U.S. Department of Justice United States Attorney Southern District of New York 86 Chambers Street New York, New York 10007 December 12, 2014 By Electronic Mail David E. McCraw, Esq. Jeremy A. Kutner, Esq. The New York Times Company 620 Eighth Avenue New York, NY 10018 E-mail: mccrad@nytimes.com jeremy.kutner@nytimes.com Re: The New York Times Co. v. U.S. Department of Justice, 14 Civ. 3948 (VSB) Dear David and Jeremy: This Office represents the United States Department of Justice (“DOJ”), the defendant in the above-referenced matter. In accordance with the schedule set forth in the parties’ joint submission on October 9, 2014, see Dkt. No. 11, as modified by the Court’s December 8, 2014, order, see Dkt. No. 13, DOJ is releasing the enclosed documents in partial response to the Freedom of Information Act (“FOIA”) request that is the subject of this litigation. These documents are responsive to categories 3 through 6 of the request. Information has been redacted from these documents pursuant to 5 U.S.C. §§ 552(b)(1), (b)(3), (b)(6), (b)(7)(A), (b)(7)(C), and (b)(7)(E). Each redacted document being released has been marked with the applicable FOIA exemption or exemptions. These documents also are being made available to the public on the Director of National Intelligence’s website, “IC on the Record,” at http://icontherecord.tumblr.com/, as well as at www.dni.gov. If you have any questions, please do not hesitate to contact us. Sincerely, PREET BHARARA United States Attorney for the Southern District of New York By: /s/ Andrew E. Krause JOHN D. CLOPPER EMILY E. DAUGHTRY ANDREW E. KRAUSE Assistant United States Attorneys Telephone: (212) 637-2716/2777/2769 Facsimile: (212) 637-0033 E-mail: john.clopper@usdoj.gov emily.daughtry@usdoj.gov andrew.krause@usdoj.gov Enclosures 2 All withheld information exempt under 13(1) and b(3) except where otherwise noted. APPROVED FOR PUBLIC RELEASE UMTEI) STATES ~s FOREIGN INTELLIGENCE SURVEELANCE m: m; . mm; . a Docket Number: . EXHIBET A Derived ?orn Appiication of the United States :0 the Foreign Inteiligence Surveillance Court in the above?aptioned. . matter; 'Declassify only upon the defem?nation of the President. All withheld information exempt under b(1) and except where otherwise noted. APPROVED FOR PUBLIC RELEASE INTRODUCTION As the attacks of September 11th, 2001, vividly demonstrated, the United States is not immune from terrorist attack on our own soil. Although the United States has not su??ered another such attack in the ?ve years since that day, the threat has in many ways increased. - Indeed, the Intelligence Community assesses that these .feteign power -pese the greatest terrorist threats to the United States. ,_seek to use our own communications infrastructure and laws against us, as they secrete agents into the I United States, waiting to attack at atime oftheir choosing. Correspondingly, one of the greatest challenges the United States confronts in the ongoing effort to prevent a subseqeent catastrophic terrorist attack against the homeland is the critical neerl to followup quickly on new leads. Time is ofthe essence in preventing terrorist attacks against our Nation. In addition, we face - signi?cant obstacles in ?nding and tracking members and agents of international terrorist organizations,_ as they manipulate modern technology in an attempt to communicate-while remaining uadetected. Members and agents of international terrorist organizations do not wear uniforms, but instead attempt to blend into om civilian society. Speed and flexibility are essential in tracking individuals who? 0 follow All withheld information exempt under b(1) and b(3) except where otherwise noted. APPROVED FOR PUBLIC RELEASE the trails effectively, and to respond to new leads, it is vital for the S. Intelligence Community to be able quickly and ef?ciently to acquire communications to or from individuals reasonably believed to be members or agents of thesloreign powers. The attached Application is intended to address these problems by establishing an early warning under the Foreign Intelligence Surveillance Plot of 1978 50 ESE. . 1801-18-52; to alert the US. Government to the presence of niembers and agents of these foreign powers and to aid io tracking such individuals within the United States. Speci?cally, the Government seeks authorization from this Court to conduct electronic surveillance to collect the substantive contents of certain telephonic and electronic communications. foreign powers: Electronic surveillance would lac-conducted only at facilities for which there is probable cause to believe that the facilities are beingosed, or are about to be used, by those- foreign powers.1 The Application is ?rlly consistent with title I and follows in the footsteps of this Court?s ground breaking and innovative decision i Opinion and Order, No. rem .{July The Application establishes that there is probable cause to believe that the targets of the shrveillenc are foreignpowers under FISA. In addition, the Application demonstrates that there is probable cause to believe the.- The National Security Agency has reviewed this of law for acmzracy. All withheld information exempt under b(1) and b(3) except where otherwise noted. FOR PUBLIC RELEASE about to be used by each of the targets. Moreover, because of the minimization procedures that will be care?illy applied at the acquisition stage, collection will be targeted at only communications to or from certain telephone numbers and e-mail addresses,2 those for which there is probable cause to believe: (1) that one of the communioants is a member or agent of one of the targeted foreign powers: and (2) that the communication is to or ?om a foreign colintry.?1 The Government would apply several additional mechanisms to ensure appropriate oversight over the collection of comur?cations. For example, if the telephone number or email address selected for collection is reasonably believed to be used by a person in the United States, six speci?c procedures would be followed. (At this time, for operational reasons, it is not anticipated that the NSA will task for collection any email addresses reasonably believed to be used by a person in the United States.) a First, only three senior National Security Agency of?cials would be authorized by the Director of the NSA to approve tasking the number or address for collectionmthe Signals Intelligence Directorate Program Manager for Special Counterterrorism Projects, the Counterterrorism Global Capabilities Manager, and the Countertetrotism Primary Production Center Manager. 3 In addition to collecting communications to or from an e-mail address associated with the targets, the Govenanent would collect communications speci?cally referring to that partiwlar e-mail address in the body of the 3.0 1 a. message. 170: example, there is eet?taml - - u'lln .n u: a For ease of discussion, an}r reference in this memorandum to communications ?to or from? an email address for which there is probable cause to believe that the address is used by a member or agent of one of the targets includes communications referring to that e-mail address. 4 For ease of reference, this standard will be referred to as the ?minimization probable cause standard.? All withheld information exempt under b(1) and b(3) except where otherwise noted. . APPROVED FOR PUBLIC RELEASE - Second, all such audiorizations would be documented in writing and supported by a written justi?cation explaining why the selected telephone numbers or e?mail addresses meet the minimization probable cause standard. . Third, the another or e?mail address may not be tasked for collection without the prior approval of the Attorney General, the Assistant Attorney General for the National Security Division or the Deputy Assistant Attorney General in the National Security Division with responsibility for FISA operations and oversight (DAAG). A no such tel hone number or c-mall address ma. be re arded as. as ci ted - Fed with solely on the basis of activities that are protected by the First Amendment to theCoostitution. a Fifth, tasking such phone numbers and email addresses for collection must be explicitly approved by this Court. 0 The Government would report to the a week on any new numbers or addresses that are reasonably believed to be used by persons in the United States. Included within each report will be a description of the basis for the detennination by the NBA and the Attoroey General, the MGM SD, or the DAAG that i?t? a. was probable cause to - .u - member or sient lfthe Court does not approve any of the new telephone numbers or e-mail addresses within forty-eight hours of receiving the report because the Court does not agree that there is probable cause to believe that the number or addr is _associated with a member 1. hi the Government would have Monty-four hours to submit additional information. Ifthc Com does not, within Meaty-four hours of receiving additional information from the Government, ?nd that there is probable cause to believe that any of the new tele hone number or or ?1 ad 5 i member or a out i the tasking of that number or address must cease and any acquired- communications must be segregated and may be retained only upon Court approval iftbe Government demonstrates a foreign intelligence need for such retention. Finally, the NSA would institute a system that ensures that telephone numbers and e- mail addresses of persons reasonany believed to be in the United States would be reviewed every 90 days to determine whether the collection of communications to or ?'om the number or address should continue. All withheld information exempt under M1) and b(3) except where otherwise noted. APPROVED FOR PUBLIC RELEASE See Declaration ofLieut. Gen. Keith B. Alexander, US. Army, Director, National Security Agency 1] 68 (Dec. 12, 2006) (Exhibit to the Application) Deciaration?). Telephone-numbers and e-mail addresses .not reasonably believed to be used by a persozt in the United States would be tasked only after an NSA analyst has documented in writing his determination that the number or address meets the tt?nimizatioa probable cause standard and an of?cial in the NS A?s?Branch has veri?ed that the analyst?s determination has beer; properly documented. Id 1} 67. In additiona anattomey from the National Secuzity Division at the Department of Justice wouid review the justi?cations for targeting these numbers and-addresses. Every thirty days, the Government - would submit a report to the Court listing new numbers and addresses that are not reasonabiy beiieved to be used by persons in the United States and that the NSA has tasked during the previous thirty days and brie?y summarizing the basis for determination that there was probable cause to believe that each number and address is used by a member or agent of- may request additional infomeation on particular numbers or addresses and, if the Court finds that the minimization probable cease standard has not been met, the Court may direct that collectioa shall cease within forty?eight hours on that number or address. The Court may also direct that any communications acquired using those patticular numbers or addresses must- be segregated and may be retained only upon Court approval if the Government demonstrates a foreign intelligence need for such retention. Finally, as we explain below, taldng into account the nature of the national security threat posed by the targeted groups and the totality of the circumstances surrounding the proposed All withheld information exempt under 13(1) and b(3) except where otherwise noted. APPROVED FOR PUBLIC RELEASE surveillance, the surveillance detailed in the Application is reasonable nodes the Fourth Amendment. 5 On September_11, 2001, the al Qaede terrorist network launched a set of coordinated attacks along the Best Coast of the United States. foot commercial jettiners, each carefully selected to be lolly lo aded with ?xed for a transcootioental ?ight, were hijacked al Qaeda operatives. Two of the jetli?ers were targeted at the Nation?s ?nancial center in New York and were deliberately ?own into the Twin Towers of the World Trade Center. The third was targeted - at the headquarters of the Nation?s Anned Forces, the Pentagon. The fourth was apparently headed toward Washington, DC, when passengers struggled with the hijackers and the plane crashed in Shanksville, The intended target of this foorthjetliner woe evidently I the White House or the Cdpitol, strongly suggesting that its intended mission was to strike a direct blow at the leadership of the. of the United States. The attacks of September 11th resulted in approximately 3,900 highest single-day death tell from hostile foreign attacks in the Nation?s history. These attacks shut down air travel in the United States, disrupted the Nation?s ?nancial ntarkets and government operations, and caused billions of dollars in damage to the economy. 5 By ?lling this application the United States does not in any say suggest that the President lacks constimtional or statutory authority to conduct the electronic moillance detailed herein without Court authorization. . All withheld information exempt under b(1) and b(3) except where otherwise noted. . . APPROVED FOR PUBLIC RELEASE All withheld information exempt under and b(3) except where otherwise noied. APPROVED FOR PUBLIC RELEASE All withheld information exempt under b(1) and b(3) except where otherwise noted. APPROVED FOR PUBLIC RELEASE All withheld information exempt under 13(1) and 13(3) except where otherwise noted. APPROVED FOR PUBLIC RELEASE As this Court is aware, Coort~eutho?zed electroz?osurveillance of agents 0- individual applications under title I each time the Government has probable cause to believe that a particular telephone number or email ?address is being-used or is about to be used by membere or agents of .argets, the court would determine that there is probable cause to believe that each of the targets quali?es under FISA as a foreign power that there is probable cause to believe is using or is aboot to use the specified facilities. The (iovemment would then have the authority pursuant to PISA to direct Surveillance at these facilities but would eare?illy apply stringent minimization procedures to target for collection communications - -only when there is probable cause to believe: (1) that one of the comanlcants is a -argeted foreign powers, and (2) that the communiCation is to or from a foreign country. The Govemment would inform this Good twice a week of any member or agent 0 telephone numbers and email addresses that are reasonably believed to be used-by a person in the United States, and the collection of communications to or from such numbers and addresses All withheld information exempt under b(1) and b(3) except where otherwise noted. APPROVED FOR PUBLIC RELEASE could not continue without the explicit approval of this Court. Moreover, such numbers and addresses could'not be. tasked without the prior approval of the Attorney General, the Assistant Attorney General for the National Security Division, or the Deputy Assistant Attorney General in' the Natiooal Security Division with responsibility for FISA operations and oversight. For telephone numbers and e-mail addresses that are not reasonably believed to be used by a person in the United States, the Government would submit a report to the Court every thirty days discussing the basis for their selection. At any time, the Court could direct that collection of communications to arid from one or more of those now-US. numbers or addresses shall cease within forty-eight hours. I I. is Critical to the Government?s. Efforts to As compared to ?ling -odividual applications under PISA, the approach detailed in the Applioation, which also complies with and follows the procedures 0mm would greatly enhance the speed and ?exibility with which the Goverliment could use PISA to follow up on new leads to ?nd enemy operatives and allow the Government to obtain actionable intelligence information that otherwise would be lost. For example, if? See NCTC Declaration 1] 152. Similarly, if the Government obtains information suggesting there is probable cause to believe that a particular All withheld information exempt under 13(1) and b(3) except where otherwise noted. APPROVED FOR PUBLIC RELEASE telephone number or e-mail address is being used lay?time is ofthe essences?by the time Court 0; Attorney General authorization to direct surveillance against the particular account is obtained, the account may no ionget be in use. See NSA. Declaration 1E 23; see also NCTC Declaration '86 (noting that ??eraploy a range of evasive techniques aimed at making their telephone conuntinioations more di?ieolt to intercept and understand? when using telephones to communicate). Granting the Application would enable the Government to direct electronic surveillance - with a much higher degree of speed and?agility than would be possible through the ?ling of individual PISA applications. The authority sought in the Application would thereby prevent the loss of signi?cant actionable intelligence by increasing the speed and flexibility with which the Government could use FISA to follow up on new leads to ?nd operatives of the - foreign powers. In additioa granting the. Application would make it possible to collect communications to and horn a substantial number of telephone numbers or e?mail addresses being used by such operatives who otherwise would not be surveilled ?due to resource constraints. The approach detailed in the Application squareiy ?ts within the paxameters of PISA because there is probable cause to believe-hem that the targets are foreign powers and that each of the targets is using, or is abotit to use?telephonic and electronic communications. Finally; minimization procedures would be scrupulously appiied to tatget collection at communications that originate or terminate a foreign country and that are to or from individuals reasonably believed to be operatives of - targeted foreign powers. I Moreover, it was this Court?s?ground breaking decisionin-hat laid the nec essary foundation for the attached Application. The innovative legal approach adepted in that All withheld information exempt under b(1) and b(3) except where othenrvise noted. I APPROVED FOR PUBLIC RELEASE opinion recognized the signi?cant changes in the way individuals communicate and in the technology that transmits those communications, caused in large part by the adyance of the Intemet. See, fat ?at 34-3 5; 40?42. Keeping in step moth those technological changes, the Court authofized the collection under FISA of the meta data associated with an unpreCedented number of electrode communication. Id. at 39. Like the surveillance approved in I die attached Applicationdescribes a novel approach to the challenges created by But the surveillance detailed in the Application involves targetiog for collection a much narrower set of communicationsme those for which there is probable cause to believe: (I) that one of the communicants is a member or agent of one of the targeted foreign powers and (2) that the communication ls to or ?om a foreign country. D2. The Application Fully Complies with All Statutory Requirements Section 104 requires that each application for an order approving electronic surveillance under FISA mclude: (1) the identity of the Federal of?cer making the application; (2) the authority conferred on the Attorney General by the President, and the approval of the Attorney General, to make the application; . (3) the identity,? if known, or a description of?the target of the electronic surveillance; (4) a statement of the facts and circumstances relied upoo by the applicant to justify his belief thee-(A) the target of the electronic surveillance is a foreign power or an agent of a foreign poem; and (B) each of the facilities or places at whichthe electronic surveillance is being directed is being used, or is about to be used, by a foreign poorer or an agent of a foreign power; (5) a statement of the proposed minimization procedures; All withheld information exempt under DH) and b(3) except where otherwise noted. APPROVED FOR PUBLIC RELEASE (6) a detailed description of the centre of the information sought and the type of - communications or activities to be subjected to the surveillance; (7) a certi?cation by a high?level national security o?icial or o?icials that the information sought is foreign intelligence information; that a signi?cant purpose of the surveillance is to obtain foreign intelligence information; that such information cannot reasonably be obtained by normal investigative techniques; that designates the infomation being sought according to the categoties set forth in section 10105:) and that includes a statement of the basis for the certification that the information sought is the type of foreign intelligence infoonation so designated, and that such infomation may not be reasonably obtained by nonnal investigative techniques; (8) a statement of the means by which the Surveillance will be effected and a statement whether physical cow is required to e??ect the surveillanCe; (9) a statement of the facts concerning all previous applications that have beep made under title 1 to the FISA court involving any of the persons, facilities, or places SpeCi?ed in the application, and the action taken on each previous application; (10) a statement of the period of time for which the electrooic surveillance is required to be maintainedacd if the native of the intelligence gathering is such that the approval of the use of electronic surveillance under FISA should not automatically terminate when I the described information has ?rst been obtained, a description of facts supporting the belief that additional information ofthe same type will be obtained thereafter; and (11) Whenever more than one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what_ minimization procedures apply to infomation acquired by each device. See 50 U.S.C. 1804(a). In addition to approving the ?ling of the application, the Attorney General must also'find that the application itself meets the requirements of FISA. [ii The attached Application meets these statutory requirements. For the most part, the Application contains material that is either substantially similar to informtion contained in previous applications approved by this Court the nature of the information sought, details or that is technical in nature (1a, the means by which the surveillance will be effected, the coverage of the surveillance devices involved). We need not discuss in All withheld information exempt under b(1) and b(3) except where othenNise noted. APPROVED FOR PUBLIC RELEASE detail each tequired element. of application under title I of PISA. Rather, this memorandum will focus on the three aspects of the Application that merit substantial targets of the surveillance, the facilities at which the electronic surveillance woold be directed, and the minimization procedures. A. Ike Targets Sectiori 104 requires an application for authorization to conduct electronic smeillance under title I of PISA to specify the identity, if known, of the target of the proposed electronic s??eillence, 50 U.S.C. 1804(a)(3), and to include a statement of ?the facts and circumstances relied upon by the applicant to his belief that . . . the target of the electronic surveillance is a foreign power or an agent of a foreign power,? id. 1804(a)(4). Similarly, section-105 requires the CQurt?s order approving the electronic suxveillance to Specify the identity, if known, of the target of electronic Weillance. Ia! Prior to issuing the order, the Court must ?nd that there is probable cause to believe that the target is a foreign power or an agent of a foreign power. Id. With respect to a US. person, the probable cause determination may not be predicated solely on activities protected by the First Amendmeot. 1d. PISA expressl?r permits the Court, in determining whether probable cause exists, to consider ?past activities ofthe target, as well as facts and circumstances relating to current or future activities of the target.? Id. 18050:). In this case, the United States knows the identity of the targets of the electronic surveillance. As indicated in the Application, The NCTC Declaration epeci?cally descrioes the known terrorist orgaoizations that? All withheld information exempt under and b(3) excepiwhere otherwise noted. APPROVED FOR PUBLIC RELEASE -and demonstrates that there is probable cause to believe that, considered together,- Under PISA, the phrase ?foreign power? includes ?a group engaged in intemational terron'sm or activitiesin preparation therefor.? 50 U.S.C. 1801(a)(4). PISA de?nes as ?international terrorism? activities that meet three requirements, to. activities that involve violent acts or acts dangerous to human life that are aviolation of the criminal laws of the United States or of any State, or that weldd be a criminal violation if committed within the jurisdiction of the United States or any State; (2) appear to be intendedw?A) to intimidate or coexcc a civilian population; (B) to in?uence the policy of a government by intimidation or coercion; or (C) to affect the conduct of a government by assassination or kidnapping; and (3) occur totally outside the United States, or transcend national boundaries in teens of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum. . Id. 1801(o). With respect to the ?rst requirement, legislative history explains that ?the violent acts covered by the de?nition meao. both violence to persons and grave or serious I violence to property.? HR. Goof. Rep. No.? 954720, at 21 (1973). Examples of ectivities that would meet the second requirement include ?the detonation of bombs in a metropolitan area, the kidnapping of a high~ranl