. 22, 1991, and Nov. 1, 1991, 959 F.2d 1158, 1165 (2d Cir. 1992) (discussing generally the difference between information‐ based and communication‐based privileges).
61 This concept is instead suitable for the Exemptions 1 and 3 inquiries, where the Government seeks to withhold documents on the ground that they contain classified information. See, e.g., N. Y. Times I, 756 F.3d at 113, 120 (outlining the “three‐part test for ‘official disclosure,’ relevant to Exemption 1”).
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By contrast, there is precedent for the ACLU’s argument that the Government’s “public reliance” on a document erodes its otherwise privileged status. While we have not used the precise phrase “public reliance,” we have indeed held that “the attorney‐client privilege may not be invoked to protect a document adopted as, or incorporated by reference into, an agency’s policy.”62
This rule—that an incorporated or adopted document is no longer protected by privilege—mirrors the general “fairness doctrine” that governs the implicit waiver of privilege during litigation.63 As we have previously explained, “courts have found waiver by implication when a client testifies concerning portions of the attorney‐client communication . . . and when a client asserts reliance on an attorneyʹs advice as an element of a claim or defense.”64 And so we have consistently rejected parties’ attempts to withhold attorney‐client communications from a litigation adversary while relying on the same material to advance a claim in court.65 To put it simply, in court, a party
62 La Raza, 411 F.3d at 360. 63 See In re von Bulow, 828 F.2d 94, 101 (2d Cir. 1987); see also Brennan Ctr., 697 F.3d at 208 (“A party’s reliance on an otherwise privileged communication to assert a claim or defense is similar to the type of express adoption or incorporation by reference that vitiates Exemption 5 protection”). 64 Cnty. of Erie, 546 F.3d at 228 (quoting Sedco Int’l S.A. v. Cory, 683 F.2d 1201, 1206 (8th Cir.1982)) (internal brackets and ellipses omitted). 65 John Doe Co. v. United States, 350 F.3d 299, 303 (2d Cir. 2003); see also George A. Davidson & William H. Voth, Waiver of the Attorney‐Client Privilege, 64 OR. L. REV. 637, 646‐53 (1986).
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may not wield a privileged communication as both a “shield and a sword.”66
A similar principle applies when the Government “adopts” or “incorporates” a previously privileged document as its effective law and policy.67 Just as a litigating party may not offer a privileged communication to invoke the law while maintaining the privilege, so too the Government may not expressly adopt a privileged communication as its effective law or policy while maintaining the privilege. As we explain below, however, in this case the Government has neither expressly “adopted” OLC 10, nor “incorporated [it] by reference.”68
2. The Deliberative Process Privilege In addition to the attorney‐client privilege, OLC 10 also meets the requirements of the “deliberative process privilege.” Like the attorney‐client privilege, the deliberative process privilege ensures “frank discussion” and protects agencies from being “forced to operate in a fishbowl.”69 But whereas the attorney‐client privilege promotes legal compliance in particular, the deliberative
66 In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000). 67 See Brennan Ctr., 697 F.3d at 195 (holding that Exemption 5 does not apply “when the contents have been adopted, formally or informally, as the agency position on an issue”). 68 See Section II.3.b at 37‐40, post. 69 Mink, 410 U.S. at 87 (internal quotation marks omitted).
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process privilege promotes reasoned policy‐making in general. As the Supreme Court has explained, “the frank discussion of legal or policy matters in writing might be inhibited if the discussion were made public,” and “the decisions and policies formulated would be the poorer as a result.”70 Accordingly, a document may be withheld pursuant to this privilege if it is: “(1) predecisional, i.e., prepared in order to assist an agency decisionmaker in arriving at his decision, and (2) deliberative, i.e., actually . . . related to the process by which policies are formulated.”71
We think it clear that OLC 10 meets these criteria as well. As we have previously recognized, “OLC does not purport, and in fact lacks authority, to make policy decisions. OLC’s legal advice and analysis informs the decisionmaking of Executive Branch officials on matters of policy, but OLC’s legal advice is not itself dispositive as to any policy adopted.”72 Moreover, the unredacted portions of OLC 10 make clear that OLC’s role in the Stellar Wind authorization process was exclusively predecisional and deliberative. The document responds to
70 Sears, 421 U.S. at 150‐51 (internal quotation marks omitted). Although Sears discusses an “executive privilege” rather than a “deliberative process privilege,” we have held that “[t]he deliberative process privilege . . . is encompassed within the executive privilege.” Grand Cent. Pʹship, Inc. v. Cuomo, 166 F.3d 473, 481 (2d Cir. 1999) (internal quotation marks omitted).
71 La Raza, 411 F.3d at 356 (internal quotation marks omitted). 72 Brennan Ctr., 697 F.3d at 203 (citing an OLC declaration); see also N.Y. Times II, 806 F.3d at 687 (“OLC documents are not working law. At most, they provide, in their specific contexts, legal advice as to what a department or agency is permitted to do.” (internal quotation marks omitted)).
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the Attorney General’s request that OLC undertake a “thorough reexamination” of the legality of presidential directives concerning Stellar Wind.73 As OLC 10 explains, the Attorney General would consult OLC advice (such as OLC 10) in choosing whether to approve the program “as to form and legality.”74 OLC 10 thus preceded and directly related to the Attorney General’s approval decision.75
3. The Limits of Exemption 5
As we have previously explained, “[j]ust because a document satisfies [the above] requirements, however, does not mean that the deliberative process [or attorney‐client] privilege bars its disclosure.”76 The ACLU therefore relies on three doctrines (which it calls “exceptions”) to argue that the Government must release additional portions of OLC 10.77 The ACLU claims (1) that OLC 10 contains “working law,”78 (2) that OLC 10 was “adopted,” or (3) that OLC 10
73 J.A. 277. 74 Id. at 284. 75 Indeed, the Attorney General’s approval of the Stellar Wind program “as to form and legality” was itself merely a predecisional and deliberative step before the actual policy decision was made by the President—i.e., the decision to reauthorize Stellar Wind. Id. 76 La Raza, 411 F.3d at 356. 77 Properly understood, these doctrines are not “exceptions” to Exemption 5 at all. Rather, they are tell‐tale indicators that, notwithstanding its appearance, a document simply is not protected by the deliberative process and attorney‐client privileges. 78 Br. Appellants 18‐23.
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was “incorporated by reference” as agency policy.79 Although each of these terms emerges from our caselaw, ACLU’s arguments reveal that our prior decisions have not yet adequately defined these concepts and the relationship between them. We therefore accept the parties’ invitation to clarify the contours of Exemption 5 and the doctrines that define its limits.
a. Effective Law and Policy The Supreme Court first provided clear guidance regarding the limits of FOIA Exemption 5 in 1975 in N.L.R.B v. Sears, Roebuck & Co.80 Drawing a clear distinction between deliberative material and documents that embody law and policy, the Supreme Court explained: Exemption 5, properly construed, calls for disclosure of all opinions and interpretations which embody the agency’s effective law and policy, and the withholding of all papers which reflect the agency’s group thinking in the process of working out its policy and determining what its law shall be.81 The logic of this dichotomy is straightforward. The deliberative process privilege protects “communications received by the decisionmaker on the subject of the decision prior to the time the
79 Id. at 23‐25. 80 421 U.S. 132 (1975). 81 Id. at 153 (internal quotation marks omitted).
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decision is made” to ensure that the subsequent decision will be fully informed.82 By contrast, there is little need to preserve the confidentiality of discussions that take place after a decision has been made and rendered as the agency’s “effective law and policy.”83
Although the conceptual distinction between pre‐decisional advice and post‐decisional explanation is clear, these materials might look quite similar in practice. For instance, a letter advising an agency’s leader on how to interpret a statute could look identical to a letter informing an agency subordinate about how the agency interprets a statute.
In light of the potential for conflation, the doctrines of “working law,” “express adoption,” and “incorporation by reference” assist courts in applying this conceptual distinction.84 As we now explain, “working law” describes a category of post‐decisional material, and “express adoption” and “incorporation by reference” describe two methods by which pre‐decisional material can become post‐decisional.
82 Id. at 151‐53. 83 See id. 84 See Brennan Ctr., 697 F.3d at 201 (“The question of whether a document constitutes working law, or has been expressly adopted or incorporated by reference, then, are two paths to determining whether a withheld document constitutes what FOIA affirmatively requires to be disclosed.” (internal quotation marks omitted)).
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i. Working Law As might be expected from the phrase itself, a document embodies an agency’s “working law” when the document binds agency officials or members of the public. In other words, working law announces what an agency’s law is, not what the law might be. Because such a document has operative effect—i.e., binding rather than persuasive power—it is inherently post‐decisional. In reaching this conclusion, we find instructive certain cases of the Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit”), to which we have referred as “a specialist” in differentiating privileged material from working law.85 The D.C. Circuit has repeatedly employed a functional test to determine whether a document constitutes “working law,” inquiring whether the agency treats the document as binding. For instance, in Coastal States Gas Corp. v. Department of Energy, the case from which the working law doctrine emerged, the D.C. Circuit held that when an agency circulated and consulted certain documents as a source of binding authority, these documents were a post‐decisional “functioning body of secret law.”86 In that case, the plaintiffs sought disclosure of agency “memoranda from regional counsel to auditors . . . issued in response to requests for interpretations of regulations within the context of particular facts
85 Id. at 200. 86 617 F.2d 854, 866 (D.C. Cir. 1980) (internal quotation marks omitted).
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encountered while conducting an audit of a firm.”87 Evidence revealed that agency auditors did not simply regard the contested memoranda as persuasive or advisory, but that the memoranda “were retained and referred to as precedent.”88 In particular, the D.C. Circuit determined that auditors could not “freely disregard[]” these memoranda, but would request they be “rescinded, amended, or referred to a higher authority.”89 Bound by the directions contained therein, agency auditors then “actually applied” these directions in their “dealings with the public.”90 These features led the D.C. Circuit to conclude that the memoranda were not simply pre‐decisional legal advice, but the product of the decision‐making process. The agency had, through the circulation of these documents, “promulgated a body of secret law.”91
Similarly, in Tax Analysts v. Internal Revenue Service, the D.C. Circuit found that legal memoranda issued by the IRS’s Office of Chief Counsel to officials in the field constituted “working law” even though the memoranda were “nominally non‐binding.”92 Despite their nominally advisory status, the memoranda had been distributed to ensure “the promotion of uniformity throughout the country on
87 Id. at 858. 88 Id. at 869. 89 Id. 90 Id. 91 Id. 92 117 F.3d 607, 617 (D.C. Cir. 1997).
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significant questions of tax law.”93 Because these memoranda functioned as precedent rather than mere guidance, the D.C. Circuit concluded that they constituted “working law” rather than pre‐ decisional advice.94
As we have previously noted, “[o]ur Court has relatively little case law examining the ‘working law’ principle.”95 Those few precedents we do have, however, are entirely consistent with the principle that emerges from the D.C. Circuit cases—namely, that working law must be binding.96
To decide the instant case, we need not reach a comprehensive definition of “working law.” But we do identify a few guiding principles to district courts faced with the task of determining whether a document is functionally binding and hence, “working law.” Such principles include: whether agency officials feel free to disregard the document’s instructions;97 whether an agency superior distributes the
93 Id. (internal quotation marks omitted). 94 Id. at 619. 95 Brennan Ctr., 697 F.3d at 201. 96 See id. at 198 (equating “working law” with “final opinions” or reports that have “operative effect”); N.Y. Times II, 806 F.3d at 687 (explaining that OLC opinions are not “working law” subject to disclosure because “[a]t most, they provide, in their specific contexts, legal advice as to what a department or agency is permitted to do” (internal quotation marks omitted)). 97 See Coastal States, 617 F.2d at 869.
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document to subordinates (rather than vice versa); 98 whether agency superiors direct their subordinates to follow the document’s instructions;99 whether the document is applied in the agency’s dealings with the public;100 and whether failure to follow a document’s instructions provides cause for professional sanction. These factors all provide indications as to whether a document has become binding on agency officials and therefore represents an agency’s “effective law and policy.”101
ii. Express Adoption Occasionally, documents drafted as pre‐decisional material will ultimately be recycled and reissued as an agency’s “working law.” The doctrine of “express adoption” describes a process by which courts can discern whether a document first drafted as legal or policy advice has become an agency’s “effective law and policy.” For instance, an agency’s director might receive a memorandum from counsel advising him or her how to conduct a program in accordance with law. The director might then distribute that document to subordinates with instructions to obey the advice rendered therein. After such distribution, the document is no longer privileged. The reason is straightforward: while the initial
98 See Jordan v. U.S. Depʹt of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978). 99 Id. 100 Coastal States, 617 F.2d at 866. 101 Sears, 421 U.S. at 153.
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communication was deliberative and pre‐decisional, the subsequent communication was a promulgation of “working law,” and therefore post‐decisional and no longer privileged.
Because the adoption process is usually internal and hidden from public view, our Court’s “express adoption” cases have generally looked for external evidence that such adoption has occurred. In New York Times Co. v. Department of Justice (“New York Times I”), for instance, we held that certain Government disclosures fatally undermined the Government’s claims that an (initially classified and advisory) OLC memorandum was privileged.102 We noted that senior government officials engaged in “an extensive public relations campaign to convince the public” of the lawfulness of a government program,103 and we observed that Attorney General Eric Holder invoked the disputed OLC memorandum as authority for the purposes of that campaign.104 We also highlighted the Senate testimony of then‐ Assistant to the President for Homeland Security and Counterterrorism (and incoming Director of the CIA) John O. Brennan that “Office of Legal Counsel advice establishes the legal boundaries
102 See N.Y. Times I, 756 F.3d at 116. 103 Id. at 114. 104 Id. at 116; see also Oversight of the U.S. Department of Justice Before the Senate Committee on the Judiciary, 113th Cong. (Mar. 6, 2013), available at https://fas.org/irp/congress/2013_hr/doj.pdf (explaining that the relevant legal standard would be “more clear if it is read in conjunction with the underlying OLC advice”).
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within which we can operate.”105 Together, these statements revealed that the OLC memorandum was no longer simply advice to a policy‐ maker, but that the Government afforded the memorandum binding force within the Executive Branch as its “effective law and policy.”106
Although less explicit, our decision in National Council of La Raza v. Department of Justice, rests on similar reasoning.107 In that case, we held that the Department of Justice expressly adopted a 2002 OLC
105 Id. at 111; see also id. at 116. (“[T]he deliberative process privilege [and] the attorney‐client privilege may not be invoked to protect a document adopted as, or incorporated by reference into, an agency’s policy. Here, the Government has done so by publicly asserting that OLC advice ‘establishes the legal boundaries within which we can operate.’”) (internal quotation marks and citations omitted). In context, Mr. Brennan’s statement clearly refers specifically to OLC advice concerning the Government’s targeted killing program. See Nomination of John O. Brennan to be Director of the Central Intelligence Agency: Hearing Before the S. Select Comm. on Intelligence, 113 Cong. 44 (Feb. 7, 2013) (“Brennan Hearing”), https://www.intelligence.senate.gov/hearings/open‐hearing‐ nomination‐john‐o‐brennan‐be‐director‐central‐intelligence‐agency#.
106 To be clear, the Government’s public statements serve as express evidence that the Government adopted the OLC memorandum as binding on the CIA. The remarks themselves do not, however, constitute adoption. Indeed, Mr. Brennan (who was not yet CIA Director when he made these statements), lacked the authority to adopt the OLC memorandum as binding authority. Adoption occurs when an agency itself accepts a previously deliberative document as binding, or actually acts (or refrains from acting) pursuant to the binding instruction (i.e., as “working law”) of that document. See Elec. Frontier Found. v. U.S. Depʹt of Justice, 739 F.3d 1, 11 (D.C. Cir. 2014).
107 La Raza, 411 F.3d at 350. Admittedly, our opinion in La Raza is somewhat imprecise regarding whether “adoption” or “incorporation” provided the precise basis for our decision, or even whether there is a difference between the two. As we define and explain the terms, however, La Raza is best understood as a case of express adoption.
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memorandum authorizing state governments to make arrests for civil violations of federal immigration provisions.108 We noted that the Attorney General and his senior staff repeatedly invoked the OLC memorandum not just to defend its own policy, but as embodying this new policy.109 These official statements, we explained, “demonstrate[d] that [DOJ] regarded the Memorandum as the exclusive statement of . . . its new policy.”110 Moreover, DOJ’s effective promulgation of this OLC memorandum, as revealed in its public statements, carried substantive legal effects for “what a third party— state and local law enforcement—should and could lawfully do.”111 The statements therefore amounted to “powerful evidence that [DOJ] explicitly adopted the OLC Memorandum as part of its policy.”112
Similarly, in Brennan Center for Justice v. Department of Justice, we found that public statements revealed that the United States Agency for International Development (“USAID”) had adopted an OLC memorandum.113 In particular, we pointed to a USAID policy
108 Id. at 357‐58. 109 Id. at 353‐55. 110 Id. at 357. 111 Id. at 359 (internal quotation marks omitted). 112 Id. at 359–60. 113 Brennan Ctr., 697 F.3d at 204‐05. As in La Raza, our opinion in Brennan Center is unclear about whether “adoption” or “incorporation” provided the precise basis for our decision. Again, however, as we understand and explain the terms here, Brennan Center is best understood as a case of express adoption.
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document explaining that OLC had “determined” that a statutory funding restriction “only may be applied to foreign non‐governmental organizations and public international organizations.”114 Later, a senior USAID official confirmed that OLC’s determination had effectively dictated USAID’s new approach.115 Taken together, these USAID statements provided powerful evidence that senior agency officials related to OLC’s legal advice as binding authority, i.e. as “working law.” We therefore found that USAID adopted the OLC memorandum.
iii. Incorporation by Reference
A close cousin to the doctrine of “express adoption” is the doctrine of “incorporation by reference.” Much like adoption, an agency incorporates a document by reference when it transforms a previously advisory document into binding “working law.”116 But whereas in “express adoption” cases we look for indications that an agency relates to the document as binding, in cases of “incorporation
114 Id. at 204. 115 Id. (citing congressional testimony of Randall Tobias, the U.S. Global AIDS Coordinator, who explained that he was “simply following the legislation and the advice to implement that”). 116 When a party claims that a previously privileged document has been “incorporated by refence,” a court’s task is usually to decide whether a reference to that document itself promulgates the document as binding law. By contrast, in most “express adoption” cases, the court inquires whether an agency’s remarks about a previously privileged document provide evidence that the document has already been promulgated as working law. See note 106, ante.
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by reference,” we identify the agency’s enactment of that document as its law or policy through explicit textual reference in a final decision.117
The D.C. Circuit first recognized the doctrine of “incorporation by reference” in a 1969 case, American Mail Line, Ltd. v. Gulick.118 There, the court held that by stating “publicly in [a] ruling that its action was based upon [a specific] memorandum, [and] giving no other reasons or basis for its action,” the Maritime Subsidy Board of the Department of Commerce forfeited that memorandum’s “intra‐agency status” and incorporated it into “a public record” that “must be disclosed.”119
Six years later, in Sears, the Supreme Court endorsed the D.C. Circuit’s approach, holding that “if an agency chooses expressly to . . . incorporate by reference an intra‐agency memorandum previously covered by Exemption 5 in what would otherwise be a final opinion, that memorandum may be withheld only on the ground that it falls within the coverage of some exemption other than Exemption 5.”120
Importantly, American Mail Line and Sears limit “incorporation by reference” to circumstances where the disputed memorandum is
117 See, e.g., Gonzales v. Oregon, 546 U.S. 243, 254 (2006) (describing an agency interpretive rule as “[i]ncorporating the legal analysis of a memorandum . . . solicited from [OLC]”); see also Dispensing of Controlled Substances To Assist Suicide, 66 Fed. Reg. 56,607‐02 (Nov. 9, 2001) (promulgating an interpretive rule while incorporating a memorandum from the Attorney General).
118 411 F.2d 696 (D.C. Cir. 1969). 119 Id. at 703. 120 421 U.S. at 161.
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relied on in a “final opinion” or “ruling.” To decide the instant case, we need not define these terms precisely.121 But we think it clear that incorporation occurs only when the incorporating “opinion” is itself a document with functionally binding effect. This limitation is significant; a decisionmaker’s mere statements expressing his or her reliance on the reasoning of a separate memorandum do not amount to “incorporation” of that memorandum. The limitation is also sensible. Statements such as “we checked it with counsel,” or “we relied on the assessments of experts” are standard responses in congressional testimony or public statements. Appropriately, such statements cannot “incorporate by reference” external memoranda because such statements do not themselves have binding effect, either within the agency or on the public.
In sum, a previously privileged document is subject to disclosure under the doctrine of “incorporation by reference” only when an agency’s formal opinion or determination of law or policy expressly references and relies on that document and its reasoning as the basis for a decision.
b. Application
The above principles dictate the outcome of this case. The ACLU argues that “reliance on legal analysis as a basis for its operational
121 Among the open issues that we do not decide: whether an incorporating “final opinion” must (1) be public; (2) adjudicate the rights of individual, private parties; or (3) have the “force and effect of law,” see Chrysler Corp. v. Brown, 441 U.S. 281, 282 (1979).
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decisions transforms that analysis into working law.”122 Not so. As we have explained, a document is only “working law” when it operates as functionally binding authority on agency decision‐makers. Here, OLC 10 was drafted as legal advice rather than binding authority and so was not “working law” when created.123 To be sure, a document first drafted as legal advice can still be adopted as working law or incorporated into agency decisions. But mere agreement with a document’s reasoning and conclusion is insufficient to transform advice into law. Instead, the document must be treated as binding by the agency (i.e. “adoption”) or explicitly relied upon in a formal decision (i.e. “incorporation by reference”).
Here, there is no evidence that the Government ever “adopted” OLC 10 as binding; nor has the ACLU identified a single agency opinion that incorporates OLC 10 by reference.
The ACLU’s arguments to the contrary are unavailing. The ACLU first points to a publicly released 2006 “White Paper” that contains “much of the legal reasoning” in OLC 10.124 As we have
122 Reply Br. Appellants 3‐4. 123 See note 72, ante; see also Elec. Frontier Found., 739 F.3d at 9 (holding that an OLC opinion submitted to the FBI did not constitute “working law” because “OLC is not authorized to make decisions about the FBIʹs investigative policy, so the OLC Opinion cannot be an authoritative statement of the agencyʹs policy”); see also Citizens for Responsibility & Ethics in Washington v. United States Depʹt of Justice, 922 F.3d 480, 486 (D.C. Cir. 2019) (“An OLC opinion in the latter category qualifies as the ‘working law’ of an agency only if the agency has ‘adopted’ the opinion as its own.”). 124 Br. Appellants 25 (brackets omitted). See also note 23, ante.
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explained, however, disclosure of similar information to that contained in documents protected by the attorney‐client or deliberative process privileges does not waive the privilege. These privileges protect a communication, not information.125
Next, the ACLU contends that a series of public statements by the Government indicates either that OLC 10 is working law, or that the Government expressly adopted OLC 10, or that it incorporated OLC 10 by reference.126 In particular, the ACLU draws our attention to (1) a press briefing during which Attorney General Gonzalez described OLC 10 as analyzing the “legal underpinnings” of the Stellar Wind program;127 (2) an internal agency report, which states that OLC 10 provided “a new legal basis” for the program;128 and (3) Attorney
125 See Section II.B.1, ante. 126 The Government urges us not to consider certain public statements by the Government that were available when the parties were before the District Court, but that the ACLU did not explicitly raise in its briefing below. These statements include the 2005 White House press briefing by Attorney General Gonzales, the 2006 Senate testimony (also by Gonzales), and the 2006 DOJ White Paper. We decline to disregard these materials. The Government is, of course, correct that we do not ordinarily hear arguments made for the first time on appeal. See, e.g., Spinelli v. Nat’l Football League, 903 F.3d 185, 198 (2d Cir. 2018). The ACLU’s reference to these statements does not constitute a new argument, however, but simply new evidence in support of old arguments, which “appeals courts may entertain.” Eastman Kodak Co. v. STWB, Inc., 452 F.3d 215, 221 (2d Cir. 2006) Moreover, the Government’s subsequent public statements are precisely the sort of materials of which we may take judicial notice. See N.Y. Times I, 756 F.3d at 110 n.8. We therefore consider these statements in evaluating the ACLU’s claims. 127 See 2005 Press Briefing, note 19, ante. 128 See Joint IG Report, note 23, ante, at 37.
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General Gonzalez’s testimony before the Senate, in which he stated that he “agreed with [OLC’s] legal analysis.”129
These governmental disclosures illustrate, at most, the following: that OLC analyzed a legal question, that the Attorney General reviewed that analysis and agreed with it, and that the Attorney General then certified the program. None of the governmental disclosures indicate that the Attorney General (or any other official) ever distributed the OLC memorandum as binding precedent, or that officials within NSA or another agency ever regarded OLC 10 as binding authority.130 Nor do any of these disclosures represent an official decision or final opinion that explicitly references and relies on OLC 10; press briefings, congressional testimony, white papers and inspectors general reports might be informative, but they rarely, if ever, amount to official decisions or “final opinions.”
129 See 2006 Hearing, note 24, ante. 130 The section of the IG Report to which the ACLU points (entitled “A New Legal Basis for the Program is Adopted”) does not constitute evidence that OLC 10 was “expressly adopted” for several reasons: first, while the ACLU suggests that the “new legal basis” mentioned here refers to OLC 10, it seems that this section of the IG Report in fact describes a period prior to the writing of OLC 10. Moreover, it is not even clear that the “new legal basis” discussed here refers to a specific document at all. On the contrary, it seems more likely that the phrase “new legal basis” simply refers to a new interpretation of already‐extant constitutional and statutory law. In other words, there is no reason to assume that the IG Report used the word “adoption” as we employ it in this opinion; the IG Report may simply describe a shift in Administration lawyers’ best understanding of applicable law, not a promulgation of a new “policy.”
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It follows that OLC 10 was not created as working law, was never adopted as working law, and was never incorporated by reference. We therefore hold that OLC 10 is protected by the deliberative process and attorney‐client privileges, and was properly withheld under Exemption 5.
C. The Intelligence Program Documents We also affirm the District Court’s holding that the six
intelligence program documents are exempt from disclosure under FOIA Exemptions 1 and 3.
Exemption 1 permits agencies to withhold records that have been “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and . . . are in fact properly classified pursuant to such Executive order.”131 As relevant here, Executive Order 13,526 permits classification of information if it pertains to “intelligence sources or methods” or “foreign relations or foreign activities of the United States,” where “unauthorized disclosure of the information reasonably could be expected to result in damage to the national security.”132
FOIA Exemption 3 applies to records “specifically exempted from disclosure by statute.”133 Here, the Government has invoked
131 5 U.S.C. § 552(b)(1)(A). 132 Exec. Order No. 13,526, 75 Fed. Reg. 707, 707 § 1.1(a)(3)‐(4), 709 § 1.4(c)‐ (d) (Dec. 29, 2009). 133 5 U.S.C. § 552(b)(3).
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several statutes, including the National Security Act, which requires that the Director of National Intelligence “protect intelligence sources and methods from unauthorized disclosure.”134 The ACLU does not dispute that each law qualifies as an exemption statute under Exemption 3.135
The Government bears the burden of establishing that these exemptions apply, but it can do so by submitting affidavits showing that the statute’s application “appears logical or plausible.”136 Such affidavits must describe “with reasonably specific detail” how the withheld information “logically falls within the claimed exemption,” and must not be “controverted by either contrary evidence in the record nor by evidence of agency bad faith.”137
Here, the Government has met its burden. The requested intelligence program documents concern highly sensitive surveillance programs.138 A senior intelligence official has attested that each
134 50 U.S.C. § 3024(i)(1). In addition, the Government invokes statutory provisions related to the NSA, CIA, and communications intelligence activities generally. See 50 U.S.C. § 3605 (NSA); 50 U.S.C. § 3507 (CIA); 18 U.S.C. § 798 (setting forth criminal penalties for disclosure of classified information).
135 ACLU I, 2017 WL 1155910, at *16; see also CIA v. Sims, 471 U.S. 159, 168 (1985) (holding that an earlier version of the relevant National Security Act provision “qualifies as a withholding statute under Exemption 3”).
136 Wilner v. Natʹl Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009) (internal quotation marks omitted).
137 Id. (internal quotation marks omitted). 138 See, e.g., J.A. 178‐82.
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disputed document concerns “particular intelligence sources, and related methods used to collect and process foreign communications”; that the existence of these sources and methods is ”currently and properly classified”; and that disclosure of any meaningful part of these documents “would reveal core NSA foreign intelligence activities.”139
In response to these declarations, the ACLU suggests that the Government failed to segregate and release non‐exempt legal analysis.140 The ACLU points out that “the legal memoranda within the packages are quite lengthy,”141 and that, in light of the “volume and breadth of public information” about the Stellar Wind program, “it strains credulity to claim that disclosure of pure legal analysis related to the program could damage national security today.”142
Our credulity is not so easily strained. As we have previously observed, “the very fact that legal analysis was given concerning a planned operation would risk disclosure of the likelihood of that
139 Id. at 154 ¶ 38 (Declaration of David J. Sherman, Associate Director for Policy and Records, NSA). The Government’s classified declaration contains more detail about these documents’ sensitivity. See id. at 447.
140 FOIA “requires agencies and courts to differentiate among the contents of a document rather than to treat it as an indivisible ‘record’ for FOIA purposes.” Abramson, 456 U.S. at 626.
141 Br. Appellants 42. 142 Id. at 39.
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operation.”143 Similarly, disclosure of even “[m]inor details of intelligence information may reveal more information than their apparent insignificance suggests because, much like a piece of [a] jigsaw puzzle, each detail may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself.”144 We have long recognized that “in some circumstances legal analysis could be so intertwined with facts entitled to protection that disclosure of the analysis would disclose such facts.”145 Moreover, in this case, a senior national security official has affirmed that the legal analysis contained in these memoranda is “inextricably intertwined” with material that is both classified and protected by statute.146
In light of “the relative competencies of the executive and judiciary,” we generally adopt a “deferential posture in FOIA cases regarding the uniquely executive purview of national security.”147
143 N.Y. Times I, 756 F.3d at 119. 144 Wilner, 592 F.3d at 73 (internal quotation marks and brackets omitted). 145 N.Y. Times I, 756 F.3d at 119; see also N.Y. Times II, 806 F.3d at 687 (holding that certain OLC documents are entitled to protection because “it would be difficult to redact any arguably disclosable lines of legal analysis from these documents without disclosing the contents of [another protected] document”). 146 J.A. 450 ¶ 4 (Supplemental Declaration of David J. Sherman, Associate Director for Policy and Records, NSA). 147 Wilner, 592 F.3d at 76 (internal quotation marks omitted).
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Accordingly, we again decline to “second‐guess the predictive judgments made by the government’s intelligence agencies.”148
We therefore hold that the surveillance approval packages were properly withheld under Exemptions 1 and 3.
D. The Request for “Reprocessing” Lastly, we briefly address the ACLU’s request that we “order the re‐processing” of the contested documents in light of several governmental disclosures that post‐date the agency’s initial FOIA decision.149
The ACLU identifies three such disclosures: (1) the full Joint IG Report (released in September 2015), (2) OLC 9 (released in February 2016), and (3) OLC 8 (released while this appeal was pending). Although these disclosures are subsequent to the Government’s initial FOIA decision, the ACLU reminds us that it is “legally entitled to file a new FOIA request at any time,” and so urges us to consider these documents now in the interests of judicial economy.150
The Government responds that these disclosures cannot be the basis for such an order because “[a]s a general rule, a FOIA decision is evaluated as of the time it was made and not at the time of a court’s
148 Id. (internal quotation marks omitted). 149 Br. Appellants 47. 150 Reply Br. Appellants 20.
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review.”151 Relying on precisely this rule, the District Court declined to order reprocessing.152
Today, we reaffirm the general rule, and further hold that a court reviewing a FOIA decision must not order reprocessing simply to reassure itself that a correct decision remains current. As we have previously observed, “[t]o require an agency to adjust or modify its FOIA response based on post‐response occurrences could create an endless cycle of judicially mandated reprocessing each time some circumstance changes.”153 This case highlights the importance of our general practice. Indeed, one of the disclosures the ACLU urges us to consider—OLC 8—was released between the filing of the ACLUʹs appellate briefs. Imposing a continuing duty on agencies to update their responses to FOIA requests as “potentially relevant” documents (or, as is the case with the Joint IG Report, more sections of a certain document) are disclosed piecemeal renders agencies vulnerable to repeated reprocessing requests mid‐litigation. FOIA does not subject agencies or the courts to such “an endlessly moving target.”154
While we have occasionally departed from our general rule and considered subsequent developments as part of a FOIA review, we have done so only in exceptional circumstances. And crucially, we
151 N.Y. Times I, 756 F.3d at 110 n.8. 152 ACLU I, 2017 WL 1155910, at *22. 153 Florez v. C.I.A., 829 F.3d 178, 188 (2d Cir. 2016) (quoting Bonner v. Dep’t of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991)) (internal quotation marks omitted). 154 Bonner, 928 F.2d at 1153 (internal quotation mark omitted).
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have never ordered an agency to reprocess records simply to reassure ourselves that a FOIA decision remains up‐to‐date. In Florez v. Central Intelligence Agency, for instance, we remanded to the District Court in light of disclosures that post‐dated the Government’s decision to withhold particular documents.155 Critically, however, we noted that the agency had already voluntarily reprocessed the documents.156 Thus, our decision imposed no additional burden on the agency.
Similarly, in New York Times I, although we considered post‐ decision disclosures in our review, we did so only because reprocessing was unnecessary to decide whether the withheld documents were subject to disclosure.157 In that case, the CIA had replied to a FOIA request relating to a CIA targeted killing program with a “Glomar response”158—neither confirming nor denying the existence of a document.159 The CIA justified its Glomar response by stating that “the government has never disclosed . . . whether the CIA has an operational role in the use of targeted lethal force or is
155 Florez, 829 F.3d at 187‐88. 156 Id. at 188. 157 N.Y. Times I, 756 F.3d at 111 n.8 (“The Government’s post‐request disclosures go to the heart of the contested issue, and, as discussed below, are inconsistent with some of its prior claims.” (internal quotation marks, citations, and brackets omitted)). 158 The term derives from the Hughes Glomar Explorer, a vessel purportedly owned and operated by the CIA, which the Government refused to acknowledge. See Phillippi v. CIA, 546 F.2d 1009, 1010‐12 (D.C. Cir. 1976). 159 N.Y. Times I, 756 F.3d at 103, 105.
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authorized to use such force.”160 This statement was directly contradicted by the post‐request disclosures that discussed the CIA program explicitly.161 There was thus no question that, at the time of the appeal, the Governmentʹs “Glomar response” was no longer sustainable.162
The post‐request disclosures at issue in New York Times I were therefore not just potentially relevant, but clearly dispositive of the Government’s secrecy claims. Under such circumstances, declining to take judicial notice of public statements would serve no purpose. Ignoring such statements would have needlessly added work for the courts and simply delayed the inevitable for the agencies.
In sum, our Court has only departed from the general rule—that an agency’s FOIA decision is evaluated as of the time it was made— when doing so is in the clear interest of judicial economy and would not burden the agency with prudential reprocessing. Those are not the circumstances here. The Government has not already reprocessed the material in light of the subsequent disclosures, and the subsequent
160 Id. at 122 (brackets omitted). 161 Id. (“With CIA identified, the [Government’s] main argument for the use of Glomar . . . responses evaporates.”). 162 See Wilner, 592 F.3d at 70 (“An agency only loses its ability to provide a Glomar response when the existence or nonexistence of the particular records covered by the Glomar response has been officially and publicly disclosed.”).
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disclosures do not on their face plainly undermine the Government’s claimed privilege.
Accordingly, we decline to order reprocessing in light of the subsequent disclosures of portions of the Joint IG Report, OLC 9, and OLC 8.
III. CONCLUSION To summarize, we hold as follows: (1) A document reflects an agency’s “working law” when the
agency regards that document as functionally binding authority. “Adoption” and “incorporation by reference” are means by which an otherwise privileged document becomes an agency’s “working law.” (2) “Express adoption” is a basis for disclosure of a previously privileged document where an agency’s statements indicate that it now acts (or refrains from acting) pursuant to the document’s functionally binding authority. (3) “Incorporation by reference” is a basis for disclosure of a previously privileged document where an agency’s formal opinion or ruling explicitly relies on that document and its reasoning in reaching a decision. (4) OLC 10 was properly withheld under FOIA Exemption 5 (privileged communications).
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(5) The six intelligence program documents at issue were properly withheld under FOIA Exemptions 1 (classified information) and 3 (material shielded from disclosure by other statutes).
(6) Because FOIA decisions must be evaluated as of the time of the agency decision, courts should not order reprocessing simply to reassure themselves that a FOIA decision remains current in light of subsequent disclosures. We therefore decline to order reprocessing.
For the foregoing reasons, the August 22, 2017 judgment of the District Court is AFFIRMED.
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United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE
Date: May 30, 2019 Docket #: 17-3399cv Short Title: American Civil Liberties Union v. National Security Agency

CATHERINE O'HAGAN WOLFE
CLERK OF COURT
DC Docket #: 13-cv-9198 DC Court: SDNY (NEW YORK CITY) DC Judge: Wood

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The requirements for filing a bill of costs are set forth in FRAP 39. A form for filing a bill of costs is on the Court's website.
The bill of costs must: * be filed within 14 days after the entry of judgment; * be verified; * be served on all adversaries; * not include charges for postage, delivery, service, overtime and the filers edits; * identify the number of copies which comprise the printer's unit; * include the printer's bills, which must state the minimum charge per printer's unit for a page, a cover, foot lines by the line, and an index and table of cases by the page; * state only the number of necessary copies inserted in enclosed form; * state actual costs at rates not higher than those generally charged for printing services in New York, New York; excessive charges are subject to reduction; * be filed via CM/ECF or if counsel is exempted with the original and two copies.

Case 17-3399, Document 75-3, 05/30/2019, 2575805, Page1 of 1

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE
Date: May 30, 2019 Docket #: 17-3399cv Short Title: American Civil Liberties Union v. National Security Agency

CATHERINE O'HAGAN WOLFE
CLERK OF COURT
DC Docket #: 13-cv-9198 DC Court: SDNY (NEW YORK CITY) DC Judge: Wood

VERIFIED ITEMIZED BILL OF COSTS

Counsel for _________________________________________________________________________
respectfully submits, pursuant to FRAP 39 (c) the within bill of costs and requests the Clerk to prepare an itemized statement of costs taxed against the ________________________________________________________________
and in favor of _________________________________________________________________________
for insertion in the mandate.
Docketing Fee _____________________
Costs of printing appendix (necessary copies ______________ ) _____________________
Costs of printing brief (necessary copies ______________ ____) _____________________
Costs of printing reply brief (necessary copies ______________ ) _____________________

(VERIFICATION HERE)

________________________ Signature

 
 U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:13−cv−09198−KMW

CLOSED,ECF

American Civil Liberties Union et al v. National Secuirty Agency et al Assigned to: Judge Kimba M. Wood Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 12/30/2013 Date Terminated: 08/22/2017 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: Federal Question

American Civil Liberties Union

represented by Alexander Abraham Abdo American Civil Liberties Union, Women's Rights Proj 125 Broad Street New York, NY 10004 (212) 549−2500 x2517 Fax: (2120 549−2654 Email: alex.abdo@knightcolumbia.org TERMINATED: 01/04/2017

Ashley Marie Gorski American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212) 284−7305 Email: agorski@aclu.org ATTORNEY TO BE NOTICED

David A. Schulz Ballard Spahr LLP (NYC) 1675 Broadway, 19th Floor New York, NY 10019 (212) 850−6103 Fax: (212) 223−1942 Email: schulzd@ballardspahr.com ATTORNEY TO BE NOTICED

Hannah Bloch−Wehba Media Freedom & Information Access Clinic P.O. Box 208215 New Haven, CT 06520−8215 (203) 436−5824 Email: hannah.bloch−wehba@yale.edu ATTORNEY TO BE NOTICED

Jonathan Matthew Manes MacArthur Justice Center 160 E. Chicago Ave. Ste 6th Floor Chicago, IL 60611 312−503−0012 Fax: 312−503−0891 Email: jonathan.manes@yale.edu ATTORNEY TO BE NOTICED

Patrick Christopher Toomey American Civil Liberties Union

Plaintiff American Civil Liberties Union Foundation
V. Defendant National Security Agency
Defendant Central Intelligence Agency

Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212) 519−7816 Fax: (212) 549−2654 Email: ptoomey@aclu.org ATTORNEY TO BE NOTICED
represented by Alexander Abraham Abdo (See above for address) TERMINATED: 01/04/2017
Ashley Marie Gorski (See above for address) ATTORNEY TO BE NOTICED
David A. Schulz (See above for address) ATTORNEY TO BE NOTICED
Hannah Bloch−Wehba (See above for address) ATTORNEY TO BE NOTICED
Jonathan Matthew Manes (See above for address) ATTORNEY TO BE NOTICED
Patrick Christopher Toomey (See above for address) ATTORNEY TO BE NOTICED
represented by Jean−David Barnea U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212) 637−2679 Fax: (212) 637−2717 Email: jean−david.barnea@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Stuart Jones U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 212−637−2200 Fax: 212−637−2686 Email: david.jones6@usdoj.gov ATTORNEY TO BE NOTICED
represented by Jean−David Barnea (See above for address) LEAD ATTORNEY

Defendant Department of Defense
Defendant Department of Justice
Defendant Department of State

ATTORNEY TO BE NOTICED
David Stuart Jones (See above for address) ATTORNEY TO BE NOTICED
represented by Jean−David Barnea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Stuart Jones (See above for address) ATTORNEY TO BE NOTICED
represented by Jean−David Barnea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Stuart Jones (See above for address) ATTORNEY TO BE NOTICED
represented by Jean−David Barnea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Stuart Jones (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/30/2013
12/30/2013 12/30/2013 12/30/2013 01/10/2014
01/16/2014 01/16/2014

# Docket Text
1 COMPLAINT against Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Filing Fee $ 350.00, Receipt Number 1084393)Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(laq) Modified on 1/17/2014 (jd). (Entered: 01/07/2014)
SUMMONS ISSUED as to Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (laq) Modified on 1/17/2014 (jd). (Entered: 01/07/2014)
Magistrate Judge Michael H. Dolinger is so designated. (laq) (Entered: 01/07/2014)
Case Designated ECF. (laq) (Entered: 01/07/2014)
2 INITIAL PRETRIAL CONFERENCE ORDER: Initial Conference set for 3/31/2014 at 04:00 PM in Courtroom 15D, 500 Pearl Street, New York, NY 10007 before Judge Analisa Torres. The parties are directed to submit a joint letter by 2/21/2014, addressing the information further set forth in this Order. (Signed by Judge Analisa Torres on 1/10/2014) (tn) (Entered: 01/10/2014)
3 NOTICE OF APPEARANCE by Jonathan Matthew Manes on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation. (Manes, Jonathan) (Entered: 01/16/2014)
4 NOTICE OF APPEARANCE by David A.. Schulz on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation. (Schulz, David)

01/16/2014 01/16/2014 01/16/2014 01/16/2014 01/16/2014 01/16/2014 01/16/2014 01/16/2014 02/03/2014 02/03/2014
02/03/2014 02/07/2014 02/07/2014

(Entered: 01/16/2014)
5 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Abdo, Alexander) (Entered: 01/16/2014)
6 AFFIDAVIT OF SERVICE of Summons served on Eric H. Holder, Attorney General of the United States on 1/3/2014. Service was made by Mail. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Abdo, Alexander) (Entered: 01/16/2014)
7 AFFIDAVIT OF SERVICE of Summons served on Central Intelligence Agency on 1/3/2014. Service was made by Mail. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Abdo, Alexander) (Entered: 01/16/2014)
8 AFFIDAVIT OF SERVICE of Summons served on United States Department of Defense on 1/3/2014. Service was made by Mail. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Abdo, Alexander) (Entered: 01/16/2014)
9 AFFIDAVIT OF SERVICE of Summons served on United States Department of Justice on 1/3/2014. Service was made by Mail. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Abdo, Alexander) (Entered: 01/16/2014)
10 AFFIDAVIT OF SERVICE of Summons served on United States Department of State on 1/3/2014. Service was made by Mail. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Abdo, Alexander) (Entered: 01/16/2014)
11 AFFIDAVIT OF SERVICE of Summons served on National Security Agency on 1/3/2014. Service was made by Mail. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Abdo, Alexander) (Entered: 01/16/2014)
12 AFFIDAVIT OF SERVICE of Summons served on United States Attorney for the Southern District of New York on 1/3/2014. Service was made by Mail. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Abdo, Alexander) (Entered: 01/16/2014)
13 CONSENT LETTER MOTION for Extension of Time to file Answer and joint letter addressed to Judge Analisa Torres from Jonathan M. Manes dated 02/03/2014. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Attachments: # 1 Text of Proposed Order)(Manes, Jonathan) (Entered: 02/03/2014)
14 ORDER granting 13 Letter Motion for Extension of Time: that Defendants' current deadline of February 5, 2014 to Answer the original Complaint, filed December 30, 2013, is adjourned and Defendants shall file their Answer to Plaintiffs' Amended Complaint by no later than February 21, 2014; the parties' current deadline of February 21, 2014, to submit to the Court their joint letter and proposed Case Management Plan and Scheduling Order is adjourned to February 28, 2014; and the initial pretrial conference, scheduled for March 31, 2014 at 4:00 p.m., will not be disturbed. (Signed by Judge Analisa Torres on 2/3/2014) (tn) Modified on 2/3/2014 (tn). (Entered: 02/03/2014)
Set/Reset Hearings: Initial Conference set for 3/31/2014 at 04:00 PM before Judge Analisa Torres. (tn) (Entered: 02/03/2014)
15 CONSENT LETTER MOTION for Extension of Time to file Answer and joint letter addressed to Judge Analisa Torres from Jonathan M. Manes dated 02/07/2014. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Attachments: # 1 Text of Proposed Order)(Manes, Jonathan) (Entered: 02/07/2014)
16 ORDER granting 15 Letter Motion for Extension of Time: Not later than February 18, 2014, Plaintiffs shall file any Amended Complaint. Not later than March 3, 2014,

02/18/2014
02/18/2014 03/03/2014 03/11/2014 03/11/2014 03/11/2014 03/12/2014 03/12/2014 03/31/2014 04/14/2014 04/16/2014 04/18/2014 04/18/2014 05/07/2014

Defendants shall file their Answer to the Amended Complaint. Not later than March 10, 2014, the parties shall submit to the Court the joint letter and proposed Case Management Plan and Scheduling Order currently due on February 28, 2014. The initial pretrial conference, scheduled for March 31, 2014 at 4:00 p.m., will not be disturbed. Amended Pleadings due by 2/18/2014. (Signed by Judge Analisa Torres on 2/7/2014) (tn) (Entered: 02/10/2014)
17 FIRST AMENDED COMPLAINT amending 1 Complaint, against Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency.Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. Related document: 1 Complaint, filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(cd) (ca). (Entered: 02/19/2014)
***NOTE TO ATTORNEY TO E−MAIL PDF. Note to Attorney Alex Abdo for noncompliance with Section 14.3 of the S.D.N.Y. Electronic Case Filing Rules & Instructions. E−MAIL the PDF for Document 17 Amended Complaint, to: caseopenings@nysd.uscourts.gov. (cd) (Entered: 02/19/2014)
18 ANSWER to 17 Amended Complaint,. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency.(Barnea, Jean−David) (Entered: 03/03/2014)
19 FILING ERROR − WRONG PDF FILE ASSOCIATED WITH DOCKET ENTRY − INITIAL REPORT OF PARTIES BEFORE PRETRIAL CONFERENCE. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Manes, Jonathan) Modified on 3/18/2014 (lb). (Entered: 03/11/2014)
20 INITIAL REPORT OF PARTIES BEFORE PRETRIAL CONFERENCE. Corrected Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Manes, Jonathan) (Entered: 03/11/2014)
21 LETTER MOTION for Extension of Time to File Initial Report of Parties Before Pretrial Conference, nunc pro tunc addressed to Judge Analisa Torres from Jonathan M. Manes dated 03/11/2014. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Manes, Jonathan) (Entered: 03/11/2014)
22 NOTICE OF APPEARANCE by Patrick Christopher Toomey on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 03/12/2014)
23 ORDER granting 21 Letter Motion for Extension of Time to File: Plaintiffs' late filing is EXCUSED. (HEREBY ORDERED by Judge Analisa Torres)(Text Only Order) (Torres, Analisa) (Entered: 03/12/2014)
24 ORDER: The initial pre−trial conference scheduled for March 31, 2014 is ADJOURNED to April 16, 2014 at 4:30 p.m. (Signed by Judge Analisa Torres on March 31, 2014) (Torres, Analisa) (Entered: 03/31/2014)
25 LAW STUDENT INTERN APPEARANCE FORM. Consent of Judge. I authorize this student, Conor Clarke: (a) to appear in court or other proceedings on behalf of the above client, and (b) to prepare documents on behalf of the above client, and as further set forth. (Signed by Judge Analisa Torres on 4/14/2014) (rjm) (Entered: 04/15/2014)
Minute Order Proceedings held before Judge Analisa Torres: Initial Pretrial Conference held on 4/16/2014. (mo) (Entered: 04/17/2014)
26 LETTER MOTION for Conference addressed to Judge Analisa Torres from David A. Schulz dated 4/18/2014. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Schulz, David) (Entered: 04/18/2014)
27 ORDER granting 26 LETTER MOTION for Conference addressed to Judge Analisa Torres from David A. Schulz dated 4/18/2014. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. So ordered. (Signed by Judge Analisa Torres on 4/18/2014) (rjm) (Entered: 04/21/2014)
28 CONSENT LETTER MOTION for Extension of Time to File Joint Stipulation addressed to Judge Analisa Torres from Jonathan M. Manes dated 05/07/2014.

05/08/2014 05/09/2014
05/21/2014
06/23/2014
08/08/2014 08/11/2014 08/12/2014
09/03/2014 09/05/2014

Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Manes, Jonathan) (Entered: 05/07/2014)
29 ORDER granting 28 Letter Motion for Extension of Time to File Joint Stipulation. ENDORSEMENT: The parties' request to extend the deadline to submit a joint stipulation to May 9, 2014 is GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 5/8/2014) (kgo) (Entered: 05/08/2014)
30 STIPULATION AND ORDER REGARDING DOCUMENT SEARCHES. It is hereby STIPULATED and AGREED between the Parties as follows: The searches the Agencies agree to undertake that are described herein are deemed to fulfill in full the Agencies' search obligations under the respective Requests. OLC will continue to search for and process only those documents encompassed by the agreement it reached with Plaintiffs during the administrative processing of the relevant Request. NSA, CIA, DIA, FBI, and State will search for and process only the categories of documents as further specified herein, and as further set forth in this Stipulation and Order Regarding Document Searches. (Signed by Judge Analisa Torres on 5/9/2014) (rjm) (Entered: 05/12/2014)
31 ENDORSED LETTER addressed to Judge Analisa Torres from Jonathan M. Manes dated 5/21/2014 re: The parties hereby request that the Court endorse this letter to set deadlines by when the defendant agencies are to complete any required remaining searches for potentially responsive documents in connection with Plaintiffs' FOIA requests, as those requests have been modified or construed by so−ordered stipulation of the parties (Dkt. No. 30). The parties' agreed−upon deadlines are as further specified in this letter. ENDORSEMENT: So ordered. (Signed by Judge Analisa Torres on 5/21/2014) (rjm) (Entered: 05/22/2014)
32 ENDORSED LETTER addressed to Judge Analisa Torres from Jonathan M. Manes dated 6/20/2014 re: As directed by the Court's so−ordering of an April 18 joint letter of the parties (Dkt. No. 27), the parties hereby request that the Court endorse this letter to set deadlines by when the defendant agencies are to complete any required review and processing of potentially responsive documents in connection with Plaintiffs' FOIA requests, as those requests have been modified or construed by so−ordered stipulation of the parties (Dkt. No. 30). ENDORSEMENT: So ordered. (Signed by Judge Analisa Torres on 6/23/2014) (lmb) (Entered: 06/23/2014)
33 LETTER MOTION for Extension of Time to extend deadline for completion of CIA's search for records to August 27, 2014, and to extend to September 5, 2014 the last date for parties to propose modification of the CIA's processing completion date, addressed to Judge Analisa Torres from AUSA David S. Jones dated 08/08/2014. Document filed by Central Intelligence Agency.(Jones, David) (Entered: 08/08/2014)
34 LETTER addressed to Judge Analisa Torres from Patrick Toomey dated August 11, 2014 re: Opposition to CIA Motion for Extension of Search Deadline. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Toomey, Patrick) (Entered: 08/11/2014)
35 ORDER. Having reviewed the parties' letters dated August 8, 2014 and August 11, 2014, it is ORDERED that Defendant's request for an extension is GRANTED, and Plaintiffs' requests are DENIED. By August 27, 2014, the CIA shall complete its search for potentially responsive documents. By September 3, 2014, the parties shall submit any proposed modifications to the February 9, 2015 deadline for the CIA to complete its review and processing of responsive documents. Granting 33 Letter Motion for Extension of Time. (Signed by Judge Analisa Torres on 8/12/2014) (rjm) (Entered: 08/13/2014)
36 LETTER addressed to Judge Analisa Torres from AUSA Jean−David Barnea dated 9/3/14 re: CIA Production Schedule. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency.(Barnea, Jean−David) (Entered: 09/03/2014)
37 ORDER: Defendant's request is GRANTED. By February 27, 2015, the CIA shall complete its review and processing of all potentially responsive documents. SO ORDERED. (Signed by Judge Analisa Torres on 9/4/2014) (ajs) (Entered: 09/05/2014)

09/16/2014 09/16/2014 09/17/2014 10/09/2014 10/30/2014 10/30/2014
10/31/2014
11/14/2014 11/17/2014 11/24/2014 02/27/2015 03/02/2015 03/16/2015

38 NOTICE OF APPEARANCE by David Stuart Jones on behalf of Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Jones, David) (Entered: 09/16/2014)
39 LETTER MOTION for Extension of Time as to NSA's review and processing of potentially responsive records addressed to Judge Analisa Torres from David S. Jones dated September 16, 2014. Document filed by National Security Agency.(Jones, David) (Entered: 09/16/2014)
40 MEMO ENDORSED ORDER granting 39 Letter Motion for Extension of Time. ENDORSEMENT: Defendant's request is GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 9/17/2014) (ajs) (Entered: 09/17/2014)
41 NOTICE OF APPEARANCE by Ashley Marie Gorski on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation. (Gorski, Ashley) (Entered: 10/09/2014)
42 LETTER addressed to Judge Analisa Torres from Ashley Gorski dated October 30, 2014 re: Joint Stipulation and Proposed Order. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Attachments: # 1 Text of Proposed Order)(Gorski, Ashley) (Entered: 10/30/2014)
43 JOINT STIPULATION AND ORDER: Plaintiffs may file a Second Amended Complaint in the form attached hereto as Exhibit A. Within two weeks of the date of this Joint Stipulation, the parties will submit to the Court an agreed upon schedule for the search and processing of records responsive to the FOIA request submitted by Plaintiffs on July 29, 2014 to the National Security Division of the Department of Justice. In the event that that the parties cannot reach an agreement as to the search and processing schedule, they will each submit their respective proposed schedules to the Court for a decision. Defendants will file their Answer to the Second Amended Complaint no later than thirty days after it is filed. Nothing in this Stipulation shall affect existing orders of the Court setting certain deadlines for Defendants' search, review, and processing of potentially responsive documents. SO ORDERED. (Signed by Judge Analisa Torres on 10/30/2014) (ajs) (Entered: 10/31/2014)
44 SECOND AMENDED COMPLAINT amending 17 Amended Complaint, against Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency.Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. Related document: 17 Amended Complaint, filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Gorski, Ashley) (Entered: 10/31/2014)
45 LETTER addressed to Judge Analisa Torres from David S. Jones dated November 14, 2014 re: proposed schedule for processing documents responsive to plaintiffs' July 2014 FOIA request to the DOJ National Security Division. Document filed by Department of Justice.(Jones, David) (Entered: 11/14/2014)
46 MEMO ENDORSEMENT on re: 45 Letter, filed by Department of Justice. ENDORSEMENT: GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 11/17/2014) (ajs) (Entered: 11/17/2014)
47 ANSWER to 44 Amended Complaint,. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency.(Barnea, Jean−David) (Entered: 11/24/2014)
48 CONSENT LETTER MOTION for Extension of Time for CIA to complete production addressed to Judge Analisa Torres from AUSA Jean−David Barnea dated 2/27/15. Document filed by Central Intelligence Agency.(Barnea, Jean−David) (Entered: 02/27/2015)
49 ORDER granting 48 Letter Motion for Extension of Time. Defendant's request is GRANTED. By April 30, 2015, the CIA shall complete its review and processing of all potentially responsive documents. SO ORDERED. (Signed by Judge Analisa Torres on 3/2/2015) (ajs) (Entered: 03/02/2015)
50 STIPULATION AND ORDER REGARDING NSD DOCUMENT SEARCHES FOR PRODUCTION: 1. Date Limitations for Document Searches. a. With respect to the categories of documents described in Paragraphs 1−3 of the Second Request, NSD will

12/02/2015 12/08/2015 12/08/2015 12/09/2015
01/11/2016 01/12/2016

search for and process only documents that are currently in use or effect, or that were created or modified on or after September 11, 2001. b. With respect to the categories of documents described in Paragraph 4 of the Second Request, NSD will search for and process only documents that are currently in use or effect. c. With respect to the categories of documents described in Paragraph 5 of the Second Request, NSD will initially search for and process only documents created or modified on or after September 11, 2001; after the completion of NSD's production of these documents, the parties agree to continue their discussions regarding whether searches for documents created before September 11, 2001 will be undertaken, including whether conducting such searches would be unduly burdensome to NSD. 2. Document Production Deadlines. By May 1, 2015, NSD shall complete its processing of the Second Request and produce all documents, or portions thereof, it deems to be responsive and non−exempt. By March 13, 2015, NSD shall make an interim production that includes any documents for which it does not need to consult with other agencies. 3. Nothing in this Stipulation and Order, including the fact of its entry, should be taken as a concession by NSD that Plaintiffs have "substantially prevailed" in this action in whole or in part, as that term is used in 5 U.S.C. § 552(a)(4)(E). SO ORDERED. (Signed by Judge Analisa Torres on 3/16/2015) (ajs) (Entered: 03/16/2015)
51 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − LETTER MOTION for Leave to File Cross Motions for Partial Summary Judgment addressed to Judge Analisa Torres from Jonathan Manes dated 12/2/2015. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Manes, Jonathan) Modified on 12/8/2015 (ldi). (Entered: 12/02/2015)
***NOTICE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Notice to Attorney Jonathan Matthew Manes to RE−FILE Document 51 LETTER MOTION for Leave to File Cross Motions for Partial Summary Judgment addressed to Judge Analisa Torres from Jonathan Manes dated 12/2/2015. Use the event type Letter found under the event list Other Documents. (ldi) (Entered: 12/08/2015)
52 LETTER addressed to Judge Analisa Torres from Jonathan Manes dated 12/2/2015 re: Proposed Schedule for Cross Motions for Summary Judgment. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Manes, Jonathan) (Entered: 12/08/2015)
53 ORDER re: 52 LETTER addressed to Judge Analisa Torres from Jonathan Manes dated 12/2/2015 re: Proposed Schedule for Cross Motions for Summary Judgment. Having reviewed the parties' joint letter dated December 2, 2015, it is ORDERED that: 1. By January 15, 2016, the Defendants shall submit their motion for partial summary judgment; 2. By February 16, 2016, Plaintiffs shall submit their cross−motion for partial summary judgment and opposition to the Defendants' motion; 3. By March 18, 2016, the Defendants shall submit their opposition to Plaintiffs' cross−motion and reply in support of partial summary judgment; and 4. By April 8, 2016, Plaintiffs shall submit their reply in support of partial summary judgment. In addition, the parties' request to forego the exchange of Local Civil Rule 56.1 Statements is GRANTED. (Motions due by 1/15/2016. Cross Motions due by 2/16/2016. Responses due by 3/18/2016. Replies due by 4/8/2016.) (Signed by Judge Analisa Torres on 12/9/2015) (adc) (Entered: 12/10/2015)
54 CONSENT LETTER MOTION for Extension of Time to File Partial Summary Judgment Motion addressed to Judge Analisa Torres from AUSA Jean−David Barnea dated 1/11/16. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency.(Barnea, Jean−David) (Entered: 01/11/2016)
55 ORDER granting 54 Letter Motion for Extension of Time to Partial Summary Judgment Motion. Having reviewed the parties' joint letter dated January 11, 2016, it is ORDERED that: 1. By February 5, 2016, the Defendants shall submit their motion for partial summary judgment; 2. By March 8, 2016, Plaintiffs shall submit their cross−motion for partial summary judgment and opposition to the Defendants' motion; 3. By April 8, 2016, the Defendants shall submit their opposition to Plaintiffs' cross−motion and reply in support of partial summary judgment; and 4. By April 29, 2016, Plaintiffs shall submit their reply in support of partial summary judgment. (Signed by Judge Analisa Torres on 1/12/2016) (kko) (Entered: 01/12/2016)

01/12/2016 01/29/2016 02/02/2016 02/02/2016 02/26/2016 02/26/2016 02/26/2016 02/26/2016 02/26/2016 02/26/2016
02/26/2016
02/26/2016 02/26/2016

Set/Reset Deadlines: Motions due by 2/5/2016. Cross Motions due by 3/8/2016. Responses due by 4/8/2016. Replies due by 4/29/2016. (kko) (Entered: 01/12/2016)
56 CONSENT LETTER MOTION for Extension of Time on briefing for summary judgment addressed to Judge Analisa Torres from David S. Jones dated January 29, 2016. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency.(Jones, David) (Entered: 01/29/2016)
57 ORDER granting 56 Letter Motion for Extension of Time on briefing for summary judgment. GRANTED. The parties shall adhere to the schedule set forth above. SO ORDERED. (Motions due by 2/26/2016. Cross Motions due by 4/20/2016.) (Signed by Judge Analisa Torres on 2/2/2016) (kko) (Entered: 02/02/2016)
Set/Reset Deadlines: Responses due by 5/18/2016. Replies due by 6/8/2016. (kko) (Entered: 02/02/2016)
58 MOTION for Partial Summary Judgment . Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency.(Barnea, Jean−David) (Entered: 02/26/2016)
59 MEMORANDUM OF LAW in Support re: 58 MOTION for Partial Summary Judgment . . Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Attachments: # 1 Addendum: Document Index)(Barnea, Jean−David) (Entered: 02/26/2016)
60 DECLARATION of Antoinette B. Shiner (CIA) in Support re: 58 MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Attachments: # 1 Exhibit A − Vaughn, # 2 Exhibit B, # 3 Exhibit C)(Barnea, Jean−David) (Entered: 02/26/2016)
61 DECLARATION of Arthur R. Sepeta (DHS) in Support re: 58 MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Barnea, Jean−David) (Entered: 02/26/2016)
62 DECLARATION of Alesia Y. Williams (DIA) in Support re: 58 MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Attachments: # 1 Exhibits A−E, # 2 Exhibit F)(Barnea, Jean−David) (Entered: 02/26/2016)
63 DECLARATION of David M. Hardy (FBI) in Support re: 58 MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Barnea, Jean−David) (Entered: 02/26/2016)
64 DECLARATION of David J. Sherman (NSA) in Support re: 58 MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Attachments: # 1 Declaration (part 2), # 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)(Barnea, Jean−David) (Entered: 02/26/2016)
65 DECLARATION of John Bradford Wiegmann (NSD) in Support re: 58 MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Attachments: # 1 Exhibits)(Barnea, Jean−David) (Entered: 02/26/2016)
66 DECLARATION of Christina M. Butler (OIP) in Support re: 58 MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Barnea, Jean−David) (Entered: 02/26/2016)

02/26/2016 02/26/2016 04/20/2016 04/20/2016 04/20/2016
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67 DECLARATION of Paul P. Colborn (OLC) in Support re: 58 MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit E−1, # 7 Exhibit E−2 (part 1), # 8 Exhibit E−2 (part 2), # 9 Exhibit E−3, # 10 Exhibit F, # 11 Exhibit G)(Barnea, Jean−David) (Entered: 02/26/2016)
68 DECLARATION of John F. Hackett (State) in Support re: 58 MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Attachments: # 1 Exhibits)(Barnea, Jean−David) (Entered: 02/26/2016)
69 CROSS MOTION for Partial Summary Judgment . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Gorski, Ashley) (Entered: 04/20/2016)
70 MEMORANDUM OF LAW in Support re: 69 CROSS MOTION for Partial Summary Judgment . and in Opposition to Defendants' Motion for Partial Summary Judgment. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Gorski, Ashley) (Entered: 04/20/2016)
71 DECLARATION of Jonathan Manes in Support re: 69 CROSS MOTION for Partial Summary Judgment .. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D−Part 1, # 5 Exhibit D−Part 2, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O−Part 1, # 17 Exhibit O−Part 2, # 18 Exhibit P, # 19 Exhibit Q)(Gorski, Ashley) (Entered: 04/20/2016)
72 JOINT LETTER MOTION for Extension of Time to File Response/Reply as to 57 Order on Motion for Extension of Time, on cross−motions for summary judgment (ECF Nos. 59, 70), also to extend plaintiff's time to reply in support of their cross−motion addressed to Judge Analisa Torres from David S. Jones dated 05/11/2016. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency.(Jones, David) (Entered: 05/11/2016)
73 ORDER granting 72 Letter Motion for Extension of Time to File Response/Reply re 58 MOTION for Partial Summary Judgment, 69 CROSS MOTION for Partial Summary Judgment. GRANTED. Defendants shall file their opposition and reply by June 8, 2016. Plaintiffs shall file their reply by July 1, 2016. No further extensions shall be granted. SO ORDERED. (Replies due by 6/8/2016. Responses due by 6/8/2016. Replies due by 7/1/2016.) (Signed by Judge Analisa Torres on 5/11/2016) (kko) (Entered: 05/11/2016)
74 NOTICE of filing of classified document on 2/29/2016 re: 58 MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Jones, David) (Entered: 06/08/2016)
75 REPLY MEMORANDUM OF LAW in Support re: 58 MOTION for Partial Summary Judgment . and in Opposition to Plaintiffs' Cross−Motion. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Barnea, Jean−David) (Entered: 06/08/2016)
76 DECLARATION of Antoinette B. Shiner (CIA) in Support re: 58 MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Barnea, Jean−David) (Entered: 06/08/2016)
77 DECLARATION of Alesia Y. Williams (DIA) in Support re: 58 MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Barnea, Jean−David) (Entered: 06/08/2016)
78 DECLARATION of David M. Hardy (FBI) in Support re: 58 MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency.

06/08/2016 06/08/2016 06/08/2016 07/01/2016 08/17/2016 08/18/2016
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(Barnea, Jean−David) (Entered: 06/08/2016)
79 DECLARATION of David J. Sherman (NSA) in Support re: 58 MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Barnea, Jean−David) (Entered: 06/08/2016)
80 DECLARATION of John Bradford Wiegmann (NSD) in Support re: 58 MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Attachments: # 1 Exhibit Transmittal Letter)(Barnea, Jean−David) (Entered: 06/08/2016)
81 DECLARATION of Eric F. Stein (State) in Support re: 58 MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Barnea, Jean−David) (Entered: 06/08/2016)
82 REPLY MEMORANDUM OF LAW in Support re: 69 CROSS MOTION for Partial Summary Judgment . . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Gorski, Ashley) (Entered: 07/01/2016)
Magistrate Judge James C. Francis IV is so redesignated. (wb) (Entered: 08/17/2016)
83 ORDER. It is ORDERED that by September 30, 2016, State shall complete its review of the materials for responsiveness to Plaintiffs' requests, whereupon Defendants shall submit a letter informing the Court as to the number of responsive documents found and proposing a date by which Defendants will produce the responsive documents and a Vaughn index justifying any withholdings. By October 5, 2016, Plaintiffs shall respond to Defendants' letter. Decision on the parties' cross−motions for partial summary judgment is held in abeyance pending Defendants' review of these additional materials. The Clerk of Court is directed to terminate the motions at ECF Nos. 58 and 69. SO ORDERED. Terminating 58 Motion for Partial Summary Judgment; Terminating 69 Motion for Partial Summary Judgment. (Signed by Judge Analisa Torres on 8/18/2016) (rjm) (Entered: 08/19/2016)
84 MOTION for Hannah Corey Bloch−Wehba to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−12682205. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Certificate of Good Standing for District of Columbia Bar, # 3 Exhibit Certificate of Good Standing for State Bar of Texas)(Bloch−Wehba, Hannah) (Entered: 08/23/2016)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 84 MOTION for Hannah Corey Bloch−Wehba to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−12682205. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 08/23/2016)
85 ORDER granting 84 Motion for Hannah Corey Bloch−Wehba to Appear Pro Hac Vice (HEREBY ORDERED by Judge Analisa Torres)(Text Only Order) (Torres, Analisa) (Entered: 08/25/2016)
86 LETTER addressed to Judge Analisa Torres from David S. Jones dated September 26, 2016 re: outcome of supplemental review of additional files (submitted as directed by order dated August 18, 2016 (ECF No. 83)). Document filed by Department of State.(Jones, David) (Entered: 09/26/2016)
87 LETTER addressed to Judge Analisa Torres from Ashley Gorski dated September 29, 2016 re: outcome of supplemental review of additional files (submitted as directed by order dated August 18, 2016 (ECF No. 83)). Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Gorski, Ashley) (Entered: 09/29/2016)
88 LETTER addressed to Judge Analisa Torres from David S. Jones dated 09 30 2016 re: response and non−objection to plaintiffs' September 29 letter; request for simultaneous reinstatement of defendants' motion for partial summary judgment. Document filed by

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06/07/2017 06/08/2017 06/08/2017 06/14/2017

Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency.(Jones, David) (Entered: 09/30/2016)
NOTICE OF CASE REASSIGNMENT to Judge Kimba M. Wood. Judge Analisa Torres is no longer assigned to the case. (wb) (Entered: 11/22/2016)
89 JOINT LETTER addressed to Judge Kimba M. Wood from Ashley Gorski dated 12/19/2016 re: Status Update and Request to Reinstate Cross−Motions. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Gorski, Ashley) (Entered: 12/19/2016)
90 MEMO ENDORSEMENT on re: 89 Letter filed by American Civil Liberties Union, American Civil Liberties Union Foundation. ENDORSEMENT SO ORDERED. (Signed by Judge Kimba M. Wood on 12/21/2016) (cf) (Entered: 12/21/2016)
91 MOTION for Alex Abdo to Withdraw as Attorney . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Abdo, Alexander) (Entered: 01/03/2017)
92 ORDER granting 91 MOTION OF ALEX ABDO TO WITHDRAW AS COUNSEL. SO ORDERED. Attorney Alexander Abraham Abdo terminated. (Signed by Judge Kimba M. Wood on 1/04/2017) (ama) (Entered: 01/04/2017)
93 MEMORANDUM OPINION AND ORDER: The parties each move for partial summary judgment on the adequacy of certain agencies' searches and the applicability of certain FOIA exemptions to 150 responsive documents that were partially or fully withheld by Defendants. (As further set forth in this Order.) For the reasons stated above, Defendants' motion is GRANTED in part and DENIED in part, and Plaintiffs' motion is DENIED without prejudice. The parties are directed to confer and jointly submit a proposed briefing schedule on any further motions on or before April 26, 2017. The Clerk of Court is directed to terminate the motions at ECF Nos. 58 and 69. (Signed by Judge Kimba M. Wood on 3/27/2017) (cf) (Entered: 03/27/2017)
94 INTERNET CITATION NOTE: Material from decision with Internet citation re: 93 Memorandum & Opinion. (Attachments: # 1 Internet Citation, # 2 Internet Citation, # 3 Internet Citation, # 4 Internet Citation, # 5 Internet Citation, # 6 Internet Citation, # 7 Internet Citation, # 8 Internet Citation, # 9 Internet Citation) (vf) (Entered: 04/19/2017)
95 JOINT LETTER addressed to Judge Kimba M. Wood from AUSA Jean−David Barnea dated 4/25/17 re: Schedule for Supplemental Filings. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency.(Barnea, Jean−David) (Entered: 04/25/2017)
96 MEMO ENDORSEMENT on re: 95 Letter, filed by Department of Defense, Department of State, Department of Justice, Central Intelligence Agency, National Security Agency. ENDORSEMENT: SO ORDERED. (Cross Motions due by 7/10/2017. Motions due by 6/12/2017. Responses due by 7/10/2017. Replies due by 7/24/2017.) (Signed by Judge Kimba M. Wood on 4/25/2017) (ras) (Entered: 04/26/2017)
97 CONSENT LETTER MOTION for Extension of Time for submissions on motion for partial summary judgment addressed to Judge Kimba M. Wood from David S. Jones dated June 7, 2017. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency.(Jones, David) (Entered: 06/07/2017)
98 ORDER granting 97 Letter Motion for Extension of Time. GRANTED. The parties shall follow the schedule set forth above. (Cross Motions due by 7/14/2017. Motions due by 6/14/2017.) (Signed by Judge Kimba M. Wood on 6/8/2017) (ras) (Entered: 06/08/2017)
Set/Reset Deadlines: Responses due by 7/14/2017. Replies due by 7/28/2017. (ras) (Entered: 06/08/2017)
99 SECOND MOTION for Partial Summary Judgment . Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. Responses due by 7/14/2017(Jones, David) (Entered:

06/14/2017 06/14/2017 06/14/2017 06/14/2017 06/14/2017 07/07/2017 07/14/2017 07/14/2017 07/25/2017 07/25/2017 08/04/2017 08/04/2017 08/17/2017

06/14/2017)
100 MEMORANDUM OF LAW in Support re: 99 SECOND MOTION for Partial Summary Judgment . . Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Jones, David) (Entered: 06/14/2017)
101 DECLARATION of Antoinette B. Shiner (CIA) in Support re: 99 SECOND MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Jones, David) (Entered: 06/14/2017)
102 DECLARATION of David M. Hardy (FBI) in Support re: 99 SECOND MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Jones, David) (Entered: 06/14/2017)
103 DECLARATION of David J. Sherman (NSA) in Support re: 99 SECOND MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Jones, David) (Entered: 06/14/2017)
104 DECLARATION of Kevin G. Tiernan (NSD) in Support re: 99 SECOND MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Jones, David) (Entered: 06/14/2017)
105 DECLARATION of David M. Hardy (FBI) (Supplemental) in Support re: 99 SECOND MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Barnea, Jean−David) (Entered: 07/07/2017)
106 SECOND MOTION for Partial Summary Judgment . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. Responses due by 7/28/2017(Gorski, Ashley) (Entered: 07/14/2017)
107 MEMORANDUM OF LAW in Support re: 106 SECOND MOTION for Partial Summary Judgment . and in Opposition to Defendants' Second Motion for Partial Summary Judgment. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Gorski, Ashley) (Entered: 07/14/2017)
108 LETTER MOTION for Extension of Time to File Response/Reply as to 99 SECOND MOTION for Partial Summary Judgment . addressed to Judge Kimba M. Wood from AUSA Jean−David Barnea dated 7/25/17. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency.(Barnea, Jean−David) (Entered: 07/25/2017)
109 ORDER granting 108 Letter Motion for Extension of Time to File Response/Reply. GRANTED. Defendants' reply brief shall be filed no later than August 4, 2017. SO ORDERED. (Replies due by 8/4/2017.) (Signed by Judge Kimba M. Wood on 7/25/2017) (ras) (Entered: 07/25/2017)
110 REPLY MEMORANDUM OF LAW in Support re: 99 SECOND MOTION for Partial Summary Judgment . and in Opposition to Plaintiffs' Cross−Motion. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Barnea, Jean−David) (Entered: 08/04/2017)
111 REPLY AFFIRMATION of David J. Sherman (NSA) in Support re: 99 SECOND MOTION for Partial Summary Judgment .. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency. (Barnea, Jean−David) (Entered: 08/04/2017)
112 ORDER granting 99 Motion for Partial Summary Judgment; denying 106 Motion for Partial Summary Judgment. The parties now each move for partial summary judgment as to the remaining 46 documents that are contested. In accordance with the Order, the Government has conducted additional review and searches, and provided additional support for its motion. (As further set forth in this Order.) For the reasons stated above,

08/17/2017 08/22/2017
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08/12/2019 09/20/2019 09/24/2019

Defendants' motion is GRANTED and Plaintiffs' motion is DENIED. The Court believes that this order resolves all remaining issues. If the parties disagree, they shall file a letter on the docket within 30 days explaining any outstanding issues. The Clerk of Court is directed to terminate the motions at ECF Nos. 99 and 106 and to close the case. (Signed by Judge Kimba M. Wood on 8/17/2017) (cf) (Entered: 08/17/2017)
Transmission to Judgments and Orders Clerk. Transmitted re: 112 Order to the Judgments and Orders Clerk. (cf) (Entered: 08/17/2017)
113 CLERK'S JUDGMENT: It is, ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Order dated August 17, 2017, Defendants' motion is granted and Plaintiffs' motion is denied. The Court believes that the Order resolves all remaining issues. If the parties disagree, they shall file a letter on the docket within 30 days explaining any outstanding issues; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 8/22/2017) (Attachments: # 1 Right to Appeal, # 2 Right to Appeal)(km) (Entered: 08/22/2017)
114 NOTICE OF APPEAL from 113 Clerk's Judgment,,. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. Filing fee $ 505.00, receipt number 0208−14269822. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Gorski, Ashley) (Entered: 10/20/2017)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 114 Notice of Appeal,. (nd) (Entered: 10/20/2017)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 114 Notice of Appeal, filed by American Civil Liberties Union, American Civil Liberties Union Foundation were transmitted to the U.S. Court of Appeals. (nd) (Entered: 10/20/2017)
115 NOTICE OF CHANGE OF ADDRESS by David A. Schulz on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation. New Address: Ballard Spahr LLP, 1675 Broadway, 19th Floor, New York, NY, US 10019−5820, 212−850−6103. (Schulz, David) (Entered: 02/02/2018)
116 CONSENT LETTER MOTION to Reopen Case addressed to Judge Kimba M. Wood from Ashley Gorski dated 07/19/2019. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Gorski, Ashley) (Entered: 07/19/2019)
117 ORDER granting 116 Letter Motion to Reopen Case. The parties shall report to the court regarding fees on or before September 20, 2019. SO ORDERED. (Signed by Judge Kimba M. Wood on 7/24/2019) (ne) Modified on 7/24/2019 (ne). (Entered: 07/24/2019)
118 TRUE COPY OPINION of USCA as to 114 Notice of Appeal, filed by American Civil Liberties Union, American Civil Liberties Union Foundation USCA Case Number 17−3399. USCA Case Number 17−3399. For the foregoing reasons, the August 22, 2017 judgment of the District Court is AFFIRMED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 8/12/2019. (tp) (Entered: 08/12/2019)
119 MANDATE of USCA (Certified Copy) as to 114 Notice of Appeal, filed by American Civil Liberties Union, American Civil Liberties Union Foundation USCA Case Number 17−3399. IT IS HEREBY ORDERED, ADJUDGED and DECREED that the judgment of the District Court is AFFIRMED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 8/12/2019. (tp) (Entered: 08/12/2019)
Transmission of USCA Mandate/Order to the District Judge re: 118 USCA Order, 119 USCA Mandate. (tp) (Entered: 08/12/2019)
120 JOINT LETTER addressed to Judge Kimba M. Wood from AUSA Jean−David Barnea dated 9/20/19 re: Status of Discussions Re Attorney's Fees. Document filed by Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, National Security Agency.(Barnea, Jean−David) (Entered: 09/20/2019)
121 MEMO ENDORSEMENT on re: 120 Letter Status of Discussions Re Attorney's Fees, filed by Department of Defense, Department of State, Department of Justice, Central Intelligence Agency, National Security Agency. ENDORSEMENT: The parties shall

10/11/2019 10/16/2019

report to the Court regarding fees on or before October 11, 2019. So Ordered. (Signed by Judge Kimba M. Wood on 9/23/19) (yv) (Entered: 09/24/2019)
122 PROPOSED STIPULATION AND ORDER. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Gorski, Ashley) (Entered: 10/11/2019)
123 ORDER OF SETTLEMENT AND DISMISSAL... IT IS HEREBY STIPULATED AND AGREED, by and between the parties, as follows: Pursuant to 5 U.S.C. § 552(a)(4)(E), as soon as reasonably practicable after the Court has endorsed and docketed this Stipulation and Order, NSA and OLC shall each pay to Plaintiffs the sum of $8,250; and NSD, FBI, and CIA shall each pay to Plaintiffs the sum of $4,500, for a total settlement payment of $30,000 (collectively, the "Settlement Payments"). Defendants shall make their best effort to make payment to Plaintiffs within 90 days following the dismissal of this Action and will submit appropriate requests for payment within 14 days of the entry of the Stipulation and Order. Plaintiffs agree to accept the Settlement Payments in full satisfaction of any possible claim, demand or entitlement for attorney's fees and costs they have incurred or will incur in this action for services performed up to the date of this Stipulation and Order. Any subsequent claim for attorney's fees and costs in connection with this matter will be limited to a claim for fees and/or costs in connection with any future application to enforce the Stipulation and Order. This action is hereby dismissed with prejudice, provided that the Court shall retain jurisdiction over any issues that may arise relating to this Stipulation and Order. Effective upon payment of the Settlement Amounts set forth in Paragraph 1, Plaintiffs release the United States, its agencies, departments, officers, employees, servants, and agents, including the Agencies, from any claims for attorney's fees, costs, and expenses of any kind, and however denominated, relating to services performed in connection with this instant action, except as set forth in paragraph 3. Nothing in this Stipulation and Order shall constitute an admission by United States of America or its agencies, including the Agencies, that Plaintiffs or their counsel are eligible for or entitled to attorney's fees and costs under 5 U.S.C. § 552(a) (4)(E) in this action. SO ORDERED. (Signed by Judge Kimba M. Wood on 10/15/19) (yv) (Entered: 10/16/2019)

 
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TABLE OF CONTENTS
Page

(U) INTRODUCTION ·· · ································ · ························~·····~··· · ·· 1

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(U) SUMMARY ...·:..............~.................................._............................ 2

(U) SCOPE AND METHODOLOGY ......................_.....~..·~···..~····..····· 4

(U//FOUO) EO 12333 IMPLEMENTING PROCEDURES AND THE COMPLIANCE PROCESS AT THE CIA ........................................... 5

(U//FOUO) RETENTION AND DISSEMINATION OF U.S.

PERSON INFORMATION ~-.................~.............................................(b)(1)

OFC__ ·

·

·

-(U//FOUO) PARTICULAR CASES

. ·

(b) (3) N atSecA~t

_\ COLLECTION

OUTSIDE TH_E UNITED STATeS ...................-...;...........................( b)~ )

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(b)(3) NatSecAct

'(U//FQUO) CASES WITH COMPLIANCE ISSUES ........-...............______g

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(b )(1)

(U//FOUO)

CASES WITH

OTHER

ISSUES

....................................(b,)~(3)

NatSecAct
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(U//FOUO) CASES IN WHICH\

I. .
COLLECTION WAS

(b)( 1) (b)(3) NatSecAct

· CONSIDERED BUT NOT UNDERTAKEN ...................................... 14

. (b)(1)

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(U//f.OUO) MONITORING

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(b)(1)

. (U//FOUO) \ .

\coLLECTION INSIDE THE UNITED

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~===========

(U//FOUO) IMPEDIMENTS TO LEGITIMATE COLLECTION ........ 19

(b )(1)

.

(b )(3) NatSecAct

(U//FOUO) . LACK OF UNDERSTANDING OF THE EXECUTIVE ORDER AND .

PERCEPTION_ THATI

1s jCoLLECTJON CANNOT BE DoNE OR Too

DIFFICULT.•••.••.•;•••••••.•••••••••••••••.•••••••••.•••••••••••••••••.••.•••••••.•.•.•••••..•• 19

(U} TRAINING ····················.······························~ ················· .••••••• 20

(Ui/FOUO) SUBSTANTIVE AND PROCEDURAL LIMITATIONS............... 22 (U) TECHNOLOGY .........................·..................~········"''"""" ' "' ' """". 22

(b)(1) (b)(3) NatSecAct

(U) TARGETING STANDARDS....................................................... 23 (UHFOUOL __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~--~ (U) TIMELINESS, RENEWALS AND DURATION ...•...-......................... 24
(UHFOUO) APPLICATION OF FISA OVERSE~S ............................ 25

(U//FOUO) DIFFICULTY IN DETERMiNING U.S. PERSON STATUS ....... 26

(U//FOUO) COMPLIANCE PROCESS ............................................... 27 (U//FOUO) WHO IS RESPONSIBLE FOR COMPLIANCE? ................. 27 (U) INADEQUATE RECORDS ......~····............................................. 31 (U//FOUO) THE DEPARTMENT OF JUSTICE'S ROLE IN EO COMPLIANCE............................................................................... 32

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A. (U) CIA's Attorney General-Approved Implementing

Procedures

B. (U) Detailed Discussion of Retention and Dissemination

C. (U) Cases Without Com liance Issues

D. (U) Monitoring E. (U) Permitted A-c=-"""a',v_.a"Y"t-=--e=s-.~e---a=-.-e~..,.-od Special Collection in

the United States-FISA Requests, Assistance to Other

Agencies, Testing and Training !

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(b )(1) (b )(3) NatSecAct

(b)( 1) (b)(3) NatSecAct

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OFFICE OF INSPECTOR GENERAL INVESTIGATIONS STAFF

INTELLIGENCE ACTIVITY ASS.ESSME.NT

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(U//FOUO) COMPLIANCE WITH EXECUTIVE ORDER 12333: THE

USE OFI .

ICOLLECTIONI

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(2000-6207-IG)

I FROM 1995-200C(b)(1)
(b)(3) NatSecAct

7 ·August ~002

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(U) INTRODUCTION

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isJ .------'1-_.,_ This Assessment examines whethe~ CIA's use ot l

jcollecti~n

I ] has complied with Executive Order EO 12333 and the A enc 's (b)(1)

im lementin rocedures.

(b)(3) NatSecAct

f - - - - - - - - -- - - - - - - - - - . - - -- - - -- - (b)(1)
I ._e_x_a_m..i.,n--_e_s_h-o_w w_e-:1-:1- -le_g_a_l r-e-qu_i_re_m_e_n-ts- a-re-un_d_e-rs-to_o_d_, IThis Assessment (b)(3) NatSecAct

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1 l~ue considered but not implemented because of real or perceiv~b)( )

legal or bureaucratic issues, and h9w the compliance process is working ar(b)(3) Nat SecAct

whether it can be improved. It is intended to establish a baseline for future

assessments.

(b)(1)

t

· (b)(3) NatSecAct .

2. ~The' time period addressed iri this Assessment e~ded before the

11 September 2001 terrorist attacks in the United States (U.S.). The findings

and suggestions for management consideration contained in this Assessment

are based on EO 12333 and relevant law as it existed at the time the activities

reviewed were conducted. Any changes to rules governing intelligence collection

directed at international terrorist activities should.be taken into con!?ideration in

evaluating appropriate responses to thi"s Assessment.

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3. ~The Agency's use ofl

Icollection!

Ib~th within and

outside of the U.S., is g~nerally in compliance with EO ·12333. Although the

Agency conducts a significant number of e'lectronic surveillance and

unconsented physical sear~h operations overseas, these activities have been

directed rimaril at ind' ·

: persons. These techniques

In some of the cases involving L,....,-.::.~. "p"=e=rs=o:-n=::s;:-', trr.:-e='"ln=<f=o-r==m-=a::f;l-:o:-n=-t;;h:-:a~t--:w-:-:-:a:::-s:-::a::-:c:::=q-u:-:i-~re=-:d: was valuable, particularly with ·

(b) (1)

regard to terrorist activities.

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(b)(3) NatSecAct

4. ~ A.gency officers.are sensitive t~ the ru.les regarding targeting U.S.

persons and take the EO seriously. No evidence was found that any CIA officer

intentionally disregarded the requirements of EO 12333 or the Agency's

implementing procedu.res. Agericy officers understand that in order to conduct

I

bollection directed at U.S. persons, they must consult with legal

personnel and seek the necessary approvals. Office of General Counsel (OGC)

(b) ( 1)

attorneys provide.advice and assistance to Agency officers in interpreting the EO

(b)(3) NatSecAct and its ·implementing procedures. Agency -officers think highly of the guidance .

and support they receiv~ from these OGC attorneys.

5. ~ There has also been some inadvertent, and probably unavoidable,

collection against U.S. persons abroad. In these cases, the Agency directed technical conection at foreign targets and later discovered that some of th~m

were U.S. persons. Collection was usually terminated and there was no further

processing o.fthe information acquired.

(b)(3) NatSecAct

(b )(3) NatSecAct

. 6. ~ A few.

. cases were found to raise compliance and

other issues. The Agency did not always con$ult with the Department of Justice

(DoJ) early in the process or seek Attorney General (AG) approval in cases

where it would have been prudent to do so. In some of these cases, inform::~tion

of intelligence value obtained from!

pollection may not have been (b)(1)

A t

J disseminated in accordance with EO requirements. Failure to obtain req\P./l3 NatSec c

approvals or prudential review by DoJ before proceeding with!

~ollection

increases the risk that the activity may violate individual constitutional -rights, the

Foreign Intelligence Surveillance Act (FISA) , EO 12333, Agency regulations or

policies and that any evidence of criminal activity that may result from the

collection may later be determined to be inadmissible in court.

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. 11. ~ In the following discussion, this Assessment identifies thors:=e-- ----,
issues that pose the greatest potential for Agency mistakes in the use ot'--1- ----'
collection and suggests ways to limit this potential. These suggestions call for:

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(U) SCOPE AND METHODOLOGY

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12. (U) The Investigations Staff assembled a team of ten Office of

Inspector General (OIG) officers, including investigators, legal counsel, support

.personnel, and a se.n.ior DO consultant to conduct this Asses.sment.

13. (U/iFOUO) A thorough search of Agency records was initiated. A

formal request for all relevant documents was sent to all Agency com onents

. and each was asked to est

cal noint for this investiaa ·

(b )(3) CIAAct

(b)(1)
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1Focus groups of DO officers were asked for their views

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regarding compliance issues. In additio·n. the Assessment team traveled to a

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(b)( 1) (b)(3)

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15. (~) Although the Assessment team was u.nab.le to review every

regu lated activity, the team m_ade every reasonable effort to follow up on cases

_ th at were identif

-

· a e documentation or

interview leads.

(b)( 1 ) (b)( 3 )

(b)( 1) (b)(3) NatSecAct

16. ~ The team interviewed officials outside-the A ency, including re resentatives from
(b)(1) . (b)(3) r------~-~---,.,..-.--o--s,--e--,--,o--..-..l--c~la---.-s-,-------,-e-,-s,---c-,-~n..--e,-----,--,--,...-e----~p--r--,a-~c~,~ce~s----,o-~~e~, r~o~IC=e~ s NatSecAct
1n mon1tonng comp 1ance with EO 12333 technical collection requirements. The · tean: also met with the staffs of the Senate Select"Committee on Intelligence (SSCI) and House Permanent Select Committee on Intelligence (H PSCI) to obtain information relevant to the Assessment.
_(U//FOUO} EO 12333 IMPLEMENTING PROCEDURES AND THE COMPLIANCE PROCESS AT THE CIA
17. · ~ EO 12333, which was signed by President Reagan in 1981 ,
governs the conduct of intelli_gence activities by CIA and other agencies within .-!thL!:e!.Lllln~t"e'-.!l.llilai~tewnc~e~C~o.mL!L!.!~muwnliltlv.y__,_.--LI_ _~----~-~-----------l (b)( 1)
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18. ~ The FISA was passed.in·1978 and requires that the federal government obtain a FISA Court order before conducting electronic surveillance directed at a ents of a.forei n owe·r in the United States.
In 1994, the
FISA was amended to require a FISA warrant for unconsented physical searches directed at agents of a foreign power in the United States. The FISA contains criminal penalties covering intentional violations.

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3 1$}. The. IRP, comprising representatives from the National Security Council (NSC), CIA, FB I, .State.Department, DoJ and NSA, reviews and approves requests for standing and ad hoc FISA collection.
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. . 22. ~ U.S. persons are defined as Citizens, lawful permanent residents,4
corporations incorporated in the United States, and certain associations. A person or organization outside the United States may be presumed not to be a
U.S. erson, unless s ecific information to the contra is obtained. ._ _______ (b)( l ) (b)(3) NatSecAct

23. 1 24.

(b)( I ) (b)(3)
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4 (U) Lawf ul permanent resid~nts were formerly called -permanent resident aliens.

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(U//FOUO) RETENTION AND DISSEMINATION OF U.S. PERSON

INFORMATION
·

.. (b)(1)
(b)(3) NatSecAct

('8{ I . 25.

Information about a U.S. person derived from

'collection

must be processed in accordance with EO 12333 procedures. The rules

regarding retention and dissemination of information derived from such collection

are permissive, so long as there is intelligence value to the information. For

example, information that is foreign intelligence, counterintellig.ence, concerns a

person engaged in international terrorist or narcotics activities, or is about

potential sources or.contacts can be retained and disseminated along with the

(b)(1)

identity of the U.S. person so long as the identity is necessary to understand or

(b)(3) CIAAct assess the·information. (See E:xhipit A for retention and dissemination rules.)

(b )(3) NatSecAct This Assessment found that Agency components might not be applying these

rules properly because of a general and widespread lack of understanding of the

rul es. Moreover, based upon inteNiews of!

Iretention and

dissemination rules are not applied consistently. (See Exhibit B for detailed

comments on retention and dissemination.)

(b)( 1)

~----

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(b) (1) (b)(3) NatSecAct

(U//FOUO) PARTICULAR CASES OFI

\COLLECTION

OUTSIDE THE UNITED STATES

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· (U//FOUQ) CASES WITH COMPLIANCE ISSUES ·
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{U//FOUO) CASES IN WHICH / >=] COLLECTION WAS
CONSIDERED BUT NOT UNDERTAKEN · , .
42. ~ Headquarters and field station~ occasion~lly considered, but ·did
not undertake, electroniq suNeillance directed at U.S. persons abroad because of real or erceived le al and olic concerns.

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(U//FOUO) IMPEDIMENTS.TO LEGITIMATE COLLEC.TION

(U//FOUO) LACK OF UNDERSTANDING OF THE EXECUTIVE ORDER AND

PERCEPTION THA ~

!COLLECTION CANNOTBE DONE OR IS Too (b)( 1)

DIFFICULT .

(b)(3) NatSecAct

(b)(1)

.

(b)( 3 )

NatSecAct _60~ Most Agency officers know that there must be
direct C J collection at a U.S. person and that appropriate

agpopordovraelass~nneetod~~·~g~·

. Nat SecAct

·

be obtained. Most offic~rs interviewed, however, including managers in the fi~ru

and at Headquarters, do not understand the specific requfrements ofi

I

collection!

Iincluding the standards for targeting and when collection (b)(1)

directed at a U.S. person is justified. Many do not distinguish or understand the(b)(3) NatSecAct different legal standards that apply to technical and human collection. Moreover, .

few managers or other officers, whether in the field or at Headquarters, cou ld

state the appropriate procedures for retaining or disseminating U.S. person·

information that is obtained incidentally in the course of collection against forei£(b)( 1)

targets.

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61. 1

((bb))((13)) NatSe.cA. c.t 62. }~r~, A number of reasons. .meIud'mg .made. uate tra1.n1.-n , were c1'tec(b)(1)

me lack of understanding. A senion pfficer

(b)(3) NatSecAct

says that, with the influx of new case o 1cers, t ere may e

'-a---l;a--c.k--o.f,-e_x_p_er--i,-e_n_c_e_, in dealing with EO issues. While !

pfficers are often (b)(1)

better at identifying potential issues, many of them, including managers, were

also unfamiliar with the standards for targetin~ and dissemination. Officers in

I

jcollection operations generally

(b)(3) NatSecAct

seem· to be·more knowledgeable of EO 12333 issues.

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{U) TRAINING

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(UI/FOUO) SUBSTANTIVE AND PROCEDURAL LtMITATION~b)( 1)

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(U) TIMELINESS, RENEWALS AND DURATION
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{U!/FOUO) DIFFJCUL TY IN DETERMINING U.S. PERSON STATUS

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(U) INADEQUATE RECORDS

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(U//FOUO) THE DEPARTMENT OF JUSTICE'S ROLE IN EO COMPLIANCE

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EXHIBIT 8- DETAILED DISCUSSION OF RETENTION AND DISSEMINATION

· 1. 'tsL Rules: Information about a U.S. person

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or subject of a conversation that is acquired through electronic surveillance,

which is obtained in the course of targeting a U.S. person or a foreign target,

must be processed in accordance with EO 12333 procedures. Under these

procedures, U.S. person information may be retained or disseminated within the

Agency or to recipients outside the Agency "if the identity of the U.S. person and

all personally identifiable information are deleted." The identity of the. U.S.

person may also be retained and disseminated along with the information,

however, if the identity is necessary or reasonably believed to become

necessary, to understand or assess the information and the information

constitutes foreign intelligence or counterintelligence, is about a person engaged

in international terrorist or narcotics activities, pertains to potential sources or

contacts, or fafls within one of several other categories of information specified in the procedures. For these reasons,·the rules ·regard~_g retention and

disseminationC

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as there is intelligence value to the' information.

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minimization procedures approved by the Attorney General (AG). " If information

about a U.S. person does not qualify f9r retention .or dissemination, it must be

destroyed.

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3. · ~ ·Agency activities: Agency components may not be applying

these retention and dissemination rules properly. This assessment fou nd tha1(b) (1)

there is a widespread lack of understanding of the rules. Based on interviews(b)(3) CIAAct

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rules are not being applied consistently.

· 4. ~Few officers, whether in the field or at Headquarters, could

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INevertheless, consulting with management or '-:1e- g- a--:l--o-f=f-=i:c-e- r_s_re- m-a;in--s.t.,.h,._e_p_r..m-t_a_ry_jmethod for determining the appropriate ·

retention rules.

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(U//FOUO) ASSISTANCE TO OTHER AGENCIE~ IN THE UNITED_STATES

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8. ~ Rules: Under EO 12333, CIA may provide specialized equipment

and technical knowledge to another US. Gove rn ment aqency conducting lawful

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(U//FOUO) TESTING AND TRAINING IN THE UNITED STATES

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