Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 1 of 37 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK THE NEW YORK TIMES COMPANY and CHARLIE SAVAGE, Plaintiffs, (AT) ?against? UNITED STATES DEPARTMENT OF JUSTICE, Defendant. MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT David E. McCraw, Esq. Jeremy A. Kutner, Esq. The New York Times Company Legal Department 620 Eighth Avenue New York, NY 10018 Phone: (212) 556?4031 Facsimile: (212) 556?1009 Email: ITICC raw twti rnes.co:n Attorneys for Plaintiffs 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 2 of 37 TABLE OF CONTENTS TABLE OF CONTENTS .. i TABLE OF AUTHORITIES .. ii STATEMENT OF FACTS ..2 A. Background on Government Surveillance Programs ..3 B. Congress Requires OIG Reports on Various Surveillance Programs ..8 C. The FOIA Requests ..9 ARGUMENT ..1 I. PARTIAL DENIAL OF THE FOIA REQUESTS IS SUBJECT TO DE II. DOJ HAS FAILED TO MEET ITS BURDEN TO JUSTIFY ITS REDACTIONS UNDER ANY EXEMPTION TO FOIA .. 13 A. Documents Re?ecting Agency Mistakes, Possible Wrongdoing, and Sources of Embarrassment .. 14 B. Redactions to Factual Matters that Have Been Explicitly Officially Acknowledged and Publicly Disclosed by the Government ..20 C. Information About Publicly Filed Criminal Court Cases ..24 D. Information Relating Entirely to Legal Analysis or Known Historical and Statistical Information ..25 E. Descriptions of the Narrative of the Legal Dispute Between OLC Attorneys and White House Officials Concerning Flaws in the Legal Justifications for Stellarwind ..29 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 3 of 37 TABLE OF AUTHORITIES CASES Am. Civil Liberties Union v. Clapper, 785 F.3d 787 (2d Cir. 2015) 18 Am. Civil Liberties Union v. Dep?t ofJiistice, 681 F.3d 61 (2d Cir. 2012) Am. Civil Liberties Union v. FBI, N0. 11 Civ. 7562, 2014 US. Dist. LEXIS 141933 (S.D.N.Y. Oct. 6,2014) ..28 Am. Civil Liberties Union v. Office of the Dir. of Nat?l Intelligence, No. 10 Civ. 4419 (RJS), 2011 US. Dist. LEXIS 132503 (S.D.N.Y. Nov. 25, 2011) ..27 Associated Press v. US. Dep?t of Def, 554 F.3d 274 (2d Cir. 2009) .. 13 Bloomberg L.P. v. Bd. of Governors of the Fed. Reserve Sys., 601 F.3d 143 (2d Cir. 2010)..12, 13 Brady v. Maryland, 373 US. 83 (1963) ..25 Bryant v. Ma?iici, 923 D.2d 979 (2d Cir. Carney v. Dep?t ofJastice, 19 F.3d 807 (2d Cir. 1994) .. 12, 13 Conti v. US. Dep?t ofHomeland Sec., N0. 12 Civ. 5827 (AT), 2014 US. Dist. LEXIS 42544 (S.D.N.Y. Mar. 24, 2014) .20 Dep?t ofthe Air Force v. Rose, 425 US. 352 (1976) Doherty v. US. Dep?t ofJastice, 775 F.2d 49 (2d Cir. 1985) ..19 Dow Jones Co. v. US. Dep?t ofJastice, 880 F. Supp. 145 (S.D.N.Y. 1995) Gardels v. CIA, 689 F.2d 1100 (DC. Cir. 1982) ..26 Halpern v. FBI, 181 F.3d 279 (2d Cir. 1999) ..12, 27 Kuzma v. Internal Revenue Serv., 775 F.3d 66 (2d Cir. 1985) ..20 [Name Redacted], 2011 US. Dist. LEXIS 157706 (FISA Ct. Oct. 3, 2011) (?Bates Opinion?) ..21 N. Y. Times Co. v. US. Dep?t ofJastice, 756 F.3d 100 (2d Cir. 2014) ..13Times Co. v. US. Dep?t ofJastice, 872 F. Supp. 2d 309 (S.D.N.Y. 2012) ..13 Sassman v. US. Marshals Serv., 494 F.3d 1106 (DC. Cir. 2007) ..28 ii 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 4 of 37 U.S. Dep?t ofState v. Ray, 502 U.S. 164 (1991) ..13 Wilkinson v. FBI, 633 F. Supp. 336 (CD. Cal. 1986) ..20 Wilner v. Nat?l Sec. Agency, 592 F.3d 60 (2d Cir. 2009) 14, 27 Wilson v. CIA, 586 F.3d 171 (2d Cir. 2009) ..23 Wood v. FBI, 432 F.3d 78 (2d Cir. 2005) 13 STATUTES AND REGULATIONS 5 U.S.C. 18 U.S.C. 956 ..23 50 U.S.C. 1861 ..2 50 U.S.C. 3024 ..18, 28 Exec. Order No. 13526, 75 Fed. Reg. 707 (2009) ..17, 26, 27 Fed. R. Civ. P. USA FREEDOM Act, Pub. L. No. 114?23, 129 Stat. 268 OTHER AUTHORITIES Legal Briefs Br. Reporters Comm. for Freedom of the Press as Amicas Curiae Supporting Appellees, NY. Times Co. v. Den?: of Justice, 756 F.3d 100 (2d Cir. 2014) (No. 13-422) ..11 Legislative Documents Espionage Act and the Legal and Issues Raised by Wikileaks: Hearing: Before the H. Comm. on the Judiciary, 111th Cong. 2 (2010), available at 1 1 1th/1 1 .. 11 Newspaper and Book Articles 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 5 of 37 Amanda Terkel, John Kerry: ?There?s a Massive Amount of Overclassification,? Huffington Post (Sept. 4, 2015, 10:00 AM), available at .. 1 1 Charlie Savage et al., US. Confirms that It Gathers Online Data Overseas, NY. Times, June 6, 2013, available at . .21 Eric James Risen, Defense Lawvers in Terror Cases Plan Challenges Over Efforts, NY. Times, Dec. 28, 2005, available at over?spy?efforts.html ..5 Eric James Risen, Eavesdropping Effort Began Soon After Sent. Attacks, NY. Times, Dec. 18, 2005, available at 12/ 18/politics/eavesdropping? effort?began?soon-after?sept?1 1?attacks.html .5 Eric James Risen, Spy Agency Mined Vast Data Trove, Officials Report, .Y. Times, Dec. 24, 2005, available at . .5 James Risen Eric Bush Lets U.S. Spy on Callers Without Courts, NY. Times, Dec. 16, 2005 available at James Risen Eric Spying Program Snarerl U.S. Calls, NY. Times, Dec. 21, 2005, available at .5 John Podesta, Need to Know: Governing in Secret, i_n The War on Our Freedoms: Civil Liberties in an Age of Terrorism 220, 227 (Richard C. Leone Greg Anrig Jr. eds, 2003) ..28 Leslie Cauley, NSA Has Massive Database of Americans' Phone Calls, USA Today, May 11, 2006, available at ..5 Reports Information Oversight Office, National Archives and Records Administration, Report to the President (2014) ..1 1 Office of the Inspector General, Department of Justice, A Review of the Federal Bureau of Investigation?s Activities Under Section 702 of the Foreign Intelligence Surveillance Act Amendments Act of 2008 (?702 Report?), Sept. 2012 ..7, 16, 20, 22, 23 Office of the Inspector General, Department of Justice, A Review of the Federal Bureau of Investigation?s Use of Exigent Letters and Other Informal Requests for Telephone Records Exigent Letters Review?), January 2010 ..8, 16 iv 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 6 of 37 Office of the Inspector General, Department of Justice, A Review of the Federal Bureau of Investigation?s Use of National Security Letters NSL Review March 2007 Office of the Inspector General, Department of Justice, A Review of the Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006 NSL Review March 2008 ..26 Office of the Inspector General, Department of Justice, A Review of the Federal Bureau of Investigation?s Use of Section 215 Orders for Business Records Section 215 Review March 2007 ..15 Office of the Inspector General, Department of Justice, A Review of the Use of Section 215 Orders for Business Records in 2006 Section 215 Review March 2008 ..15 Office of the Inspectors General of the Department of Defense, Department of Ustice, Central Intelligence Agency, and Office of the Director of National Intelligence, Report on the President?s Surveillance Program, Volume I (?Joint IG Report, Vol. July 10, 2009 .. ..3, 15,24, 25, 29 Office of the Inspectors General of the Department of Defense, Department of Justice, Central Intelligence Agency, and Of?ce of the Director of National Intelligence, Report on the President?s Surveillance Program, Volume II (?Joint IG Report, Vol. July 10, 2009 ..24, 25, 29, 30 Office of the Inspectors General of the Department of Defense, Department of Justice, Central Intelligence Agency, and Office of the Director of National Intelligence, Report on the President?s Surveillance Program, Volume 111 (?Joint IG Report, Vol. July 10, 2009 .. ..15, 18,24, 29, 30 Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act Report?), July 2, 20 14 ..7, 21 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 7 of 37 Plaintiffs The New York Times Company and Charlie Savage (?The Times?) respectfully submit this memorandum of law in support of their motion for summary judgment. PRELIMINARY STATEMENT In the aftermath of the September 11, 2001 terrorist attacks, the US. Government embarked on an unprecedented effort to collect, monitor, and analyze personal communications and records that officials believed would help avert future acts of terrorism, often without a warrant or any judicial approval. The scope of the Government?s collection is vast, but many details about the nature and effectiveness of these surveillance programs emerged only after being exposed by investigative reporting and leaked internal documents, events that prompted official disclosures and declassification and, at the same time, a campaign by the administration to justify the value of those same programs. To better understand these programs, The Times filed two requests under the Freedom of Information Act 5 U.S.C. 552, seeking some of the only known documents that have evaluated their history and application: seven classi?ed final reports from the Office of the Inspector General of the Department of Justice These various OIG reports concerned a litany of intelligence initiatives that together resulted in the collection of data about millions of people worldwide: the post-September ll warrantless wiretapping and bulk data collection program code-named ?Stellarwind?; the post-Stellarwind warrantless wiretapping program authorized by Section 702 (?Section 702?) of the Foreign Intelligence Surveillance Act Amendments Act of 2008 50 U.S.C. 1881(a); the post?Stellarwind bulk email and phone metadata collection programs pursued under pen register/trap and trace provision and business records provision as modified by Section 215 of the USA Patriot Act (?Section 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 8 of 37 215?), 50 U.S.C. 1861; and the Federal Bureau of Investigation?s use of ?National Security Letters? and ?Exigent Letters,? which permitted collection of certain communications and financial records without court supervision. As a result of the two requests and this litigation, the Government has declassified hundreds of pages from the seven reports, giving the public an unprecedented glimpse of the surveillance programs as well as accounts of troubling incidents when the law may have been skirted. But large portions of the reports still remain redacted, and The Times believes that certain critical sections are being withheld improperly. In particular, The Times challenges by this motion redactions that appear to obscure from public view details about programs or events that have already been officially acknowledged and publicly revealed, that inappropriately shield the agencies from embarrassment for programmatic mistakes and misconduct, or that keep secret material that poses no rational risk to national security. By agreement of the parties, The Times is filing the opening brief in this action, but it remains the Government?s burden to show that the challenged redactions are justified under statutory exemptions.1 On the record as it stands, the challenged redactions cannot be sustained. STATEMENT OF FACTS At issue in this litigation is a series of reports written between 2007 and 2012 by the inspector general of the Department of Justice as well as one joint report involving 1 The Government has variously cited in support of secrecy Exemption 1 (related to documents properly classified in the interest of national defense or foreign policy), Exemption 3 (related to documents specifically exempted from disclosure by statute), Exemption 4 (related to privileged or confidential trade secrets and commercial or financial information), Exemption 5 (related to inter- or intra-agency documents), Exemption 6 (related to personnel files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy), and Exemption 7 (related to records or information compiled for law enforcement purposes). 2 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 9 of 37 inspectors general at five other agencies. The reports, which were largely secret for many years, offer a detailed history as well as close legal scrutiny of the massive surveillance and data collection programs that the Government put into place after September 11. Understanding the public import of these reports as well as the reason why The Times is seeking additional disclosure of key sections of the reports begins with an understanding of the surveillance programs themselves. A. Background on Government Surveillance Programs Less than a month after September 11, 2001 terrorist attacks, President George W. Bush issued a top-secret authorization directing that the National Security Agency use electronic surveillance within the United States for counterterrorism purposes without following procedures imposed by FISA. Office of the Inspectors General of the Department of Defense, Department of Justice, Central Intelligence Agency, and Office of the Director of National Intelligence, Report on the President?s Surveillance Program, Volume I (?Joint IG Report, Vol. July 10, 2009, at 1; Decl. of David E. McCraw (?McCraw Decl.?) Ex. G, at 1; The authorization, and the variants that followed, permitted the NSA to conduct this surveillance without a court order and also required periodic authorization renewal, which the president provided at least 43 times until the end of 2006. at 1, 7; E-6, E-8. The program is known under several different names, most prominently ?Stellarwind? and the ?President?s Surveillance Program I_d. at 1; The authorizations permitted the NSA to 2 All references to are to the Excerpts Containing Plaintiffs? Challenged Redactions and Cited Portions of Redacted Material Referenced in Plaintiffs? Memorandum of Law in Support of Their Motion for Summary Judgment, ?led pursuant to this Court?s order of Sept. 25, 2015 (Docket No. 28). 3 The program is also occasionally referred to as the ?Terrorist Surveillance Program? and the ?Warrantiess Wiretapping Program.? However, ?Terrorist Surveillance Program? is also 3 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 10 of 37 implement the three major components of Stellarwind without needing to obtain a court warrant: interception of the content of international telephone and Internet communications from both US. and non?US. persons linked to terrorism, bulk collection of certain metadata4 from phone communications, and bulk collection of certain metadata from Internet and email communications. at 50?60; to Other agencies, including the Federal Bureau of Investigation the Central Intelligence Agency and the National Counterterrorism Center became involved in the Stellarwind program in various capacities. at 28?32; E-l4 to E-18. Initially, Stellarwind data-gathering and collection did not involve approval from the Foreign Intelligence Surveillance Court although the presiding judge on that court was made aware of the program. Li at 33; E-19. As a result, lawyers within the executive branch set the legal parameters for the program. In 2004, following bureaucratic turnover at DOJ, the legality of the program became a ?ash point of dispute within the Government one of the important topics of the OIG reports at issue in this case. The dispute pitted attorneys for DOJ, including its acting attorney general and members of its Office of Legal Counsel against high-ranking members of the presidential administration, including Vice President Richard Cheney, White House Chief of Staff Andrew Card, and White House Counsel (and later Attorney General) Alberto Gonzalez. Li. at 40?50; E-21 to Several aspects of Stellarwind?s legality were at issue, including whether the authorizations covered the specific activities carried out by NSA, whether the authorizations were justified by a notably sweeping frequently used to describe only one portion of the Stellarwind program, relating to the bulk collection of telephony metadata. 4 Metadata refers to information about particular communications (such as the time sent, and the addresses of recipient and sender), as opposed to the content of the communications themselves. 4 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 11 of 37 interpretation of the president?s inherent Article 11 power as commander?in?chief, and whether the component of Stellarwind that harvested bulk email metadata presented special concerns. The con?ict famously included a dramatic hospital confrontation between and White House officials at the bedside of the incapacitated Attorney General John Ashcroft. at 40?44; E-2l to After the president reauthorized the program without DOJ certification, top officials threatened to resign, prompting the president to agree to modifications. at 48?50; to 1. Subsequently, DOJ sought and obtained orders from FISC authorizing the bulk email metadata collection component of Stellarwind, although it stopped seeking renewals of this authority for this component in 2011, after it came to light that the program was not abiding by limits imposed by the court. The existence of the vast Stellarwind program remained completely unknown to the general public until December 2005, when The Times revealed major aspects of it particularly related to the component of the program that involved the collection of the content of international communications without a warrant in a series of Pulitzer Prize?winning articles. James Risen Eric Bush Lets U.S. Spy on Callers Without Courts, NY. Times, Dec. 16, 2005, available at 12/ McCraw Decl. Ex. Q.5 In May 2006, USA Today reported on details of the component of Stellarwind covering the bulk collection of phone metadata. Leslie Cauley, NSA Has Massive Database of Americans? Phone Calls, USA Today, May 11, 2006, available at 5 See also Eric James Risen, Eavesdronnina [it'l?ort Began Soon After Sept. 1 Attacks, NY. Times, Dec. 18, 2005, available at 12/ sept-l 1?attacks.html; James Risen Eric Snvine Program Snared US. Calls, .Y. Times, Dec. 21, 2005, availabie at Eric James Risen, Sov Aaeticv Mined Vast Data 'I?rove, Of?cials Report, NY. Times, Dec. 24, 2005, available at Eric James Risen, Defense Lawyers in Terror Cases Plan Challenges Over Spy Efforts, NY. Times, Dec. 28, 2005, available at efforts.html. 5 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 12 of 37 McCraw Decl. Ex. R. President Bush confirmed and declassified the existence of the warrantless content collection component of Stellarwind revealed by The Times, and DOJ released a white paper explaining some of the legal justifications for that program. McCraw Decl. Ex. G, at 54; E-35. Other components of the program were not declassified. But driven in large part by the negative public reaction to Stellarwind?s reliance on warrantless surveillance, and by the reaction of telecommunications companies that were concerned with being seen as providing user data without a formal order, the Government sought to obtain authority for the remaining two components of Stellarwind. To obtain FISC authorization for the bulk collection of phone metadata component, the Government relied on business records provision, which had been dramatically expanded by Section 215 of the USA. Patriot Act. at 54?56; to The Government obtained this permission in 2006, which allowed the NSA collect and store broad swaths of data, essentially the metadata from every call made through major US phone companies, and to later query that database to seek information about the target and the target?s contacts. Li. at 56; In 2009, however, FISC was notified that the NSA was systemically violating its orders related to Section 215, although it permitted the program to continue. Li. at 57; E-38. In 2013, the extent of the bulk phone metadata program was revealed through leaks, and was subsequently acknowledged and declassified by the Government. That program was later modified in 2015 by the USA FREEDOM Act. USA FREEDOM Act, Pub. L. No. 114?23, 129 Stat. 268 (2015). The Government also sought FISC approval of the component of Stellarwind related to the collection of the content of international email and phone communications. McCraw Decl. Ex. G, at 57; Approval for the collection of such information initially came from a FISC 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 13 of 37 judge in 2007. Id. at 58; Collection occurred in two ways: the targeted collection of phone calls using traditional wiretapping technology, and ?upstream? collection of Internet communication across network switches, which involved a very different and unique type of technology that could collect content in more expansive ways. This initial approval was subsequently challenged by other FISC judges, prompting the Bush administration to seek statutory authorization, first by the Protect America Act of 2007, Pub. L. No. 110?55, 121 Stat. 552, and subsequently by Section 702 of the FISA Amendments Act. Office of the Inspector General, Department of Justice, A Review of the Federal Bureau of Investigation?s Activities Under Section 702 of the Foreign Intelligence Surveillance Act Amendments Act of 2008, Sept. 2012 (the ?702 Report?); McCraw Decl. Ex. L, DOJ-016-00978 to E-43 to E- 51. Statutory authorization allowed the expansion of the collection of Internet content through what is known as the PRISM program. Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (the Report?), July 2, 2014; McCraw Decl. Ex. P, at 7; PRISM involved the collection and storage of email and other Internet communications to and from foreign targets from Internet companies (like Google), rather than from network switches. Li. Meanwhile, during the Bush administration, the FBI was making use of two other notable tools that also permitted the Government to obtain metadata about Americans? communications without court approval or supervision as part of national security investigations: National Security Letters and Exigent Letters. NSLs allow the FBI to obtain certain customer records from financial institutions and Internet service providers without a warrant. Office of the Inspector General, Department of Justice, A Review of the Federal Bureau of Investigation?s Use of National Security Letters NSL Review March 2007; McCraw 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 14 of 37 Decl. Ex. M, to E-53 to E-62. Exigent Letters similarly allowed agents to compel the production of customer records, but without the formal procedures required before sending a NSL. Office of the Inspector General, Department of Justice, A Review of the Federal Bureau of Investigation?s Use of Exigent Letters and Other Informal Requests for Telephone Records Exigent Letters Review?), January 2010; McCraw DeclThe Inspector General uncovered numerous problems with how the FBI was using NSLs and exigent letters, and the bureau eventually ceased using exigent letters entirely. B. Congress Requires OIG Reports on Various Surveillance Programs As Congress acted to authorize and expand aspects of the surveillance activities undertaken by various intelligence agencies, it also required OIG to monitor the activities and issue oversight reports. It did so through, first, the USA Patriot Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, 120 Stat. 192 (2006), which directed OIG to audit the effectiveness of the use of Section 215, NSLS, and Exigent Letters, and, second, the FISA Amendments Act, which directed OIG to review both the Stellarwind program and the use of Section 702. Beginning in 2008, OIG worked in conjunction with the Inspectors General of other agencies to do a review of Stellarwind. McCraw Decl. Ex. G, at 9?1 1; E-10 to E-12. The agencies participating in that review included the Department of Defense CIA, NSA, and the Office of the Director of National Intelligence In July 2009, the Inspectors General issued their joint report on Stellarwind (the ?Jointh Report?), which was submitted to certain congressional committees. The Inspectors General produced both a classified report, as well as a brief and limited unclassified version. 8 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 15 of 37 OIG also completed reviews of the use of NSLS and Exigent Letters, as well as the bureau?s use of Section 215. Another OIG review focused on the use of Section 702 information. At the conclusion of each review, OIG issued a report (collectively, the Surveillance Reports?). Each such report withheld large sections from public view. In 2013, the contours of the debate over surveillance forever changed when Edward Snowden released a trove of classified material to journalists, including documents exposing details of the very surveillance practices that were the subject of the Joint IG Report and the OIG Surveillance Reports. In response to the Snowden disclosures and subsequent debate, the Government officially acknowledged certain previously secret programs and declassified details about their operations. Nonetheless, the classi?ed versions of the Joint IG Report and the OIG Surveillance Reports remained secret. C. The FOIA Requests This action arises from two FOIA requests filed by The Times seeking the release of parts or all of the classified versions of the reports. The first request, filed with DOJ on January 31, 2014, sought the full classified Joint 1G Report (the ?Joint IG Request?). McCraw Decl. Ex. A. That request was denied on February 10, 2014 on the grounds that the report was properly classified. McCraw Decl. Ex. B. The Times filed an administrative appeal on February 24, 2014, McCraw Decl. Ex. C, but DOJ failed to decide it within the 20 business days set by FOIA, 5 U.S.C. McCraw Decl. at 5. Under the law, that failure constituted administrative exhaustion and The Times was permitted to file suit in this Court. 5 U.S.C. The second request, filed on February 18, 2014, sought complete copies of all OIG Surveillance Reports since September 11, 2001 (the Surveillance Request?). Specifically, 9 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 16 of 37 the request sought ?all DOJ 1G reports issued since Sept. 11, 2001, pertaining to surveillance and data collection? and listed some of the partially declassified reports for which The Times was seeking release of the full texts.6 McCraw Decl. Ex. D. On February 21, 2014, DOJ denied the request, saying that the OIG Surveillance Reports were properly classified. McCraw Decl. Ex. E. An administrative appeal by The Times was filed on February 24, 2014. McCraw Decl. Ex. F. That appeal was not decided in the 20 business days set by FOLA, and The Times was therefore deemed to have exhausted its administrative remedies. 5 U.S.C. McCraw Decl. 7. The Times commenced this action on May 28, 2014. A short time later, counsel for the Government informed The Times that DOJ was willing to review the classified reports and make substantial disclosures in light of the volume of information about the surveillance programs that had become public. McCraw Decl. (II 9. The parties then negotiated a rolling production schedule with four production dates beginning in late October 2014 and extending into February 2015. McCraw Decl. 10. The Court so ordered that schedule on August 28, 2014. Because of the quantity of records involved, the Government ultimately extended the final production date to April 24, 2015 with the consent of The Times and the Court. After reviewing the produced versions of the reports, The Times notified the Government in early May that it believed there were 26 places in the documents where information had been improperly redacted or withheld. McCraw Decl. 11. The parties subsequently agreed on a 6 These materials were listed in the request: the report on FISA Amendments Act 702, announced on Sept. 25, 2012; the January 2010 report on the use of exigent letters and other informal requests for phone records; the March 2008 report on the use of Section 215 Orders for Business Records in 2006; the March 2008 report on the use of NSLs (corrective actions); the March 2007 report on the use of Section 215 Orders for Business Records; and the March 2007 report on the use of NSLs. 10 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 17 of 37 briefing schedule for competing summary judgment motions, which was later extended to allow for declassification of some additional information by the Government in the Joint IG Report. 7 The final briefing schedule was so ordered by the Court on September 11, 2015. ARGUMENT We should begin by saying a word about how the briefing in this action will unfold. When the Government redacts documents in response to a FOIA request, the requester is rarely in a position to know with any certainty whether the redaction is valid or whether the Government is shielding information that should be public. The Government?s penchant for overclassi?cation is well known, and the disclosures of the last two years make plain that it is democratic self?governance that has suffered as a result.8 Only the courts have the ability and the authority to check the executive?s power to classify and to assure that the appropriate balance 7 Recognizing that counsel for the Government, before filing its brief, would need time to confer in some detail with their clients about classification decisions related to the challenges raised by The Times, The Times agreed to submit the first brief in this action as a means of expediting the hriefin schedule. 8 According to the Information Security Oversight Office, more than 80 million documents were classified in FY2013, and over 95 million in FY2012, compared to around 6 million in 1996. Information Oversight Office, National Archives and Records Administration, Report to the President (2014), available at In the words of one congressman: are at a moment in our history where there is an overwhelming classification of material. . . . And the process itself is arcane, and there is no accountability.? Espionage Act and the Legal and Constitutional Issues Raised bv Wikileaks: Hearing Before the H. Comm. on the Judiciary, 111th Cong. 2 (2010) at 4, available at gov/_files/hearings/printers/ 1 1th/1 1 Experts estimate that anywhere between 50 percent and 90 percent of documents are misclassified. Id. at 84 (prepared statement of Thomas S. Blanton, Director, Nat?l Security Archive, George Washington University). Secretary of State John Kerry echoed these concerns in a recent interview, stating, a massive amount of overclassification. . . . People just stamp it on quickly because it?s a way to sort of be correct if anybody had a judgment that somehow they had been wrong about whether it should be classified or not. So the easy thing is to classify it and put it away.? Amanda Terkel, John Kerrv: ?There?s a Massive Amount of Overclassification.' Huffington Post (Sept. 4, 2015, 10:00 AM), available at lbaf247; See also Br. Reporters Comm. for Freedom of the Press as Amicus Curiae Supporting Appellees, NY. Times Co. v. Dep't of Justice, 756 F.3d 100 (2d Cir. 2014) (No. 13?422). 11 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 18 of 37 between secrecy and transparency is struck for the public good. At the same time, we also understand that in a document production of this scope running to some 2,000 pages with hundreds of redactions the Court cannot be expected to adjudicate every withholding. With that in mind, we have limited this motion to the redactions in only 26 places in the reports, and we have then grouped those redactions into five focused subject areas. We believe that the information targeted by this motion represents critical areas necessary for greater public understanding of the surveillance programs and that the withholding of the information is at odds with the dictates of FOIA. However, the Government bears the burden of proving that the withholding is legally justi?ed, so only after the Government files its responsive brief will The Times be able to address substantively many of the issues before the Court on this motion. But we have attempted in this brief to give focus to the dispute now before the Court by identifying the essential issues that the Government will need to address in its papers. I. PARTIAL DENIAL OF THE FOIA REQESTS IS SUBJECT TO DE NOVO REVIEW FOIA requires that courts review de novo agency decisions to withhold information from the public. 5 U.S.C. As a result, the agency?s decision is given no deference by the court. Bloomberg. LP. v. Bd. of Governors of the Fed. Reserve 601 F.3d 143, 147 (2d Cir. 2010). Although courts review reasonably detailed agency affidavits with a presumption of good faith, this primarily is for determining the need for further fact-finding. See, Wood v. E, 432 F.3d 78, 84?85 (2d Cir. 2005); Carney v. Dep?t of Justice, 19 F.3d 807, 812?13 (2d Cir. 1994); see also WilliC?l? v. Nul?] See. Agency, 592 F.3d 60, 69, 73 (2d Cir. 2009) (presumption does not replace de novo review by courts); Halgern v. FBI, 181 F.3d 279, 287?88 (2d Cir. 1999); c_f. Bloemberg, 601 F.3d at 151 test that permits an agency to deny disclosure because the 12 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 19 of 37 agency thinks it best to do so (or convinces a court to think so, by logic or deference) would undermine ?the basic policy that disclosure, not secrecy, is the dominant objective of (quoting Dep?t of the Air Force v. Rose, 425 US. 352, 361 (1976)). ?The ?basic purpose [of re?ected a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.?? Bloomhero, 601 F.3d at 147 (quoting Rose, 425 US. at 360?61). In light of this purpose, exemptions are to be construed narrowly, ?resolving all doubts in favor of disclosure? Associated Press V. U.S. Dep?t of Deb, 554 F.3d 274, 283 (2d Cir. 2009) (quoting Wood, 432 F.3d at 82?83); see also Bluomberg, 601 F.3d at 147. There is a ??strong presumption in favor of disclosure [that] places 5? the burden on the agency to justify the withholding of any requested documents. Associated Press, 554 F.3d at 283 (quoting U.S. Dep't of State v. Ray, 502 US. 164, 173 (1991)). FOIA litigation is typically resolved on summary judgment. M, Car?, 19 F.3d at 812. In a FOIA case, as in other litigation, summary judgment is properly granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Bryant v. Mal?fuci, 923 F.2d 979, 982 (2d Cir. 1991).9 II. DOJ HAS FAILED TO MEET ITS BURDEN T0 JUSTIFY ITS REDACTIONS UNDER ANY EXEMPTION TO FOIA FOIA places the burden for justifying any withholdings squarely on the agency, and must be held to that burden. gag NY. Times Co. v. US. Dep?t of Justice, 756 F.3d 100, 112 (2d Cir. 2014) (?The agency asserting the exemption bears the burden of proof, and all doubts as to 9 The Times has not submitted a Local Rule 56.1 statement in accord with the practice in FOIA cases in this District. $32 NY. Times Co, v. US. Dep?t of Justice, 872 F. Supp. 2d 309, 314 (S.D.N.Y. 2012) general rule in this Circuit is that in FOIA actions . . . Local Civil Rule 56.1 statements are not required?). 13 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 20 of 37 the applicability of the exemption must be resolved in favor of disclosure?) (quoting m, 592 F.3d at 69). It has not met, and cannot meet, that burden in regard to the redactions being challenged by this motion. To facilitate adjudication, The Times has grouped the redactions into five categories that present similar legal considerations: (A) Redactions that are inappropriate because they seek to obscure information that addresses activities that are either illegal or capable only of causing agency embarrassment; (B) Redactions of facts that have been officially acknowledged and publicly disclosed by the government; (C) Redactions of information about publicly filed, but unnamed, criminal court cases; (D) Redactions of information that has been improperly classified because it does not disclose covert facts and instead is legal analysis, known historical and statistical information, or information that discloses no classified information; and (E) Redactions to the well?known narrative of the legal dispute between OLC attorneys and White House of?cials over the legal justi?cation for the Stellarwind program. A. Documents Re?ecting Agency Mistakes. Possible Wrongdoing, and Sources of Embarrassment The Times ?rst challenges the unexplained withholdings of portions of the various OIG reports that appear to solely re?ect descriptions and analysis of instances of potential or actual wrongdoing on the part of intelligence agencies. It appears that with many if not all of these redactions FOIA is being used improperly to prevent embarrassing agency details from being aired publicly. Those redacted segments include: - Descriptions of Notices of Compliance incidents filed by Office of Intelligence Policy and Review concerning ?unauthorized collection" that had taken place pursuant to the Stellarwind program. related to ?filtering.? l4 59049 5 9049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 21 of 37 These descriptions, while partially redacted, indicate that FISC issued a Compliance Order stating that violated its own proposed limitations? on at least one occasion. Joint IG Report, Vol. I, at 53?54; to Similar descriptions of Notices of Compliance Incidents filed by Lreferring to what appears to be the same factual scenario). The unredacted portion explains that OIG issued a report as to the unauthorized collections and concluded that ?there were systemic management failures? and ?a complete lack of program management with regard to collection.? ?e_e Office of the Inspectors General of the Department of Defense, Department of Justice, Central Intelligence Agency, and Office of the Director of National Intelligence, Report on the President?s Surveillance Program, Volume (?Joint IG Report, Vol. July 10, 2009, at 219?21; E-80 to E-82. Descriptions of how the collection of data under the Stellarwind program implicated the Government's discovery obligations in criminal cases. including descriptions of individual cases and various legal memoranda analyzing those oblivations. OIG concluded that DOJ ?made little effort to understand and comply with its discovery obligations in connection with Stellarwind?derived information for the first several years of the program.? at 333?59, 402?03; E- 84 to E-110, E?l 12 to Tables listing statistics related to applications. approvals, and withdrawn applications to FISC related to surveillance pursuant to Section 2 IS. The information disclosed and redacted appears to be almost random, with, for example, the number of US. and non-US. persons referenced in Section 215 orders disclosed for 2002 and 2003, but redacted from 2004 and 2005. To the extent that these Section 215 requests and orders related to bulk data collection to add information to a database to be queried at some later time, the Second Circuit determined that such actions plainly exceeded the scope of the authorizing statute. Am. Civil Liberties Union v. Clapper, 785 F.3d 787, 821 (2d Cir. 2015); Office of the Inspector General, Department of Justice, A Review of the Federal Bureau of Investigation?s Use of Section 215 Orders for Business Records Section 215 Review March 2007, at to E- 115 to E-121. Similar tables in the March 2008 OIG review of the use of Section 215 orders. SE Office of the Inspector General, Department of Justice, A Review of the Use of Section 215 Orders for Business Records in 2006 Section 215 Review March 2008, at DOJ-OIG-00846 to E-123 to E-129. A description of a unique and troubling case in which the FBI applied twice fora surveillance order from FISC under Section 215, and was reiected twice based on First Amendment grounds. Rather than heed the determinations of FISC, the FBI went after the desired information anyway using NSLs, despite the fact that the 15 5 9049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 22 of 37 use of NSLs is subject to the same explicit First Amendment restrictions as Section 215. The FBI General Counsel admitted to electing not to review the underlying investigation in light of the FISC decisions because she ?disagreed with the court.? Much of the description of the actual case remains redacted. at to E-131 to E-140, and related pages (if any). A description of a gap in the procedures concerning the FBl?s targeting selection under Section 702, which is referred to as a ?mistake? by the FBI General Counsel. The rest of the description of the ?mistake? is redacted. 702 Report, at E-142, and surrounding pages. Description of an "improper" NSL issued in connection with a terrorism investigation in Charlotte. North Carolina. in which the FBI requested educational records. Much of the information concerning that incident, which the Joint IG Report itself admits was covered extensively in ?press accounts,? is redacted, despite the fact that educational records are not properly subject to NSL requests, as the FBI presumably well knew. FBI NSL Review I, at DOJ-OIG-00134 to to E-145, and related pages (if any). Description of ?community of interest? and ?calling circle? requests made pursuant to Exigent Letters and NSLs to obtain information about parties who were not direct targets of an investigation. OIG concluded unequivocally that ?we believe that the community of interest [redacted] practices used by the FBI were improper.? Further, OIG concluded that the use of Exigent Letters as an investigatory technique exceeded the law, and that practices governing their use were plainly inadequate. FBI Exigent Letters Review, at to to to E-152 to E155, and related pages (if any). Description of the use ot? Exigent Letters in three leak investigations involving the 213%; This extensive data gathering operation included the obtaining of a Washington Post reporter?s telephone billing records. OIG found that the FBI, in addition to foregoing the required formal NSL process for requesting the records in question, ?did not comply with the federal regulation and policy that requires Attorney General approval and a balancing of First Amendment interests and the interests of law enforcement before issuing subpoenas for the production of reporters? telephone toll billing records.? 83 at to DOJ- to to E-190, to E- 195, and related pages (if any). Discussion of the legal basis for the claim that it could obtain certain telephony and other records ?without any legal process or qualifying emergency through voluntary production by the community service providers.? While it does not appear that any records requests were based on this claimed authority, OIG stated that its use presented ?significant policy implications? that creates a 16 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 23 of 37 ?significant gap in FBI accountability.? Li. at to 00688; to and related pages (if any). In support of these redactions, the Government primarily cites Exemptions 1, 3, and 7. None of these exemptions is properly invoked to shield wrongdoing or embarrassment. The contours of Exemption 1 are defined by Exec. Order No. 13526, 75 Fed. Reg. 707 (2009). Exemption 1 permits the withholding of information that is ?properly classi?ed? according to the rules set forth in Exec. Order No. 13526. The order in turn permits classi?cation only of those documents the unauthorized disclosure of which ?reasonably could be expected to cause identifiable or describable damage to national security? and ?pertains to? one of eight enumerated topics. Exec. Order No. 13526 1.4.10 Put simply, the Government must be able to identify or describe the damage that could reasonably be expected to result from disclosure. S9311. Critical to this suit, the Executive Order places other clear limits on what constitutes ?properly classified.? In particular, classification is prohibited if the purpose of that classification is to: conceal violations of law, inefficiency, or administrative error; (2) prevent embarrassment to a person, organization, or agency; (3) restrain competition; or (4) prevent or delay the release of information that does not require protection in the interest of national security.? 10 Section 1.4 sets forth the following categories of information that are properly subject to classification: military plans, weapons systems, or operations; foreign government information; (0) intelligence activities (including covert action), intelligence sources or methods, or foreign relations or foreign activities of the United States, including confidential sources; scientific, technological, or economic matters relating to the national security; United States Government programs for safeguarding nuclear materials or facilities; vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; and the development, production, or use of weapons of mass destruction. I7 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 24 of 37 The redactions at issue here principally deal with instances where the OIG explicitly determined there to be wrongdoing or mistakes. Moreover, the Second Circuit has now found that at least one subset of the Government?s surveillance programs, the bulk telephony metadata collection under Section 215, is not authorized by law. m, 785 F.3d at 824. It is impossible to square the invocation of Exemption 1 with actions that are unlawful or embarrassing under the plain terms of the Executive Order. Similarly, DOJ at times invokes Exemption 3 to justify withholding these descriptions of possible governmental wrongdoing. Exemption 3 exempts records that are made confidential by another statute other than FOIA. .Y. Times Co., 756 F.3d at 104. While DOJ has yet to cite the specific statutes it believes mandate the redactions, it is likely that will reference Section 102A(i)(l) of the National Security Act of 1947, 50 U.S.C. 3024 (protecting ?intelligence sources and methods from unauthorized disclosure?); and Section 6 of the National Security Agency Act of 1959, 50 U.S.C. 3605 (limiting the ?disclosure of the organization or any function of the National Security Agency, or any information with respect to the activities thereof, or of the names, titles, salaries, or number of the persons employed by such agency?). Neither statute is sufficient to support the redactions here. As an initial matter, it is far from clear that any intelligence sources or methods are actually contained within the redactions, much less intelligence sources or methods that have not already been disclosed publicly. For example, the extended discussion of how DOJ failed to heed its obligations concerning the production of exculpatory evidence in criminal cases would pose no risk at all of revealing an intelligence source or method. Joint IG Report, Vol. at 333?59, 402?03; E-fact, much of the redacted material relates 18 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 25 of 37 to legal or policy discussions surrounding various actions taken by the FBI and others, material that would appear to deal with the law of criminal procedure, not operational details or specifics about actual intelligence methods. More generally, the core purpose of Exemption 3 is ill-served if it could be used to shield activities that the Government itself deems to be violations of the law. While the Second Circuit has noted that a FOIA action is not a proper vehicle for having a court determine whether a particular source or method is illegal (and, thus, not properly within the statutory definition of ?intelligence source or method?), here the 016 has already made that determination in the very document in question. Am. Civil Liberties Union v. Dep't oi'Justice, 681 F.3d 61, 75 (2d Cir. 2012) (determining, following in camera review, that information related to waterboarding still qualified as intelligence sources or methods). Further, many of the details of the surveillance methods have been publicly revealed, as discussed above in the Factual Statement, and the Government?s decision to redact information about wrongdoing related to those now? disclosed methods is contrary to both the spirit and letter of FOIA. Finally, the Government also cites Exemption 7, and most frequently Exemption which exempts from disclosure ?records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . (E) 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. The Second Circuit has specified that the exemption covers only ?investigatory records that disclose investigative techniques and procedures not generally known to the public.? Doherty V. U.S. Dep?t of Justice, 775 F.2d 49, 52 n4 (2d Cir. 1985). It appears that many of the redactions have 19 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 26 of 37 nothing to do with techniques and procedures. Instead, much of the redacted material comes in sections discussing legal or policy debates. Moreover, extensive public acknowledgement of the techniques or procedures has already occurred, making the exemption inapplicable. Conti v. US. Dep?t of Homeland See, No. 12 Civ. 5827 (AT), 2014 US. Dist. LEXIS 42544, at *61 (S.D.N.Y. Mar. 24, 2014) (denying agency summary judgment motion as to Exemption 7(e) and ordering disclosure of redacted information that was already in the public domain). But even in the absence of public acknowledgment, the Government cannot rely on Exemption to shield wrongdoing. The Second Circuit has made that clear: ?[U]nauthorized or illegal investigative tactics may not be shielded from the public by the use of FOIA exemptions.? Kuxma v. Internal Revenue Sew, 775 F.2d 66, 69 (2d Cir. 1985); see also Wilkinson v. FBI, 633 F. Supp. 336, 349?50 (CD. Cal. 1986) (?Exemption 7(e) may not be used to withhold information regarding investigative techniques that are illegal or of questionable legality. The agency can have no valid interest in preventing the public from discovering such techniques - indeed, there is a strong countervailing public interest in exposing such methods to public scrutiny, and in ensuring that agencies do not abuse their police B. Redactions t0 Factual Matters that Have Been Explicitlv Officially Acknowledged and Publiclyr Disclused by the Government The Times also challenges the Government?s over?redaction of the OIG report on Section 702 of the FISA Amendment Act, which authorizes collection of content and metadata from Internet companies. 702 Report. The Government has officially acknowledged critical details about the surveillance activities conducted under Section 702 in particular, about the program called ?Prism.? The decision to redact virtually everything about Prism in the 702 Report is unsustainable in light of all that has already been publicly acknowledged. 20 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 27 of 37 In June of 2013, hours after the first of the Snowden documents became public, the Obama administration officially confirmed that the federal government was collecting data on foreigners overseas from Internet companies.11 Later, the Government disclosed that as of 2011 more than 250 million Internet communications were being obtained each year under Section 702. Ntnne Redacted], 2011 US. Dist. LEXIS 157706, at *36 (FISA Ct. Oct. 3, 2011) (?Bates Opinion?). The intelligence services have two types of data collection under that section: ?upstream? and Prism. PCLOB Report; McCraw Decl. EX. P, at 7; Upstream collection, a smaller part by volume of the Section 702 program, involves obtaining Internet messages from companies that provide the telecommunications networks over which such communications ?ow. It; Prism, on the other hand, obtains data directly from communications service providers that use the Internet, like Facebook and Google. Li. More than 90% of the 702 collection activity occurs through Prism. Bates Opinion, 2011 US. Dist. LEXIS, at *36. As a result of the government?s declassi?cations for the PCLOB Report, we now know the material aspects of how Prism worked. The report, using a hypothetical target and hypothetical company, explained: The NSA learns that John Target, a non-US. person located outside the United States, uses the email address to communicate with associates about his efforts to engage in international terrorism. The NSA applies its targeting procedures (described below) and ?tasks? to Section 702 acquisition for the purpose of acquiring information about John Target?s involvement in international terrorism. The FBI would then contact Company (a company that has previously been sent a Section 702 directive) and instruct Company to provide to the Government all communications to or from email address The acquisition continues until the government ?detasks? PCLOB Report; McCraw Decl. Ex. P, at 34; '1 Charlie Savage et al., us. Confirms that It Gathers Online Data Overseas, NY. Times, June 6, 2013, available at 21 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 28 of 37 The report goes on to describe how the data is handled following collection. The NSA obtains the Prism data and then shares it with the CIA and FBI. Li. Each agency is required to apply minimization procedures (procedures designed to cull out information unrelated to investigative needs). Li. The NSA also employs technical systems to assure that the collection is limited to the data sought by the government. Further, various oversight mechanisms are used to assure that each agency, in targeting and minimizing, comports with the law. at 8. Despite the central role that Prism has played in the collection of hundreds of millions Internet communications, and despite the Government?s official disclosure of its existence and operations, there is, inexplicably, only a single unredacted reference to Prism in the 280?page 702 Report. 702 Report at Of particular concern is the nearly complete redaction of 702 Report?s findings and recommendations, many of which presumably address the already disclosed operation of Prism. at to to Similarly, there is complete redaction of what appears to be a discussion of Prism in the later part of the report. sr? at 121; 13-230.12 Because of the extensive redaction, it is impossible to say what other withheld sections of the report deal with Prism. Our concern is that DOJ has misapplied the ?official acknowledgement? doctrine. Under Second Circuit FOIA law, the Government?s official acknowledgement of previously secret material works as a waiver of its ability to invoke a FOIA exemption. NY. Times Co., 756 F.3d at 114 (??Voluntary disclosures of all or part of a document may waive an otherwise valid FOIA exemption?? (quoting Dow Jones Co. v. US. Dep?t ofJustice, 880 F. Supp. 145, 150?51 (S.D.N.Y. 1995?). In NY. Times, the Court recognized that the test for waiver remained the 1?2 Because the other main heading in that section deals with upstream collection, it is logical to deduce that the redacted heading refers to Prism. 22 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 29 of 37 one set forth in Wilson v. CIA, 586 F.3d 171, 186 (2d Cir. 2009), which on its face requires the public statement to ?match? the withheld information at issue. 756 F.3d at 120. But, the court continued, a ?rigid application? of the test ?may not be warranted,? and the court questioned the wisdom of requiring the waived information to be a near facsimile of the publicly disclosed. (?Indeed, such a requirement would make little sense. A FOIA requester would have little need for undisclosed information if it had to match precisely information previously disclosed?). But the Second Circuit actually went beyond merely raising questions about m. A close look at the decision in NY. Times reveals the ?exibility that courts are to employ in deciding waiver. At issue in NY. Times was a legal memorandum that laid out the Justice Department?s rationale under domestic and international law for permitting the killing of persons suspected of terrorism through targeted drone strikes. Tellingly, the Second Circuit, in ordering the release of large parts of the memorandum, specifically directed disclosure of the memorandum?s legal discussion of 18 U.S.C. 956(a) (dealing with murder abroad). That is a provision that was not mentioned at all in the administration?s prior public statements. Instead of applying mechanically, the court compared the public disclosures about targeted killings to the withheld memorandum and considered whether the disclosures sought by plaintiff would ?add to the risk.? Put simply, when the material elements of a previously secret document were already acknowledged, and the additional disclosures at issue would merely elaborate on what had already been disclosed without creating harm, there was no reason to allow the Government to continue withholding. As a result of the public acknowledgement, the Government faces a substantial burden in showing that the nearly universal redaction of material related to Prism in the 702 Report is justified under FOIA. 23 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 30 of 37 C. Information About Publicly Filed Criminal Court Cases The Government also withheld from public view descriptions of criminal cases that involved information derived from its various surveillance programs. Far from being secret, however, these cases were generally pursued in open court and resulted in convictions. These redactions include: A description of the specific cases identified as ?successes? in the application of the Stellarwind program. What little is unredacted about these specific cases indicates that the individuals targeted were arrested and convicted, presumably in open court. Joint IG Report, Vol. I, at 65?68; to A chart of individual cases and the contribution to those cases provided by the Stellarwind program. The OIG Report states that at least some of those cases led to arrests and convictions. Office of the Inspectors General of the Department of Defense, Department of Justice, Central Intelligence Agency, and Office of the Director of National Intelligence, Report on the President?s Surveillance Program, Volume 11 (?Joint IG Report, Vol. July 10, 2009, at 100?02; to E-241. A description of specific counterterrorism cases that appear to have led to arrest, indictment, and conviction. Joint 1G Report, Vol. at 317?24; to 252. A description of a counterterrorism case built on information derived by NSLs that led to the conviction of eleven individuals on charges including providing material support to terrorists and conspiracy. FBI NSL Review I, at DOJ- E-254. Concededly, because of the extensive nature of the redactions, we cannot speci?cally sort out how much of the information has been officially acknowledged as a result of disclosures made in the court cases. Nonetheless, it is hard to understand how information regarding cases tried (successfully) in open court could conceivably be withheld from public view under any exemption. Indeed, the Government has redacted nearly everything about public cases that are in the public record, for which people are currently serving jail time, including the names of the 59049 24 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 31 of 37 cases in question. The burden falls on the Government to show how, in each of these cases, the redacted information is properly withheld despite the existence of public court proceedings. We note that the Joint IG Report specifically raises concerns that the Government may not have satisfied its obligations under Brady v. Maryland, 373 US. 83 (1963), to disclose to defendants evidence obtained or derived from its various surveillance programs. Classification, of course, should not be used to continue to shield the details of any such violations from those affected. D. Information Relating Entirely to Legal Analysis or Known Historical and Statistical Information The Government also has redacted information that is improperly classi?ed. Two types of information are at issue. First, the Government has claimed classification for information the disclosure of which would not ?logically or plausibly? pose a risk to national security. Second, classification has been improperly invoked to redact parts of the reports that do not relate to intelligence operations, sources, or methods, including abstract legal analysis. These specific instances include: 0 An account of the original legal analysis written by John Yoo that provided the sole legal justification for the implementation of Stellarwind. This analysis was later directly rejected and replaced by analysis authored by other attorneys at OLC. Joint IG Report, Vol. I, at 12?16; to E-260. A description of those who had access, at various points, to information about Stellarwind, including the cumulative totals of those who had received clearances related to the program. This section also includes descriptions of the nature of briefings provided to FISC, but redacts how James Baker, the head of OIPR, became aware of Stellarwind based on ?strange, unattributed? language in a FISA application, despite the fact that the link between this discovery and Stellarwind is now a matter of public record. at 25?28; to E-265. A chart of the cumulative number of clearances for Stellarwind. Joint IG Report, Vol. II, at 165; 25 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 32 of 37 0 Statistics on the use of NSLs from 2003 to 2005. DOJ has elected to unredact some statistics in this section, but, inexplicably, not others. For example, the report indicates that the FBI issued 143,074 NSLs in those years, but redacts how many of that total were made pursuant to three particular statutes included in semi?annual reports to Congress, despite also acknowledging that the redacted number re?ected 99 percent of all NSLs. FBI NSL Review I, at 00087 to to E-273. - A description of the general nature of the ?mission? of the Electronic Operations and Sharing Unit at E-275. A listing of the legal guidance provided by the Office of General Counsel concerning the specific adverse consequences case agents should consider when articulating the factual basis for including a non-disclosure provision in an NSL. This guidance was the result of changes to the authorizing legislation for the use of NSLs, and was part of an effort to ensure that non?disclosure obligations were not automatically and improperly imposed on those receiving NSLs. Office of the Inspector General, Department of Justice, A Review of the Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006 NSL Review March 2008, at DOJ-OIG-00335 to E-277 to E-278. In support of these redactions, DOJ primarily cites Exemptions 1, 3, and 7. None of those is apt. As explained above (pp. 17?18), Exemption 1 applies only to information properly classi?ed under an executive order that is, information that, if disclosed, ?reasonably could be expected to cause identifiable or describable damage to national security.? Exec. Order. No. 13526 1.4. The classification is to be upheld only if the Court finds that the Government?s explanation for the need for secrecy is ?logical and plausible.? NY. Times Co., 756 F.3d at 119 (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (DC. Cir. 1982)). Logic and plausibility are absent here, where the redactions relate to general or statistical information or to broadly applicable legal advice. DOJ has, for instance, redacted the generic ?mission statement? of the EOPS, which is hardly the sort of information that poses any national security risk. Indeed, DOJ has even cited Exemption 1 for information that it itself has partially revealed. While DOJ has decided to release the full number of NSLs sent from 2003 to 26 59049 Case Document 30 Filed 10/07/15 Page 33 of 37 2005, that same number, broken down into subcategories, suddenly becomes a national security risk, according to DOJ. In addition, DOJ has chosen to redact general legal analysis and guidance that is unconnected to particular operations, including the original legal justification for the entire Stellarwind program authored by John Y00, and the various legal factors case agents should consider when deciding whether to include a non-disclosure provision in a NSL. Such legal analysis, however, similarly fails Exemption 1?s threshold test of a reasonable expectation of damage to national security. Exec. Order No. 13526 1.4. Legal analysis involves identifying, delineating, and evaluating publicly available legal precedent information that is invaluable to the public in understanding whether the administration is acting within the bounds of the law, but utterly irrelevant to enemies wishing to do the United States harm. Under FOIA, the courts are not rendered mere bystanders whenever the executive branch declares something classi?ed. H_alp_em, 181 F.3d at 295 (declining to accept a ?conclusory ?catch-all? assertion? that information is properly classified where Government did not provide ?sufficiently specific explanation?); Am. Civil Liberties Union v. Office of the Dir. of Nat'l Intelligence, No. 10 Civ. 4419 (RJS), 2011 US. Dist. LEXIS 132503, at *15 (S.D.N.Y. Nov. 15, 2011) (finding that the Government ?failed to make the required showing that the information withheld ?logically falls? within Exemption 1? (quoting Wilner, 592 F.3d at Judicial review of the Government?s claimed need for secrecy is an essential bulwark to safeguarding openness in government at a time when unprecedented amounts of information are being withheld from public inspection, undermining the public oversight that is central to accountability. The judiciary is positioned to provide a meaningful check on this pervasive 27 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 34 of 37 power of the Executive. As Senator Daniel Patrick Moynihan once observed, ?secrecy is the ultimate form of regulation because people don?t even know they are being regulated.?13 Nor has DOJ offered any justification for withholding this information under Exemption 3. Indeed, there is little reason to believe that any of the redacted information would implicate ?sources and methods? that are potentially subject to nondisclosure under 50 U.S.C. 3024. A mission statement of a federal agency, or a listing of statistics already partially disclosed, is simply not the type of information about sources or methods contemplated by the statute. The burden rests with the Government to establish the applicability of any asserted exemptions, but there is no reason to believe that this information, which is generally present in reports concerning the activities of the FBI, would reveal anything within the ambit of the National Security Agency Act. The tenuous connection between the withheld information and ?intelligence sources and methods? protected by the National Security Act is even starker in the context of pure legal guidance and analysis. SE NY. Times (7.0., 756 F.3d at 119 (endorsing lower court?s conclusion that ?legal analysis is not an ?intelligence source or Finally, it is plain that Exemption 7 likewise offers no justification for withholding. The redacted information would reveal nothing about non-routine investigatory techniques and procedures. To the extent that the legal analysis at issue constitutes ?guidelines? for law enforcement investigations, it strains credulity to assert that knowledge of the original broad 13 John Podesta, Need to Know: Governing in Secret, i_n The War on Our Freedoms: Civil Liberties in an Age ry?Terrm'ism 220, 227 (Richard C. Leone Greg Anrig Jr. eds, 2003). ?4 Indisputably, for certain documents, legal analysis may be ?inextricably intertwined? with properly classifiable information, making redaction of the classified information impossible. But segregability is subject to court review. Am. Civil Liberties Union v. FBI, No. 11 Civ. 7562, 2014 US. Dist. LEXIS 141933, at *7 (S.D.N.Y. Oct. 6, 2014) portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.? (quoting v. U.S. Marshals Sena, 494 F.3d 1106, 1116 (DC. Cir. 28 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 35 of 37 legal justifications for surveillance, or the specific factors agents must consider when applying a non?disclosure clause, in any way poses a risk that a potential target could somehow circumvent the law. E. Descriptions of the Narrative of the Legal Dispute Between OLC Attorneys and White House Of?cials Concerning Flaws in the Legal Justifications for Stellarwind Finally, The Times challenges the curiously extensive redactions to the narrative of the internal struggle between DOJ lawyers and the White House in 2004 over the legality of the Stellarwind program. As is now well known, an initial analysis, authored by John Yoo in 2001 and broadly permitting sweeping surveillance and data collection, was challenged three years later by successor officials in OLC after Yoo?s departure. That led to the hospital room confrontation between the Bush White House, intent on getting reauthorization for the program, and Justice Department officials concerned about its legality, as well as the mass resignation threat from some of those officials. The details of the events are spelled out in detail in the Joint IG Report, and the episode has been the subject of congressional testimony and books and articles by the main participants. Joint IG Report, Vol. I, at 36?50; Joint IG Report, Vol. II, at 123; Joint IG Report, Vol. at 19?42, 99?199. Yet, DOJ uses redactions here to withhold such things as the actual legal analysis at issue and narrative details of the dispute, including: 0 An extensive description of the internal legal dispute between attorneys for the OLC and members of the presidential administration over whether legal justifications authored by John Yoo provided legal support for the continued operation of Stellarwind. Significant portions of this discussion are redacted, deSpite the fact that those portions appear to relate entirely to legal arguments that undoubtedly provided the chief basis for the program?s operation, and that many of those arguments were later discarded as improper. Joint IG Report, Vol. I, at 36?50; to 29 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 36 of 37 I A description of what is likely the same issue concerning the legal justification for Stellarwind, but which is almost entirely redacted. Joint 1G Report, Vol. II, at 123; E-297, and surrounding pages. 0 A similar but much more detailed description of the internal legal dispute concerning the legal justifications for the Stellarwin program, including discussion of the legal analysis that supplanted the original analysis authored by John Y00 and that subsequently allowed the program to continue operation. Joint IG Report, Vol. at 25?42, 104?17, 122? 33, 142?49, 158?80, and 182?86; to to to 346 to 352; to E-376, and E-378 to E-382. These redactions are puzzling and are not grounded in legal doctrine. First, as discussed above (pp. 26?28), there is no basis for withholding abstract legal analysis as a classified secret. Second, as also discussed above (pp. 22-23), the extensive public acknowledgement of the facts of the dispute, including the details of Stellarwind, acts as a waiver to any exemption that the Government may proffer. Third, to the extent the program under discussion was illegal, or is being shielded merely to protect against the revelation of embarrassing details, FOIA does not provide a basis for withholding information from public purview. (E pp. 17?19 above.) The need for fuller disclosure is not trivial. The con?ict centered on basic questions of rule of law in democracy: Did the war on terrorism give the president carte blanche to conduct surveillance in the national interest? What role does DOJ play, and should it play, in assuring that the Executive Branch comports with the law? What oversight should the courts have to assure that individual liberties are properly protected? Were appropriate safeguards put into place to assure the legality of the surveillance programs? Because of the scope of the redaction, we cannot determine the degree to which the redaction fails to comport with the legal precedents of FOIA. We thus ask the Court to be particularly vigilant in holding the Government to its burden of proof here in light of the public significance of the controversy and the dubious legal basis that appears to be used to support the redactions. 59049 Case 1:14-cv-03776-AT Document 30 Filed 10/07/15 Page 37 of 37 CONCLUSION For each and every of the reasons set forth above, The Times respectfully asks this Court to grant The Times?s motion for summary judgment; (ii) order the Government to make public the challenged withheld sections of the reports within 20 days, award The Times the costs of this proceeding, including reasonable attorneys? fees, as expressly permitted by and (iv) grant such other and further relief as the Court deems just and proper. Dated: New York, NY October 7, 2015 59049 Respectfully submitted, ls/ David E. McCraw David E. McCraw, Esq. Jeremy A. Kutner, Esq. The New York Times Company Legal Department 620 Eighth Avenue New York, NY 10018 Phone: (212) 556-4031 Facsimile: (212) 556?1009 Email: mccraw nytimes.com Attorneys for Plaintiffs 31