U.S. Department of Justice Office of Legal Counsel Washington, D.C. 20530 August 3, 2018 Gabe Roth Executive Director Fix the Court gabe@fixthecourt.com Re: FOIA Tracking No. FYl 7-207; Fix the Court v. DOJ, D.D.C. No. 18-cv-1620 Dear Mr. Roth: Thjs letter partially responds to your May 8, 2017 Freedom oflnformation Act ("FOIA") request to the Office of Legal Counsel ("OLC") seeking, as narrowed, "[a]ll correspondence sent by the Assistant Attorney General in charge of the Office of Legal Counsel and his or her primary deputy to Brett M. Kavanaugh and all correspondence sent by Brett M. Kavanaugh to the Assistant Attorney General in charge of the Office of Legal Counsel and his or her primary deputy from January 20, 2001, to May 30, 2006," including carbon copied communications . As you know, the request is also the subject of the above-captioned litigation. As of this date, we have processed 404 pages of responsive records. We have enclosed 230 pages with redactions and withheld the remaining 174 pages in full. Our redactions are based on FOIA Exemption Five, 5 U.S .C. § 552(b)(5), or FOIA Exemption Six, 5 U.S.C . § 552(b)(6). The full withholdings are based on Exemption Five. For your information, Exemption Five exempts material protected by the attorney-client, deliberative process, and presidential communications privileges, as well as the attorney work product doctrine and other privileges. Exemption Six exempts material the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. We have determined that none of the withheld material is appropriate for discretionary release. We are continuing to process responsive records. For your information, Congress excluded three discrete categories oflaw enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. § 552(c). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist. Your counsel may contact Danielle Wolfson Young of the Civil Division, Federal Programs Branch, at 202-616-2035 or at danielle.young2@usdoj.gov, to discuss any aspect of your request. Additionally, you may contact the Office of Government Information Services ("OGIS") at the National Archives and Records Administration to inquire about the FOIA mediation services they offer. The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration, Room 2510, AM( HICAN PVERSIGHT 8601 Adelphi Road, College Park, Maryland 20740-6001, e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769. Although your request is the subject of ongoing litigation, and administrative appeals are not ordinarily acted upon in such situations, I am required by statute and regulation to inform you of your right to file an administrative appeal. You may administratively appeal by writing to the Director, Office of Information Policy ("OIP"), United States Department of Justice, Suite 11050, 1425 New York Avenue, NW, Washington, DC 20530-0001, or you may submit an appeal through OIP's FOIAonline portal by creating an account on the following web site: https://foiaonline.regulations.gov/foia/action/public/home. Your appeal must be postmarked or electronically transmitted within 90 days of the date of my response to your request. If you submit your appeal by mail, both the letter and the envelope should be clearly marked "Freedom oflnformation Act Appeal." Sincerely, /4//~ Paul P. Colborn Special Counsel Enclosures cc: Danielle Wolfson Young, Trial Attorney Civil Division, Federal Programs Branch Elizabeth France, Counsel American Oversight AM f--=f~ICAN pVERSIGHT 2 Whelan, M Edward III Whelan, M Edward III Thursday, September 20, 2001 9:49 AM 'Kavanaugh, Brett' Comments on Title IV of draft bill From: Sent: To: Subject: A handful of comments: 1. . (b) (5) l f . One simple fix would b . (b) (5) E.g.: . (b) (5) ng al 8. . 2. y: (b) (5) e. e". to ty es ms n. . e. s. . If you want me to draft language to address (b) and (c), let me know. 3. (b) (5) s: urt he se d. h. . 4. (b) (5) : . E.g.: t (b) (5) ." 5. (b) (5) ". VERSIGHT Document ID: 0.7.18648.5030 18-1620-000001 Helgard_C. Walker@who.eop .gov From: Helga rd_ C._Walker@who.eop.gov Sent : Thursday, October 4, 2001 3:10 PM To: Brett _ M._Kavanaugh@who.eop.gov Cc: Whelan, M Edward Ill; Jay_P._Lefkowitz@omb.eop.gov; Rebecca _A._ Beynon@omb.eop.gov; Joel _ D._ Kaplan@who.eop.gov; Steve n_ D._ Aitken@omb.eop.gov Subject : RE: OLC: Attachments : pic05304.pcx (b) (5) Airline Board (b) (5) Brett M. Kavanaugh 10/04/2001 02:58:04 PM Record Type: Record To: Helgar d C. Walker/WHO/EOP@EOP cc: See the distr ibuti on list at the bottom of this message bee: (b) (5) Subject: RE: OLC: I Airline Board (Document link: Helgard C. Walker) (b) (5) Yes. We were told by OLC on the morning of Friday the 21st that ·. Joel and I so informed the congressional staffs and some Members. We were not involved in the negotiations about this specific issue , however. The negotiations enta iled the 4 leaders (Dasch le, Lott, Hastert, Gephardt) s ittin g in a room with 2 staff members each dur ing (b) (5) lunch on the 21st. Gephardt apparent ly st ill insisted on ,. The compromise apparently reached among these 4 leaders - wh o were apparently aware of the OLC advice and Administration (b) (5) position - was to VERSIGHT Document ID: 0.7.18648.5127 18-1620-000002 (b) (5) Let me know if you have further quest ions. He lgard C. Wa lker 10/ 04/2001 02:46:18 PM Record Type: Record To: "Whe lan , M Edward Ill" , Brett M. Kavanaugh/WHO/EOP@EOP cc: Jay P. Lefkowit z/ OMB/ EOP@EOP, Rebecca A. Beynon / OMB/ EOP@EOP, Joel D. Kaplan/WHO/EOP@EOP, Steven D. Aitken/OMB/EOP@EOP bee: (b) (5) Subjec t: RE: OLC: !Airline Board (Documen t link: Brett M. Kavanaug h) Brett , do you remember dea ling with/thinkin g about this issue du ring the leg is lat ive process? (Embedded image moved "Wh e lan , M Edward Ill" to file: 10/04 /2 001 01:50:28 PM pic05304.pcx) Record Type: Record To: Jay P. Lefkowitz/ OMB/EOP , Rebecca A. Beynon/OMB / EOP cc: He lgard C. Walker/WHO/EOP, Joel D. Kaplan/WHO/EOP , Steven D. Aitken/OMB/EOP (b) (5) Subjec t: RE: OLC: Airline Board n C/\N VERSIGHT 1 Document ID: 0.7.18648.5127 18-1620-000003 (b) (5) I haven 't had time to review it with care yet, but (b) (5) -Original MessageFrom: Jay_P._Lefkowitz@omb.eop.gov [ma ilto:Jay_P._Lef kowit z@omb.eop.gov] Sent: Thursday , October 04, 20011:33 PM To: Rebecca _A._Be ynon@omb.eop.gov Cc: Whelan, M Edward 111;Jay_Lefkowitz@dc.kirkland.com; Helgard_C._Walker@who.eop.gov; Joel_D._Kaplan@who.eop.gov; Steven_D._Aitken@omb.eop.gov (b) (5) Subject: Re: OLC: Airline Board This was an issue that came up dur ing the draft ing and I thought -so lved the problem. (b) (5) Is that not correct? From: Rebecca A. Beynon on 10/04/2001 01:28:35 PM Record Type: Record To: Jay Lefkowitz, Helgard C. Walker/WHO/EOP@EOP, Joel D. Kaplan/WHO/EOP@EOP, Steven D. Aitken/OMB/EOP@EOP cc: M.edward.whelan@usdoj.gov (b) (5) Subject: OLC: Airline Board Ed Whelan from OLC has just raised with me the point that (b) (5) •· He hasn 't formed a def inite opinion yet, but wanted to bring the issue to our attention. Ed, could you supp ly a littl e more informat ion? Thanks very much. n C/\N VERSIGHT 1 Document ID: 0.7.18648.5127 18-1620-000004 Message Copied To:__________________________ _ "whelan, m edward iii" jay p. lefkowitz/ omb/ eop@eop rebecca a. beynon/omb/eop@eop joe l d. kaplan/wh o/ eop@eop steven d. aitken/ omb/ eop@eop VERSIGHT Document ID: 0.7.18648.5127 18-1620-000005 18-1620-000006 Document ID: O.7.18648.5127-000001 Jay_P._Lefkowitz@omb.eop.gov From: Jay _ P._ lefkowitz@omb.eop.gov Sent : Thursday, October 4, 2001 3:19 PM To: He lga rd_ C._Walker@who.eop.gov Cc: Whelan, M Edward Ill; Brett_M. _ Kavanaugh@who.eop.gov; Helga rd_ C._Walker@who.eop.gov; Jay _ P._ lefkowitz@omb.eop.gov; Rebecca _A._ Beynon@omb.eop.gov; Joel _ D._ Kaplan@who. e op.gov; Steven_D._A itken@omb.eop.gov Subject : RE: OLC: Attachments : picO3867.pcx (b) (5) Airline Board (b) (5) (b) (5) He lgard C. Walker 10/04/2001 03:11:55 PM Record Type: Record To: Jay P. Lefkowitz/OMB/EOP@EOP cc: See the distr ibuti on list at the bottom of this message bee: (b) (5) Subject: RE: OLC: Airline Board (Document link: Jay P. Lefkowitz) As you can see from the ema il that I just sent out , (b) (5) Jay P. Lefkowitz 10/ 04/2001 02:59:04 PM Record Type: Record VERSIGHT Document ID: 0.7.18648.5162 18-1620-000007 To: Brett M. Kavanaugh/WHO/EOP@EOP cc: See the distr ibuti on list at the bottom of this message bee: (b) (5) Subjec t : RE: OLC: I Airline Board (Doc um ent link: He lgard C. Walker) He lgi: Can you give us a hand with an insert to (b) (5) thanks very muc h Brett M. Kavan aug h 10/ 04/2 001 02:58:04 PM Record Type: Record To: He lgard C. Walker/WHO/EOP@EOP cc: See the dist ributi on list at th e bottom of this message bee: (b) (5) I Airline Board (Documen t Subject: RE: OLC: link: Jay P. Lefkowitz) duplicate 18-1620-000008 Document ID: 0.7.18648.5162 duplicate 18-1620-000009 Document ID: 0.7.18648.5162 duplicate 18-1620-000010 Document ID: 0.7.18648.5162 duplicate 18-1620-000011 Document ID: 01186485162 18-1620-000012 Document ID: Joel_D._Kaplan@who.eop.gov From: Joe l_ O._Kaplan@who.eop.gov Sent: Thursda y, October 04, 2001 3:58 PM To: Brett_M._Kavanaugh@ who.eop.gov Cc: Whe lan , M Edward Ill; Helgard_C._Wa lker@who.eop.gov; Jay_P._Lefkowitz@omb.eop.gov; Rebecca _A._Be ynon@omb.eop.gov; Joe l_ O._ Kaplan@who.eop.gov ; Steven_O._Aitken@omb.eop. gov Subject: RE: OLC: (b) (5) Airline Board (b) (5) (b) (5) VERSIGHT Document ID: 0.7.18648.5171 •- 18-1620-000013 Jay_P._Lefkowitz@omb.eop.gov From: Jay_P._Lefkowitz@omb.eop.gov Sent : Thursday, October 04 , 2001 4:04 PM To: He lga rd_ C._Wa lker@ who.eop.gov Cc: Whe lan , M Edwa rd Ill; Brett _ M._Kavanaugh@who.eop.gov; Jay_ P._ lef kowit z@omb.eop. gov; Brett _ M._ Kavanaugh@who.eop.gov; Helga rd_ C._ Wa lker@ who.eop.gov; Reb e cca _ A._ Beynon@omb.eop.gov ; Joe l_D._ Kaplan@who.eop.gov; Steven _ D._Aitken@omb.eop.gov Subject : RE: OLC: Attachments : pic23291.pcx (b) (5) Airline Board I talked with Walker 's GC who is sens itive t o the issue , and I will be spea king with him and Wa lker at 5:30. (b) (5) He lgard C. Wa lker 10/ 04/2001 03 :50:18 PM Record Type: Record To: Brett M. Kavanaugh/WHO/EOP@EOP cc: See the dist ribut ion list at the bottom of this message bee: (b) (5) Subject: RE: OLC: Airline Board (Docum ent link: Jay P. Lefkowitz) (b) (5) I think that is an exce llent suggest ion 1 In the meant ime, I'll try and come up with some language. If OLC has any ideas as a start ing point, I'd love to hear them. Brett M. Kavanau gh 10/ 04/2001 03:42:49 PM Record Type: Record VERSIGHT Document ID: 0.7.18648.5037 18-1620-000014 To: Helgard C. Walker/WHO/EOP@EOP cc: See the distr ibuti on list at the bottom of this message bee: (b) (5) Subject: RE: OLC: Airline Board (Document link: He lgard C. Walker) (b) (5) (b) (5) He lgard C. Walker 10/ 04/2001 03:11:55 PM Record Type: Record To: Jay P. Lefkowitz/OMB/EOP@EOP cc: See the distr ibuti on list at the bottom of this messa duplicate 18-1620-000015 Document ID: 0.7.18648.5037 duplicate 18-1620-000016 Document ID: 01186485037 duplicate 18-1620-000017 Document ID: 01186485037 duplicate 18-1620-000018 Document ID: 01186485037 duplicate 18-1620-000019 Document ID: 01186485037 18-1620-000020 Document ID: O.7.18648.5037-000001 Helgard_C. Walker@who.eop.gov From: He lga rd_ C._Wa lker@who.eop.gov Sent : Thursday , October 04 , 2001 4:16 PM To: Whe lan , M Edward Ill Cc: Jay _P._Lefkow itz@omb.eop.gov; Brett_ M._Kavanaug h@who.eop.gov; Rebecca _ A._ Beynon@omb.eop.gov; Joe l_ O._ Kaplan@who.eop.gov; Steven _ 0. _ Aitk e n@omb.eop.gov Subject: RE: OLC: Attachments: pic 1868 6.pcx (b) (5) • Airline Board (b) (5) (Embedded image moved "Whe lan , M Edward Ill" to file: 10/04/2001 04:01:53 PM pic18686.pcx) Record Type: Record To: Jay P. Lefkowit2/0MB/EOP@EOP , Helgard C. Wa lker/WHO/EOP@EOP -t cc: See the distribut ion list at the bottom of this message Subject: RE: OLC: (b) (5) Airline Board (b) (5) (b) (5) An add itiona l comment: It is not at a ll clear to me that . As I read the Act, (b) (5) VERSIGHT Document ID: 0.7.18648.5065 18-1620-000021 (b) (5) -Original Message-From: Jay_P._Lef kowitz@omb.eop.gov [mailt o:Jay_P._Lefko wit z@omb.eop .gov ] Sent: Thursday, October 04, 2001 3:52 PM To: He lgard_ C._Walker@who.eop.gov Cc: Whelan, M Edward 111;Brett_M._Kavanaug h@wh o.eop.gov ; Jay _P._Lefko witz@ omb.eop.gov ; Brett_ M._ Kavanaugh@who.eop.gov; He lga rd_ C._Walker@who.eop.gov; Rebecca_A._Beynon@omb.eop.gov; Joel _ D._ Kaplan@who.eop.gov; Steven _ D._Aitken@omb.eop.gov (b) (5) Subject: RE: OLC: Airline Board I have already put in a call. I' ll let you know as soon as I spea k with Walker. He lgard C. Walker 10/ 04/2001 03 :50:18 PM Record Type: Record To: Brett M. Kavanaugh/W HO/ EOP@EOP cc: See the distr ibuti on list at the bottom of this messa duplicate 18-1620-000022 Document ID: 0.7.18648.5065 duplicate 18-1620-000023 Document ID: 01186485065 duplicate 18-1620-000024 Document ID: 01186485065 duplicate 18-1620-000025 Document ID: 01186485065 duplicate 18-1620-000026 Document ID: 01186485065 duplicate 18-1620-000027 Document ID: 01186485065 18-1620-000028 Document ID: 0.7.18648.5065-000001 Whelan , M Edward Ill From : Whelan, M Edward Ill Sent : Thursday, October 04, 2001 4:17 PM To: 'Jay _P._Lefko wit z@omb.eop.gov ' Cc: 'Helga rd_ C._Walker@who.eop.gov '; ' Brett_M._Kavanaugh@who.eop.gov '; 'Rebec ca_A._Beynon@omb.eop.gov '; 'Joel _ D._Kaplan@who.eop.gov '; 'Steven _ D._Aitken @omb.eop.gov ' Subje ct: RE: OLC: I think (b) (5) (b) (5) IAirline Board ought to be someth ing like the fo llow ing: (b) (5) --Original Message--From: Jay_P._Lefkowitz@omb.eop.gov (ma ilto:Jay_P._Lefkow itz@omb.eop.gov] Sent: Thursday, October 04, 2001 4:08 PM To: Whelan, M Edward Ill Cc: Helga rd_ C._Walker@who.eop.gov; Brett_M._Kavanaugh@ who.eop.gov ; Rebecca_A._Beynon@omb.eop.gov; Joel_D._Kaplan@who.eop.gov; Steven_D._Aitken@omb.eop.gov (b) (5) Subject: RE: OLC: Airline Board If Ed's suggest ion is the consensus view, then I don 't believe I will have a hard time se lling that to (b) (5) Walker. (Embedded image moved "Whe lan, M Edwar d Ill" to file: 10/04/2001 04:01:53 PM pic09837 .pcx) Record Type: Record To: Jay P. Lefkowitz/OMB/EOP, Helgard C. Walker/WHO/EOP duplicate Document ID: 0.7.18648.5087 18-1620-000029 duplicate duplicate duplicate duplicate duplicate Document ID: 01186485087 duplicate 18-1620-000036 Document ID: 01186485087 Brett_M._Kavanaugh@who.eop.gov From: Brett_M._Kavanaug h@wh o.eop.gov Sent : Thu rsday , October 4, 2001 5:45 PM To: Whelan, M Edward Ill Cc: He lga rd_ C._Walker@who.eop.gov; Jay_P._Lef kowitz@omb.eop.gov ; Rebecca _A._ Beynon@omb.eop.gov ; Joel _ D._ Kaplan@who.eop.gov; Steve n_ D._ Aitken@omb.eop.gov Subject : RE: OLC: Attachments : pic27339.pcx (b) (5) • Airline Board (b) (5) {Embedded image moved "Whe lan , M Edward Ill" to file : 10/04/2001 05:13:30 PM pic27339.pcx) Record Type: Record To: He lgard C. Wa lker/W HO/ EOP@EOP cc: See the distr ibuti on list at the bottom of this messa ge Subject: RE: OLC:- (b) (5) ~ Airline Board (b) (5) (b) (5) VERSIGHT Document ID: 0.7.18648.5117 18-1620-000037 (b) (5) -Original MessageFrom: Helga rd_ C._Walker@who.eop.gov [mailt o:Helgard_ C._Walker@who.eop.gov] Sent: Thursday, October 04 , 2001 4:39 PM To: Whelan, M Edward Ill Cc: Jay_P._Lefko wit z@omb.eop.gov ; Brett_M._Kavanaugh@who.eop.gov; Rebecca_A. _Be ynon@omb.eop.gov; Joel_ D._Kaplan@who.eop.gov; Steven_D._A itken@omb.eop.gov (b) (5) I Airline Board Subject: RE: OLC: - ·= Yes, I think that's good. Here 's a some what tweaked version, (b) (5) (b) (5) (b) (5) On a housekeeping note, I wou ld add this lan guage (b) (5) One last thing to keep in mind - though I don 't see how we can avoid it, given this pickle that we're in (b) (5) - is th a HCW {Embedded ima ge moved "Whe lan, M Edward Ill" to file: 10/04/2001 04:17:07 PM pic00788.pcx) Record Type: Record VERSIGHT Document ID: 0.7.18648.5117 18-1620-000038 To: Jay P. Lefkowitz/OMB/EOP@EOP duplicate AM'. I l. /I \I " pVERSIGHT Document ID: 0.7.18648.5117 18-1620-000039 duplicate 18-1620-000040 Document ID: 0.7.18648.5117 duplicate 18-1620-000041 Document ID: 0.7.18648.5117 duplicate duplicate 18-1620-000043 Document ID: 0.7.18648.5117 duplicate 18-1620-000044 Document ID: 0.7.18648.5117 duplicate 18-1620-000045 Document ID: 0.7.18648.5117 duplicate 18-1620-000046 Document ID: 01186485117 18-1620-000047 Document ID: 0.7.18648.5117-000001 Whelan, M Edward Ill From: Whelan , M Edward Ill Sent: Thursda y, October 04, 200 1 6:03 PM To: 'Helgard_ C._Walker@who.eo p.gov'; ' Brett_ M._ Kavanaugh@who.eop. gov' Subject: Airline Board : (b) (5) (b) (5) (b) (5) I'11have so me more specific ide as on th is in th e morning. VERSIGHT Document ID: 0.7.18648.5125 18-1620-000048 Helgard_C. Walker@who.eop.gov From: Helga rd_ C._Wa lker@who.eop.gov Sent : Thursday , October 04, 2001 6:05 PM To: Whe lan , M Edward Ill Cc: Jay _P._Lefkow itz@omb.eop.gov; Brett_ M._Kavanaug h@who.eop.gov; Rebecca_ A._ Beynon@omb.eop.gov; Joe l_ O._ Kaplan@who.eop.gov; Steven_ 0. _ Aitk e n@omb.eop.gov Subject: RE: OLC: Attachments: pic22 174 .pcx (b) (5) • Airline Board (b) (5) (b) (5) (Embedded image moved "Whe lan , M Edward Ill" to file: 10/04/2001 05:55:56 PM pic22 174 .pcx) Record Type : Record To: Helgard C. Wa lker/WHO/EOP@EOP cc: See the distr ibut ion list at the bottom of th is message Subject: RE: OLC:-i(b) (5) Airline Board I' m fine on the draft language. (b) (5) VERSIGHT Document ID: 0.7.18648.5148 18-1620-000049 - Origina l Message-From: He lga rd_ C._Walker@ who.eop.go v (ma ilto :Helgard_ C._Walker@who.eop .gov] Sent : Thursday , Octo ber 04, 2001 5:47 PM duplicate 18-1620-000050 Document ID: 0.7.18648.5148 duplicate duplicate duplicate duplicate duplicate duplicate duplicate duplicate duplicate 18-1620-000059 Document ID: 01186485148 18-1620-000060 Document ID: Helgard_C. Walker@who.eop.gov From: Helga rd_ C._Walker@who.eop.gov Sent : Thursday, October 4, 200 1 6:21 PM To: Brett_M._Kavanaugh@who.eop.gov Cc: Whelan, M Edward Ill; Helgard_ C._Walker@who.eop.gov Subject: Re: Airline Board: Attachments: pic09048.pcx (b) (5) (b) (5) 1111 :. Brett M. Kavanaugh 10/04/2001 06:13:21 PM Record Type: Record To: "Whelan, M Edward Ill" cc: helgard c. walker/who/eop@eop (b) (5) Subject: Re: Airline Board: (Document link: Helgard C. Walker) I think bee: (b) (5) (Embedded ima ge moved "Whe lan, M Edward Ill" to file: 10/04/2001 06:02:36 PM pic09048.pcx) Record Type: Record VERSIGHT Document ID: 0.7.18648.5084 18-1620-000061 To: He lgard C. Walk er/WHO/EOP@EOP, Brett M. Kavanaugh/WHO/EOP@ EOP duplicate VERSIGHT Document ID: 0.7.18648.5084 18-1620-000062 18-1620-000063 Document ID: O.7.18648.5084-000001 Brett _M._ Kavanaugh@ w ho.eop.go v Fro m: Brett_M._Kavanaug h@wh o.eop.gov Sent : Thursday , October 4, 2001 6:26 PM To: Jay_P._Lefko wit z@omb.eop.gov Cc: Whelan, M Edward Ill; He lgard_C._Wa lker@ who.eop.gov ; Jay_ P._Lefkowitz@omb.eop.gov; Brett _ M._ Kavanaugh@who.eop.gov; Rebecca_A. _ Beynon@omb.eop.gov ; Joel _ D._ Kaplan@who.eop.gov; Steven_ D._ Aitken@omb.eop.gov Subject : RE: OLC: Att achments : pic30385.pcx Duly considered. (b) (5) Airline Board (b) (5) Jay P. Lefkowitz 10/ 04/2001 06 :23:40 PM Record Type: Record To: Brett M. Kavanaugh/WHO/EOP@EOP cc: See the distr ibuti on list at the bottom of this message bee: (b) (5) Subject: RE: OLC: Airline Board (Document link: Brett M. Kavanaugh) (b) (5) •· Brett M. Kavanaugh 10/04/2001 06:18:08 PM Record Type: Record C VERSIGHT Document ID: 0.7.18648.5145 18-1620-000064 To: Helgard C. Wa lker/WHO/EOP@EOP cc: See the distr ibuti on list at the bottom of this message bee: (b) (5) Subject: RE: OLC: Airline Board (Document link: Jay P. Lefkowitz) seems s imp le and right to me He lgard C. Walker 10/04/2001 06:14:24 PM Record Type: Record To: Jay P. Lefkowitz/OMB/EOP@EOP cc: See the distr ibuti on list at the bottom of this message bee: (b) (5) Subject: RE: OLC: Airline Board {Document link: Brett M. Kavanaugh) Here 's a version based on our prior language: (b) (5) (b) (5) Jay P. Lefkowitz 10/04/2001 06:04:27 PM Record Type: Record To: "Wh e lan , M Edward Ill" cc: See the distr ibuti on list at the bottom of this message bee: (b) (5) Subject: RE: OLC: Airline Board (Document link: Helgard C. Walker) Ed: Just had a long talk with David Wa lker and VERSIGHT Document ID: 0.7.18648.5145 (b) (5) 18-1620-000065 (b) (5) Can you improve on this? (Embedded ima ge moved "Whe lan, M Edward Ill" to file: 10/04/2001 05:55:56 PM pic30385.pcx) Record Type: Record duplicate 18-1620-000066 Document ID: 0.7.18648.5145 duplicate 18-1620-000067 Document ID: 01186485145 duplicate duplicate 18-1620-000069 Document ID: 01186485145 duplicate duplicate duplicate duplicate duplicate duplicate duplicate 18-1620-000077 Document ID: 01186485145 18-1620-000078 Document ID: O.7.18648.5145-000001 Jay_P._Lefkowitz@omb.eop.gov From: Jay _P. _ lefkowitz@omb.eop.gov Sent : Thursday, October 4, 2001 6:30 PM To: He lga rd_ C._Walker@who.eop.gov Cc: Whelan, M Edward Ill; Brett_M. _ Kavanaugh@who.eop.gov; Helga rd_ C._Walker@who.eop.gov; Jay_P. _ lefkowitz@omb.eop.gov; Rebecca _A._ Beynon@omb.eop.gov; Joel _ D._ Kaplan@who. e op.gov; Steven_ D._ Aitken@omb.eop.gov Subject : RE: OLC: Attachments : pic10945.pcx (b) (5) Airline Board Agree completely. I ju st sent it around to "consu lt" He lgard C. Walker 10/ 04/2001 06:28:50 PM Record Type: Record To: Jay P. Lefkowitz/OMB/EOP@EOP cc: See the distr ibuti on list at the bottom of this message bee: (b) (5) Subjec t: RE: OLC: Airline Board (Document link: Jay P. Lefkowitz) (b) (5) Jay P. Lefkow itz 10/04/2001 06:23:40 PM Record Type: Record VERSIGHT Document ID: 0.7.18648.5184 18-1620-000079 duplicate 18-1620-000080 Document ID: 01186485184 duplicate duplicate duplicate duplicate duplicate duplicate duplicate duplicate duplicate duplicate duplicate duplicate 18-1620-000092 Document ID: 01186485184 18-1620-000093 Document ID: O.7.18648.5184-000001 Helga rd_C. W alker@w ho.eop .gov Fro m: Helga rd_ C._Wa lker@who.eop.gov Sent : Thursday , October 04, 2001 6:35 PM To: Whe lan , M Edward Ill Cc: Jay _P._Lefkow itz@omb.eop.gov; Brett_ M._Kavanaug h@who.eop.gov; Rebecca_ A._ Beynon@omb.eop.gov; Joe l_ O._ Kaplan@who.eop.gov; Steven _ 0. _ Aitken@omb.eop.gov Subje ct: RE: OLC: Attac hments : pic31661.pcx (b) (5) IAirline Board (b) (5) (Embedded image moved "Whe lan , M Edward Ill" to file: 10/04/2001 06:28:27 PM pic31661.pcx) Record Type: Record To: Jay P. Lefkowitz/OMB/EOP , Brett M. Kavanaugh/WHO/EDP cc: Helgard C. Wa lker/WHO/EOP , Rebecca A. Beynon/OMB/EOP , Joe l 0. Kaplan/WHO/EOP , Steven 0. Aitken/OMB/EOP Subject: RE: OLC: Airline Board (b) (5) (b) (5) -Or igina l Message-From: Jay_P._Lefkow itz@omb.eop.gov (ma ilto:Jay_P._Lefkow itz@omb.eop.gov) Sent: Thursday , October 04, 2001 6:25 PM duplicate 18-1620-000094 Document ID: 0.7.18648.5199 duplicate 18-1620-000095 Document ID: 01186485199 duplicate 18-1620-000096 Document ID: 01186485199 duplicate 18-1620-000097 Document ID: 01186485199 duplicate 18-1620-000098 Document ID: 01186485199 duplicate 18-1620-000099 Document ID: 01186485199 duplicate 18-1620-000100 Document ID: 01186485199 duplicate 18-1620-000101 Document ID: 01186485199 duplicate 18-1620-000102 Document ID: 01186485199 duplicate 18-1620-000103 Document ID: 01186485199 duplicate 18-1620-000104 Document ID: 01186485199 duplicate 18-1620-000105 Document ID: 01186485199 duplicate 18-1620-000106 Document ID: 01186485199 duplicate 18-1620-000107 Document ID: 01186485199 18-1620-000108 Document ID: O.7.18648.5199-000001 Helgard_C. Walker@who.eop .gov From: Helga rd_ C._Walker@who.eop.gov Sent : Thursday, October 04 , 2001 6:42 PM To: Whelan, M Edward Ill Cc: Brett_M._Kavanaugh@who.eop.gov; Jay_P._Lefkowitz@omb.eop.gov; Rebecca _ A._ Beynon@omb.eop.gov; Joel _ O._ Kaplan@who.eop.gov; Steven _ 0. _ Aitken@omb.eop.gov Subject : RE: OLC: pic26691.pcx (b) (5) ••••••••••• Attachments : : Airline Board Great idea. So here 's the current version: (b) (5) (Sentence got unwieldy so I had to break it up.) (Embedded image moved "Whe lan, M Edward Ill" to file: 10/04/2001 06:27:01 PM pic26691.pcx) Record Type: Record To: Brett M. Kavanaugh/WHO/EOP@EOP, Helgard C. Walker/WHO/EOP@EOP cc: Jay P. Lefkowitz/OMB/EOP@EOP, Rebecca A. Beynon/OMB/EOP@EOP, Joel 0. Kaplan/WHO/EOP@EOP, Steven 0. Aitken/OMB/EOP@EOP Subject: RE: OLC:- (b) (5) ! Airline Board -I I like Helgi 's lan guage , too. We might add ' (b) (5) at the end. C VERSIGHT Document ID: 0.7.18648.5219 18-1620-000109 -Original Message-From: Brett_M._Kavanaugh@who.eop.gov [ma ilto:Brett_M._Kavanaugh@who.eop.gov ) Sent : Thursday, October 04, 2001 6:21 PM To: He lgard_ C._Walker@who.eop.gov Cc: Whelan, M Edwar d Ill; Jay_P._Lefko wit z@omb.eop.gov ; He lga rd_ C._Walker@who.eop.gov; Brett_ M._ Kavanaugh@who.eop.gov; Rebecca_A._Beynon@omb.eop.gov; Joel_O._Kaplan@who.eop.gov; Steven_O._Aitken@omb.eop.gov (b) (5) Subject: RE: OLC: Airline Board seems s imple and right to me He lgard C. Walker 10/ 04/2001 06:14:24 PM Record Type: Record To: Jay P. Lefkowitz/OMB/EOP@EOP duplicate 18-1620-000110 Document ID: 0.7.18648.5219 duplicate 18-1620-000111 Document ID: 01186485219 duplicate 18-1620-000112 Document ID: 01186485219 duplicate 18-1620-000113 Document ID: 01186485219 duplicate 18-1620-000114 Document ID: 01186485219 duplicate 18-1620-000115 Document ID: 01186485219 duplicate 18-1620-000116 Document ID: 01186485219 duplicate 18-1620-000117 Document ID: 01186485219 duplicate 18-1620-000118 Document ID: 01186485219 duplicate 18-1620-000119 Document ID: 01186485219 duplicate 18-1620-000120 Document ID: 01186485219 duplicate 18-1620-000121 Document ID: 01186485219 18-1620-000122 Document ID: 0.7.18648.5219-000001 Whelan , M Edward Ill From : Whelan, M Edw ard Ill Sent : Thursday, October 04, 2001 8:27 PM To: ' Helgard_C._Walker@who.eop.gov Cc: ' Brett_M._Kavanaugh@who.eop.gov Subject : RE: Proposed language '; 'Jay_P._lefkowitz@omb.eop.gov ' ' (b) (5) ---Original Message-From: Helga rd_ C._ Wa lker@who.eop.gov (mai lto:He lgard_ C._Walker@who.eop.gov] Sent: Thursday, October 04, 2001 7:31 PM To: Jay_P._lefkowitz@omb.eop.gov Cc: Whelan , M Edward Ill; Brett_M._Kavanaugh@who.eop.gov Subject: Re: Proposed Language (b) (5) PS I think you had Brett 's old ema il, so I've copied him. Jay P. Lefkowitz 10/04/2001 07:27:22 PM Record Type: Record To: Helgard C. Wa lker/WHO/EOP@EOP cc: brett_kavanaugh@dc.kirkland.com bee: Subject: Re: Proposed language (Document link: Helgard C. Walker} It' s a good quest ion, but I don 't think it' s a problem. VERSIGHT Document ID: 0.7.18648.5220 18-1620-000123 However , I'll look into it a little more. Helgard C. Walker 10/ 04/200 1 07:22:41 PM Record Type: Record To:Jay P. Lefkow itz/OMB/ EOP@EOP cc: brett_kavanaugh@dc.k irkland .com bee: Subject: Re: Propos .ed Language (Document link: Jay P. Lefkowitz) (b) (5) Jay P. Lefkowitz 10/ 04/2001 07:16:35 PM Record Type: Record To: Brett_Kavanaugh@dc.k irkland.com , Helgard C. Walker/WHO/ EOP@EOP cc: Subject: Proposed Language GAO's negotiating with us now. Here's their bid, followed by my counterproposal, whichI haven't sent yet. ------ Forwar ded by Jay P. Lefkowitz/OMB/ EOP on 10/ 04/ 2001 07:14 PM ------- (Embedded image moved Anthony H Gamboa to file: 10/ 04/2001 06:48:19 PM pic30604.pcx ) VERSIGHT Document ID: 0.7.18648.5220 18-1620-000124 Record Type : Record To: Jay P. Lefkowit z/ OMB/ EOP@EOP cc: Subject: Proposed Lan gua ge (f) For purposes of .any operat iona l an d de cisionma king funct ions, th e "Board" mean s the voting members of the Air Transportat ion Stabilizat ion Board es tab lished under Section 102 of th e Act. The voting memb ers of the Board are the Chairman of the Board of Governors of the Feder al Rese rve Syst em (who is th e Chairman of th e Board), the Secretary of the Treasury an d th e Secretary of Tran sportat ion, or th eir des ignees . The Comptroller Genera l, who is a nonvoting member, will not part icipat e in the re view, operat ions, or de liberat ions of the Boa rd but will provide such a udit an d evaluat ion support as the Board may reques t. (b) (5) - VERSIGHT Document ID: 0.7.18648.5220 18-1620-000125 Helgard_C. Walker@who.eop.gov From: He lga rd_ C._Wa lker@ who.eop.gov Sent : Friday, October OS, 2001 6:18 PM To: Whelan, M Edwa rd Ill Cc: Hart, Rosemary; Brett_M._Kavanaug h@wh o.eop.gov; Rebecca_ A._ Beynon@om b.eop.gov Subject: RE: Airline Loan Guarantees Attachments: pic32468.pcx I think it' s too late , as the regs have a lready gone out the door , but I'll copy Rebecca so that we can lay a mar ker on this point as possible act ion in any supp lementa l regs issued by the Board. {Embedded image moved "Whe lan , M Edw ard Ill" to file: 10/ 05/2001 05:10:11 PM pic32468.pcx) Record Type: Record To: He lgard C. Walker/WHO/EOP@EOP cc: "Hart , Rosemary" {Rece ipt Notificati on Requested), Brett M. Kavanaugh/WHO/EOP@EOP Subject: RE: Airline Loan Guarantees Sorry - one additional suggest ion: Changing ' wou ld be even better. (b) (5) :" in the last line to ' (b) (5) II - Original Message-From: Whelan, M Edwa rd Ill Sent: Friday, October OS, 2001 5:06 PM To: 'He lgard_ C._Walker@who.eop.gov ' Cc: Hart , Rosemary; ' Brett_M._ Kavana ugh@ wh o.eop.gov ' (b) (5) Subject: RE: I'm fine on VERSIGHT Document ID: 0.7.18648.5326 (b) (5) I. 18-1620-000126 (b) (5) -Original MessageFrom: Helgard_ C._Walker@who.eop.gov [ma ilto:He lgard _ C._Walker@who.eop.gov] Sent: Friday, October OS, 2001 4:25 PM To: Whelan, M Edward Ill Cc: Hart, Rosemary; Brett_M._Kavanaugh@who.eop.gov Subject: RE: Airline Loan Guarantees (b) (5) Ed, here's the lan guage we wound up with on (b) (5) Since you were sat isified with prior, similar versions of this, I take it you also think this lan guage is (b) (5) (b) (5) (b) (5) Brett , I am copying you to see if you know anything about (b) (5) HCW HCW / J:'.mhorlrl orA HT Document ID: 0.7.18648.5326 18-1620-000127 \ I...I I IU CUUCU image moved "Whe lan , M Edward Ill" to file: 10/ 05/ 2001 01:31:43 PM pic15212.pcx) Record Type: Record To: He lgard C. Walker/WHO/EOP@EOP cc: "Hart , Rosemary " Requested) Subject: RE: Airline Loan Guarantees (Rece ipt Notification (b) (5) He lg i: Rosemary advises tha . - Ed - Original MessageFrom: Whe lan, M Edward Ill Sent: Thursday, October 04, 2001 5:20 PM To: ' He lgard_ C._Walker@who.eop.gov ' Cc: Hart , Rosemary Subject: RE: Airline Loan Guarantees He lgi: I suspect that the issues are int ertw ined: I think (b) (5) (b) (5) ~ but I loo k fo rward to Rosemary 's ins ights on this. Ed - Original Message-From: He lgard_ C._Walker@who.eop.gov [ma ilto:He lgard_ C._Walker@who.eop.gov) Sent: Thursday, October 04, 2001 4:42 PM To: Yoo, John C Cc: Whe lan , M Edward 111;Hart , Rosemary Subject: RE: Airline Loan Guarantees C VERSIGHT Document ID: 0.7.18648.5326 18-1620-000128 Thanks, John. Ed and I have been in heavy ema il traffic on a re lated matter , .. I. But I could st ill use some qu ick and dirty advice on this separate quest ion, (b) (5) (b) (5) I. (Embedded image moved "Yoo , John C" to file: 10/ 04/ 2001 01:09:12 PM pic03958.pcx) Record Type: Record To: He lgard C. Walker/WHO/EOP cc: "Whe lan , M Edwa rd Ill" , "Hart, Rosemary " Subject: RE: Airline Loan Guarantees He lg i: I am go ing to refer this to Ed Whalen, who worked on the a irline bailout, and Rosemary Hart, who does execut ive orders. They s hou ld be ab le t o give you an answer pretty qu ick. John - Orig inal MessageFrom: He lga rd_ C._Walker@who.eop.gov [mailto:Helgard_ C._Wa lker@ wh o.eop .gov ] Sent : Thur sday , Octo ber 04 , 200112:50 PM To: Yoo, John C Subject: Re: Airline Loan Guarantees John - (b) (5) -I Any prob lems with this? What 's the best ve hicle? If you cou ld give me a qu ick read on this, I wou ld grea tly appreciate it. IGHT Document ID: 0.7.18648.5326 18-1620-000129 ···-··~, Helgi ------ Forwarded by Helgard C. Wa lker/WHO/EOP on 10/04 / 200112:46 Helgard C. Wa lker 10/04/200112:45:29 PM --- --- PM Record Type: Record To: Rebecca A. Beynon/OMB/EOP@EOP cc: Jay P. Lefkowitz/OMB/EOP@EOP , Joe l D. Kaplan/WHO/EOP@EOP bee: Records Management@EOP Subject: Re: Airline Loan Guarantees (Document link: He lgard C. Wa lker) I have loo ked at this qu ickly, and my assessment (b) (5) is that -· Does DOT have a proposal for us to look at? I a lso need to talk with my bosses to see how we think (b) (5) 1, as we ll as get adv ice from OLC. I will try and get this done ASAP because I a lways like to have matters nailed down , a lth ough I don 't (b) (5) think it's critical that occur by Friday. (b) (5) None of are go ing out the door anywhere for qu ite a while. HCW From: Rebecca A. Beynon on 10/04 / 2001 08:51:24 AM Record Type: Record To: He lgard C. Walker/WHO/EOP@EOP cc: Jay Lefkowitz Subject: Airline loan Guarantees (b) (5) VERSIGHT Document ID: 0.7.18648.5326 18-1620-000130 (b) (5) that Let me know what you th ink about this, and what st eps, if any, you th ink are needed t o be sure (b) (5) VERSIGHT Document ID: 0.7.18648.5326 18-1620-000131 18-1620-000132 Document ID: O.7.18648.5326-000001 Whelan , M Edward Ill From : Whelan, M Edward Ill Sent : Wednesday , October 10, 200110:25 AM To: 'Jay_P._Lefko wit z@omb.eop.gov '; 'Brett_ M._Kavanaugh@who.eop.gov ' Cc: ' Rebecca_A._Beynon@omb.eop.gov ' Subject : RE: Victim's Compensation Fund Attachments : airline 101001. wpd I attach a draft opinion on this matter. My apologies if the haste shows. I expect to be unreachable (at the Supreme Court) from around 11:00 to 12:45. -Original Message-From: Jay_P._Lefko wit z@omb.eop.gov (mailt o:Jay_P._Lefko wit z@omb.eop.gov] Sent: Tuesday, October 09, 2001 8:57 PM To: Brett_M._Kavanaugh@who.eop.gov Cc: Whelan, M Edward Ill; Rebecca_A._Beynon@omb.eop.gov; Jay_P._Lefkowitz@omb.eop.gov; michb orek@ao l.com Subject: Re: Victim's Compensation Fund (b) (5) thanks Brett M. Kavanaugh 10/09/2001 06:47:42 PM Record Type: Record To: Brett M. Kavanaugh/WHO/EOP@EOP cc: See the distribut ion list at the bottom of this message bee: Subject: Re: Victim's Compensation Fund (Document link: Jay P. Lefkowitz) Just to be clear , (b) (5) 'C VERSIGHT Document ID: 0.7.18648.5335 18-1620-000133 Brett M. Kavanaugh 10/09/2001 06:44:06 PM Record Type: Record To: Rebecca A. Beynon/OMB / EOP@EOP cc: See the distr ibuti on list at the bottom of this message bee: Records Management@EOP Victim 's Compensation Fund (Document link: Brett M. Kavanaugh) Subject: Re: (b) (5) From: Rebecca A. Beynon on 10/09/2001 06:41:07 PM Record Type: Record To: M.Edward.Whelan@usdoj.gov@ jonathan.cedarbaum@usdoj.gov inet , john.yoo@usdoj.gov@ @ inet cc: Jay Lefkowitz, Brett M. Kavanaugh/WHO/EOP@EOP, Compensation Fund inet , michbore k@a ol.com@ inet Subject: Victim 's Ed - I'm trying to track you do wn right now. I left a message with Jonathan, and he sa id you wou ld call (b) (5) wh en you got my message. As the voice message I left you sa id, (b) (6) RB: 202-395-3193; (b) (6) (home) (b) (5) VERSIGHT Document ID: 0.7.18648.5335 18-1620-000134 (b) (5) Mes sage Copied To:__________________________ _ m.edward.whe lan@usdoj.gov@ inet john.yoo@usdoj.gov@ inet jonathan.cedarbaum@usdoj.gov@ inet Jay P. Lefkowitz/OMB/EOP@EOP michborek@ao l.com @ inet Message Copied To:__________________________ _ rebecca a. beynon/omb/eop@eop m.edward.whe lan@us doj.gov@ inet john.yoo@usdoj.gov@ inet jonathan.cedarbaum@usdoj.gov@ inet jay p. lefkowitz/omb / eop@eop michborek@ao l.com @ inet VERSIGHT Document ID: 0.7.18648.5335 18-1620-000135 Brett_M._Kavanaugh@who.eop.gov From: Brett_M._Kavanaugh@ who.eop.gov Sent : Monday, October 15, 2001 7:22 PM To : Whe lan , M Edward Ill Subject : RE: Pre sident ia l Libraries Act Attachments : pic24954.pcx No. {Embedded image moved "Whe lan , M Edward Ill" to file: 10/15/2001 05:35:40 PM pic24954.pcx) Record Type: Record To: Brett M. Kavanaugh/WHO/EOP@EOP cc: Subject: RE: Presidential Libraries Act May Pau l consult with the Archivist 's office on this? - Orig ina l MessageFrom: Whe lan , M Edward Ill Sent: Monday , October 15, 2001 3:37 PM To: 'Kavanaugh , Brett ' (b) (5) Subject: - i- We don 't have anyth ing in the can on this. I've as ked Paul Colborn to prepare Let me know your dead line. VERSIGHT Document ID: 0.7.18648.5352 (b) (5) 18-1620-000136 18-1620-000137 Document ID: Brett_M._Kavanaugh@who.eop.gov From: Brett_M._Kavanaug h@wh o.eop.gov Sent : Monday, October 15, 2001 9:00 PM To: Whelan, M Edward Ill Subject : Re: Presidential Libra ries Act Attachments : pic07731.pcx this week , if possible, thanks (no on Archives consultation) (Embedded image moved "Whe lan , M Edward Ill" to file: 10/15/2001 03:36:40 PM pic07731.pcx) Record Type: Record To: Brett M. Kavanaugh/W HO/ EOP@EOP cc: Subject: Pres ident ia l Librar ies Act - i- We don 't have anyt hing in the can on this. I've asked Paul Colborn to prepar e Let me know your dead line. VERSIGHT Document ID: 0.7.18648.5358 (b) (5) 18-1620-000138 18-1620-000139 Document ID: 0.7.18648.5358?000001 Colbo rn, Paul P From : Colborn, Paul P Sent : Wednesday, October 17, 200110:05 AM To: ' Brett_M._Kavanaug h@wh o.eop.gov ' Cc: Whelan, M Edward Ill Subject: FW: Attachments : (b) (5) (b) (5) OA -1 (b) (5) (b) (5) Brett: Could you please fax me (at 305 -8524 ) the : and referred to in the attached ema il? I a lready have the materials sent to Dawn Johnsen in 1994. Thanks. - Paul cc: Ed -Original MessageFrom: Whe lan , M Edward Ill Sent: Tuesday, October 16, 2001 5:14 PM To: Colborn, Paul P (b) (5) Subject: FW: OA -Original Message-From: Brett _ M._ Kavanaugh@who.eop.gov (ma ilto:Brett _ M._Kavanaugh@who.eop.gov) Sent: Tuesday, October 16, 200 1 5:11 PM To: Whelan, M Edward Ill (b) (5) Subject: OA ------ Forwarded by Brett M. Kavanaugh/WHO/EOP on 10/ 16/2001 05:10 PM ----- Catherine S. Anderson 10/16/200 1 05:09:15 PM Record Type: Record To: Brett M. Kavanaugh/WHO/EOP@EOP VERSIGHT Document ID: 0.7.18648.5376 18-1620-000140 cc: Subject: (b) (5) OA Brett: I am send ing you the following materials in response to Ole's request: {See attached file: -(b) (5) 1.doc) (b) (5) 18-1620-000141 Document ID: 0.7.18648.5376 (b) (5) In any even t, to th e exten t that OLCdoes not alread y have copies, th e materials may be helpful. Let me know if you need any add itiona l informat ion. After OLChas an opportunity to revie w th e mat erials, it may be helpful t o mee t with them to discuss further . Kate VERSIGHT Document ID: 0.7.18648.5376 18-1620-000142 Whelan, M Edward III Whelan, M Edward III Wednesday, October 17, 2001 3:00 PM 'Kavanaugh, Brett' FW: Hatch Act question From: Sent: To: Subject: Brett: Your question whethe C! (b) (5) is proving more complicated than expected. Here's a brief overview of OLC's current! thinking: 1. On the one hand: t! (b) (5) . ! ! ! t! ! . . 2. On the other hand: ic (b) (5) of g. to! on! i). ! . I'm not sure that this is readily amenable to oral resolution. Let's discuss at your convenience. Ed VERSIGHT Document ID: 0.7.18648.5377 18-1620-000143 Dinh, Viet From: Sent: To: Cc: Subject: No. Dinh, Viet Friday, October 19, 2001 5:42 PM Whelan, M Edward III; Newstead, Jennifer 'Brett_M._Kavanaugh@who.eop.gov' RE: legislative tweak to 13 USC 9 But good idea. Should we conside (b) (5) ? -----Original Message----From: Whelan, M Edward III Sent: Friday, October 19, 2001 4:53 PM To: Dinh, Viet; Newstead, Jennifer Subject: RE: legislative tweak to 13 USC 9 Does the approved legislative package do anything on 13 USC 9? -----Original Message----From: Whelan, M Edward III Sent: Thursday, October 04, 2001 1:12 PM To: Dinh, Viet; Newstead, Jennifer Subject: legislative tweak to 13 USC 9 Importance: High Viet and Jennifer: Brett Kavanaugh has asked me to pass along the following: t* (b) (5) . * * . t * . Here's my first stab at a legislative fix: : (b) (5) * " Ed VERSIGHT Document ID: 0.7.18648.5399 18-1620-000144 Brett _M._ Kavanaugh@ w ho.eop.go v Fro m: Brett_M._Kavanaugh@ who.eop.gov Sent : Tuesday, October 23, 2001 9:48 AM To: Whelan, M Edward Ill Su bject : Re: OPM reg quest ion Att achments : pic26953.pcx no,11 (b) (5) land - (b) (5) as app lied to th e people ident ified in (b) (5) (Embedded image moved "Whelan, M Edward Ill" to file: 10/ 23/2001 09:32:26 AM pic26953.pcx) Record Type: Record To: Brett M. Kavanaugh/W HO/ EDP cc: Subject: OPM reg ques tion Is the reg that you were as king about OPM reg that addresses the same matter? VERSIGHT Document ID: 0.7.18648.5414 (b) (5) ? Or is there some separate 18-1620-000145 18-1620-000146 Document ID: O.7.18648.5414-000001 Huntington , Clare From : Huntington , Clare Sent : Tuesday , October 23, 2001 6:27 PM To: ' Brett_M._Kavanaug h@who.eop.gov ' Cc: Whelan, M Edward Ill; Bradshaw, Sheldon (b) (5) - (b) (5) Transportation Secretary Subject: Brett, As I ment ioned on the phone this afternoon , (b) (5) Please let me know if you have any quest ions. Thanks, Clare Huntington 514-4487 VERSIGHT Document ID: 0.7.18648.5413 18-1620-000147 Brett_M._Kavanaugh@who.eop.gov From: Brett_M._Kavanaugh@ who.eop.gov Sent : Wednesday, October 31, 2001 9:02 AM To: Whe lan , M Edward Ill Subject : aviat ion secur ity Any thoughts? ------ Forwarded by Brett M. Kavanaugh/WHO/EOP on 10/ 31/200 1 07:59 AM ----- Elizabeth S. Dougherty 10/30/2001 09:29:49 PM Record Type: Record To: Brett M. Kavanaugh/WHO/EOP@EOP cc: Joel D. Kaplan/WHO/EOP@EOP Subject: aviat ion secu rity Hi Brett ! (b) (5) We are not sure what this means (and neither are the policy or leg fo lks at DOT). So we were hoping that you might look into it (with OLC and DOT's help, of course) to see just what it means to - (b) (5) Wou ld you mind loo king int o this? Please let me know if you have any quest ions. Thanks very muc h! VERSIGHT Document ID: 0.7.18648.5415 18-1620-000148 Huntington, Clare From: Sent: To: Cc: Subject: Attachments: Huntington, Clare Wednesday, October 31, 2001 11:35 AM 'Brett_M._Kavanaugh@who.eop.gov' Whelan, M Edward III Aviation security proposed amendment Sky Marshalls memo.doc Brett-We have looked at the proposed amendment, "Deputization of airport screening personnel," and agree⌧ that on it's face it is unclear what the amendment would achieve. In the attached memorandum, you will⌧ see that OLC has advise ⌧ (b) (5) . ⌧ ⌧ ⌧ . t⌧ . I . . . r⌧ ,⌧ ⌧ ⌧ . For your convenience, I have set forth the relevant statutory provisions below and have attached the OLC⌧ memorandum mentioned above, which was not published or distributed publicly. If you have any⌧ questions, please feel free to call me a (b) (6) . Thanks -- Clare (b) (5) " : ⌧ ⌧ VERSIGHT Document ID: 0.7.18648.5421 18-1620-000149 Brett M._Kavanaugh@who.eop.gov From: Brett_ M._ Kavanau gh@who.eo p.gov Sent: Friday, November 02, 200 1 9 :58 AM To: Whelan , M Edwa rd Ill Subject: Addington Addingt on was should ca ll him if yo u can t o explain; thank s VERSIGHT Document ID: 0.7.18648.5457 (b) (5) 18-1620-000150 Brett_M._Kavanaugh@who.eop.gov From: Brett_M._Kavanaugh@ who.eop.gov Sent : Friday , November 02, 200112:58 To: Whe lan , M Edward Ill Subject: Re: Tuesday comm itte hear ing Attachments: pic23170.pcx PM John wou ld be great if you cannot do it. House Subcomm ittee on Government Efficiency. Horn is cha ir. (Embedded image moved "Whe lan , M Edward Ill" to file: 11/02/200111:04:43 AM pic23170.pcx ) Record Type: Record To: Brett M. Kavanaugh/WHO/EOP cc: Subjec t : Tuesday comm itte hea ring If you rema in of the vie w that I might be as ked to test ify on beha lf of the Administrat ion, please give me more info on th is hearing (which comm ittee , what t ime, precise top ic, etc. ) so that I can get ready. I'll a lso need to have a bac kup plan have anyone e lse in mind, let me know. VERSIGHT Document ID: 0.7.18648.5463 (b) (6) 1. I'll check with John Yoo. If you 18-1620-000151 18-1620-000152 Document ID: O.7.18648.5463-000001 Brett M._Kavanaugh@who.eop.gov From: Brett_ M._ Kavanaugh@who.eo p.gov Sent: Friday, November 02, 2001 4:25 PM To: Whelan , M Edward Ill Subject: PRA Attachments: pres ide ntial records - lett er t o Horn.doc; Pres ide ntial Records Act ta lking points November 1.doc (See att ached file : pres iden tial records - letter to Horn.doc)(See attach ed file : Pres iden tia l Records Act ta lking points Nove mber 1.doc) VERSIGHT Document ID: 0.7.18648.5467 18-1620-000153 Brett _M._ Kavanaugh@ w ho.eop.go v Fro m: Brett_M._Kavanaug h@wh o.eop.gov Sent : Monday, November 5, 2001 9:10 AM To: Whelan, M Edward Ill Su bject : Horn Test imony Att achments : housepra.doc ; pic03985.doc - ; (b) (5) FYI; ------ Forwarded by Brett M. Kavanaugh/WHO/EOP on 11/ 05/2001 09:09 AM ----- (Embedded image moved GaryM Stern to file: 11/ 02/ 2001 04:24:24 PM pic03985.pcx) Record Type: Record To: Brett M. Kavanaugh/W HO/EOP cc: Subject: Horn Tes tim ony As we discussed , here is the current, final version of the testimony, which includes all of the OLC (b) (5) changes, except that, as we discussed , want any add itiona l changes in light of the OLC testimony. VERSIGHT Document ID: 0.7.18648.5468 !. Please adv ise us asap if you 18-1620-000154 18-1620-000155 Document ID: Brett M._Kavanaugh@who.eop.gov From: Brett_M._Kavanaugh@ who.eop.gov Sent: Monday , November OS, 200110:10 AM To: Whe lan , M Edward Ill Subject: Re: Judge 's letter to Congressman Horn Attachments: Nov 2 lett er to Rep Horn re Pres Records.doc ------ Forwarded by Brett M. Kavanaugh/W HO/EOP on 11/ 05/200110:09 AM ----- Elizabeth N. Camp 11/0S/ 200110:06:49 AM Record Type: Record To: Brett M. Kavanaugh/W HO/EOP@EOP cc: bee: Subject: Re: Judge 's letter to Congressman Horn (Document link: Brett M. Kavanaug h) {See attached file: Nov 2 letter t o Rep Horn re Pres Records.doc ) Brett M. Kavanaugh 11/ 0S/ 200110:02:20 AM Record Type: Record To: Elizabe th N. Camp/W HO/ EOP@EOP cc: Subject : Judge 's letter t o Congressman Horn (Document link: Elizabe th N. Camp) can you e-ma il fina l vers ion so tha t I have a computer -file copy; than ks VERSIGHT Document ID: 0.7.18648.5470 18-1620-000156 18-1620-000157 Document ID: 01186485470 November 2, 2001 Dear Chairman Horn: I have learned that on November 6 the House Subcommittee on Government Efficiency," Financial Management, and Intergovernmental Relations will hold its previously postponed hearing" on the Presidential Records Act. In advance of that hearing, we wanted to inform you of a recent" development. President Bush yesterday signed an executive order implementing section 2204(c) of the" Presidential Records Act, the provision of the Act that states: “Nothing in this Act shall be construed" to confirm, limit, or expand any constitutionally-based privilege which may be available to an" incumbent or former President.” That statutory provision is necessary, of course, to the Act’s! constitutionality, for the Supreme Court held in 1977 that both former and current Presidents retain" the constitutional right to assert privileges over the records of a former President, including after" expiration of a 12-year period of presumptive non-disclosure. See Nixon v. Administrator of General Services, 433 U.S. 425 (1977). Furthermore, Congress contemplated that such constitutional" privileges would be available and could be asserted, even after expiration of the 12-year period: At" the time the Act was enacted, Senator Percy stated that if a Pres ident “believe[d] that the 12-year" closure period does not suffice, that President could object to the release of some document in the" 13th or 15th or 20th year.” Cong. Record S36844 (Oct. 13, 1978). The Act and its legislative history, as well as the Supreme Court’s decision in Nixon v. Administrator of General Services, obviously necessitate procedures for former and current" Presidents to review Presidential records of a former President and, if they choose, to assert" constitutional privileges. President Bush’s order responds to that need by establishing clear and! sensible procedures for former and current Presidents to exercise their rights and responsibilities in a" timely manner. The order replaces an earlier executive order (Executive Order 12667 of January 18," 1989) that had established some skeletal procedures for assertion of privileges over Presidential" records and had provided that the current President would have the primary responsibility for" asserting privileges over the records of a former President. President Bush’s new order supercedes! that prior order both to set forth clearer procedures and to establish, consistent with the Supreme" Court’s decision in Nixon v. Administrator of General Services and with what the Administration" believes to be sound policy and procedure, that former Presidents are to have the primary" responsibility for asserting privileges over their records. Indeed, section 4 ofPresident Bush’s order,! which is its most critical component, provides that the current President will defer, absent" compelling circumstances, to the decisions of the former President regarding the former President’s! records. In sum, therefore, the new executive order grants the current President less relative" authority over the records of a former President than did the prior executive order. We believe this" point is critical to a proper understanding of the executive order, and has been largely overlooked in" public commentary thus far. AMERICAN pVERSIGHT Document ID: 0.7.18648.5470-000001 18-1620-000158 The Honorable Steve Horn November 2, 2001 Page Two In addition, President Bush’s order does not purport to guide former Presidents as to their" privilege assertions. Section 9 of the order provides that the order does not purport to indicate" “whether and under what circumstances a former President should assert or waive any privilege.”! Indeed, it would have been improper, if not illegal, for President Bush to attempt to limit or override" the constitutional rights and privileges of former Presidents -- rights that have been guaranteed by the" Supreme Court. But it also bears mention that Section 2 of the order refers to the historical practice" before enactment of the Presidential Records Act by which former Presidents, over time, have" released a vast majority of their records even though under no legal obligation to do so. We" anticipate that this historical practice will continue. At a minimum, contrary to the claims of some" commentators, there is no logical basis for assuming that former Presidents will exercise their" constitutional and statutory authority to seek withholding of privileged records more aggressively" than earlier Presidents -- from President Washington to President Carter -- exercised their plenary" and far broader authority to withhold all records. Finally, you should know that the Administration consulted extensively with the National" Archives and Records Administration, the Department of Justice, and former Presidents’! representatives before President Bush issued this order. We benefited greatly from that consultation." Please do not hesitate to contact me if you have any questions about the order. Sincerely, Alberto R. Gonzales Counsel to the President The Honorable Steve Horn United States House of Representatives W ashington, DC 20515 cc: The Honorable Janice Schakowsky" AMERICAN pVERSIGHT Document ID: 0.7.18648.5470-000001 18-1620-000159 Whelan, M Edward III From: Sent: To: Subject: Attachments: Whelan, M Edward III Monday, November 05, 2001 10:24 AM 'Kavanaugh, Brett' PRA redraft pra testimony.doc Brett, attached is a slight redraft. A few comments: 1. . (b) (5) ,( . I have made revisions in several places t t. 2. On your comment on my phrasing. ": (b) (5) (b) (5) ( (b) (5) , I prefer( (b) (5) r. 3. . (b) (5) . 4. I've added a sentence at the end of the next-to-last paragraph. 5. If you hav (b) (5) handy, could you fax it to me? t. I want to kno (b) (5) ( I've left a message with Maggs. VERSIGHT Document ID: 0.7.18648.5469 18-1620-000160 Whelan, M Edward III From: Sent: To: Subject: Whelan, M Edward III Monday, November 05, 2001 3:31 PM 'Kavanaugh, Brett' PRA question nt he (b) (5) "? y. . VERSIGHT Document ID: 0.7.18648.5473 at er nt Any other thoughts? 18-1620-000161 Brett_M._Kavanaugh@who.eop.gov From: Brett_M._Kavanaugh@ wh o.eop.gov Sent : Monday, November OS, 2001 3:42 PM To: Whe lan , M Edward Ill Subject : Re: PRA quest ion Attachments : pic02683.pcx (b) (5) (b) (5) (Emb edded image moved "Whe lan , M Edward Ill" to file: 11/05/2001 03:30:45 PM pic02683.pcx) Record Type: Record To: Brett M. Kavanaugh/WHO/EOP@EOP cc: Subject: PRA quest ion duplicate VERSIGHT Document ID: 0.7.18648.5480 18-1620-000162 18-1620-000163 Document ID: 01186485480 18-1620-000164 Document ID: O.7.18648.5480-000001 Whelan, M Edward III From: Sent: To: Subject: Whelan, M Edward III Monday, November 05, 2001 4:27 PM 'Kavanaugh, Brett' FW: Tomorrow's hearing on the Presidential Records Act, Executive Order FYI -----Original Message----From: Burton, Faith Sent: Monday, November 05, 2001 4:26 PM To: Whelan, M Edward III; Colborn, Paul P; Thorsen, Carl Subject: Tomorrow's hearing on the Presidential Records Act, Executive Order Henry Ray of the Horn Subcommittee just got back to me about this hearing, which he expects will be especially well attended because of the "controversial" Executive Order. He expects that, in addition to Subcommittee Chairman Horn, RMM Schakowsky, Members Ose and Maloney will attend, as well as Chairman Burton and Full Committee RMM Waxman will attend, reportedly because they are concerned that the new EO is inconsistent with the PRA and possibly unconstitutional. The panels are planned as follows: I. Archivist Carlin and Anna Nelson, as historian, to explain the EO and provide a policy perspective, respectively; II. AU political science professor Mark Roselle; Ed; Peter Shane of Univ. of Pittsburgh law school and Carnegie Mellon, and possibly Scott Nelson, of the Public Citizen Litigation Group. This panel is expected to talk about the legal issues presented by the EO, although he mentioned that Roselle could be moved to the first panel. Henry expects that Ed will likely get lots of questions about whether the EO is constitutional and consistent with the PRA. Ed and Paul (b) (5) t? They would like to get the prepared statement as soon as it's available. I mentioned to Henry that this line-up is inconsistent with the usual protocol that all Administration witnesses appear on the first panel, but he thinks this makes more sense. (Actually, protocol is that Admin. witnesses appear on the first panel and only with other Admin. witnesses, although there have been exceptions in special situations). Please let me kno (b) (5) . Faith VERSIGHT Document ID: 0.7.18648.5478 18-1620-000165 Brett_M._Kavanaugh@who.eop.gov From: Brett_M._Kavanaugh@ who.eop.gov Sent : Tuesday , November 06, 2001 8:06 AM To: Whe lan , M Edward Ill Subject : Re: PRA quest ion Attachments : pic28589.pcx (b) (5) (Embedded image moved "Whe lan , M Edward Ill" to file: 11/06/2001 07:58:17 AM pic28589.pcx) Record Type: Record To: Brett M. Kavanaugh/WHO/EOP@EOP cc: Subject: PRA quest ion (b) (5) (b) (5) VERSIGHT Document ID: 0.7.18648.5486 18-1620-000166 18-1620-000167 Document ID: O.7.18648.5486-000001 Brett M._Kavanaugh@who.eop.gov From: Brett_ M._ Kavanaugh@who.eo p.gov Sent: Tuesday, November 06, 200 1 8:07 AM To: Whelan , M Edward Ill Attachments: Letter to Horn final.doc Oo you have Judge 's lett er t o Horn? That probab ly should be part of th e packa ge OOJ OLA se nds up to Hill an d publicly releases . We will FAXover a signed copy if you agree with that assess ment (letter is attach ed below). Have your ass istant call Elizab eth Camp at 456-2632 to ge t the signed copy FAXed over. {See attach ed file: Letter to Horn final.doc) VERSIGHT Document ID: 0.7.18648.5488 18-1620-000168 November 2, 2001 Dear Chairman Horn: I have learned that on November 6 the House Subcommittee on Government Efficiency," Financial Management, and Intergovernmental Relations will hold its previously postponed hearing" on the Presidential Records Act. In advance of that hearing, we wanted to inform you of a recent" development. President Bush yesterday signed an executive order implementing section 2204(c) of the" Presidential Records Act, the provision of the Act that states: “Nothing in this Act shall be construed" to confirm, limit, or expand any constitutionally-based privilege which may be available to an" incumbent or former President.” That statutory provision is necessary, of course, to the Act’s! constitutionality, for the Supreme Court held in 1977 that both former and current Presidents retain" the constitutional right to assert privileges over the records of a former President, including after" expiration of a 12-year period of presumptive non-disclosure. See Nixon v. Administrator of General Services, 433 U.S. 425 (1977). Furthermore, Congress contemplated that such constitutional" privileges would be available and could be asserted, even after expiration of the 12-year period: At" the time the Act was enacted, Senator Percy stated that if a Pres ident “believe[d] that the 12-year" closure period does not suffice, that President could object to the release of some document in the" 13th or 15th or 20th year.” Cong. Record S36844 (Oct. 13, 1978). The Act and its legislative history, as well as the Supreme Court’s decision in Nixon v. Administrator of General Services, obviously necessitate procedures for former and current" Presidents to review Presidential records of a former President and, if they choose, to assert" constitutional privileges. President Bush’s order responds to that need by establishing clear and! sensible procedures for former and current Presidents to exercise their rights and responsibilities in a" timely manner. The order replaces an earlier executive order (Executive Order 12667 of January 18," 1989) that had established some skeletal procedures for assertion of privileges over Presidential" records and had provided that the current President would have the primary responsibility for" asserting privileges over the records of a former President. President Bush’s new order supercedes! that prior order both to set forth clearer procedures and to establish, consistent with the Supreme" Court’s decision in Nixon v. Administrator of General Services and with what the Administration" believes to be sound policy and procedure, that former Presidents are to have the primary" responsibility for asserting privileges over their records. Indeed, section 4 ofPresident Bush’s order,! which is its most critical component, provides that the current President will defer, absent" compelling circumstances, to the decisions of the former President regarding the former President’s! records. In sum, therefore, the new executive order grants the current President less relative" authority over the records of a former President than did the prior executive order. We believe this" point is critical to a proper understanding of the executive order, and has been largely overlooked in" public commentary thus far. AMERICAN pVERSIGHT Document ID: 0.7.18648.5488-000001 18-1620-000169 The Honorable Steve Horn November 2, 2001 Page Two In addition, President Bush’s order does not purport to guide former Presidents as to their" privilege assertions. Section 9 of the order provides that the order does not purport to indicate" “whether and under what circumstances a former President should assert or waive any privilege.”! Indeed, it would have been improper, if not illegal, for President Bush to attempt to limit or override" the constitutional rights and privileges of former Presidents -- rights that have been guaranteed by the" Supreme Court. But it also bears mention that Section 2 of the order refers to the historical practice" before enactment of the Presidential Records Act by which former Presidents, over time, have" released a vast majority of their records even though under no legal obligation to do so. We" anticipate that this historical practice will continue. At a minimum, contrary to the claims of some" commentators, there is no logical basis for assuming that former Presidents will exercise their" constitutional and statutory authority to seek withholding of privileged records more aggressively" than earlier Presidents -- from President Washington to President Carter -- exercised their plenary" and far broader authority to withhold all records. Finally, you should know that the Administration consulted extensively with the National" Archives and Records Administration, the Department of Justice, and former Presidents’! representatives before President Bush issued this order. We benefited greatly from that consultation." Please do not hesitate to contact me if you have any questions about the order. Sincerely, Alberto R. Gonzales Counsel to the President The Honorable Steve Horn United States House of Representatives W ashington, DC 20515 cc: The Honorable Janice Schakowsky" AMERICAN pVERSIGHT Document ID: 0.7.18648.5488-000001 18-1620-000170 Whelan, M Edward III From: Sent: To: Subject: Whelan, M Edward III Tuesday, November 06, 2001 9:18 AM 'Kavanaugh, Brett' FW: protocol -----Original Message----From: Burton, Faith Sent: Tuesday, November 06, 2001 9:16 AM To: Thorsen, Carl; Whelan, M Edward III Subject: RE: protocol Good. The current one panel plan will still leave Ed in the fray with non-governmental witnesses; Ray just reported that they think Brett is OK with the current plan. FB Henry -----Original Message----From: Thorsen, Carl Sent: Tuesday, November 06, 2001 9:13 AM To: Burton, Faith; Whelan, M Edward III Subject: RE: protocol Brett is on the phone with Russell George right now. I'm going to call him directly. Will get back asap. -----Original Message----From: Burton, Faith Sent: Tuesday, November 06, 2001 8:59 AM To: Whelan, M Edward III; Thorsen, Carl Subject: RE: protocol Ed, I agree with your sens (b) (5) but WH participation in this issue will be important. r; I'm happy to pursue this with the Committee I'll call Kirsten. FB -----Original Message----From: Whelan, M Edward III Sent: Tuesday, November 06, 2001 7:27 AM To: Burton, Faith; Thorsen, Carl Subject: protocol Any further word on the panel structure? The White House (per Kavanaugh) as (b) (5) . The legislative contact at the White House is Kirsten Chadwick. VERSIGHT Document ID: 0.7.18648.5487 18-1620-000171 Whelan, M Edward III From: Sent: To: Subject: 1. Whelan, M Edward III Wednesday, November 07, 2001 9:37 AM 'Kavanaugh, Brett' postscript Any reactions to the Post story? Would it be worthwhile for someone t (b) (5) ? 2. Gary Stern commented after the hearing that he think . VERSIGHT Document ID: 0.7.18648.5492 (b) (5) 18-1620-000172 Brett M._Kavanaugh@who.eop.gov From: Brett_ M._ Kavanau gh@who.eo p.gov Sent: Friday, November 09, 200 110 :15 AM To: Whelan , M Edward Ill Cc: Subject: Colborn, Paul P Attachments: pic23275.pcx Re : Ose ques tions (b) (5) (b) (5) . for #2, make sure to cite (b) (5) ,. will you -draft up ans wers ? let me know wha t you want me to do an d when. thanks ag ain. {Embedded image moved "Whelan, M Edward Ill" to file : 11/ 09/200 11 0:08 :30 AM pic23275.pcx) Record Type : Record To: Brett M. Kavanau gh/ WHO/ EOP cc: "Colborn, Paul P" {Receipt Notification Req ues ted ) {1PM Return Req ues ted ) Subject: Ose questions I received follow-up ques tions from Ose and am se nding them to you. Deadline for res pon se is 11/ 30. VERSIGHT Document ID: 0.7.18648.5497 18-1620-000173 18-1620-000174 Document ID: O.7.18648.5497-000001 Whelan, M Edward III From: Sent: To: Subject: Whelan, M Edward III Friday, November 09, 2001 5:36 PM 'Kavanaugh, Brett' Clinton Just in case you haven't already seen it: Ex-President Clinton Resigns From Supreme Court Bar By James Vicini WASHINGTON (Reuters) - Former President Bill Clinton, facing the possibility of being barred from practicing law before the U.S. Supreme Court (news - web sites) because of the Monica Lewinsky scandal, has resigned instead, his lawyer said on Friday. ``Former President Clinton (news - web sites) hereby respectfully requests to resign from the bar of this court,'' his lawyer, David Kendall, said in a two-page letter to the high court's clerk. Kendall did not elaborate on why Clinton decided to resign. Clinton's resignation from the Supreme Court bar will have little practical impact. Clinton has not practiced before the Supreme Court and was not expected to argue any cases in the future. On Oct. 1, the Supreme Court suspended Clinton from practicing before the court and gave him 40 days to show why he should not be disbarred. On Jan. 19, the day before leaving office, Clinton admitted giving false, evasive statements about his relationship with Lewinsky, the former< White House intern. As part of a deal with the independent counsel, Clinton accepted a five-year suspension of his license to practice law in Arkansas and a $25,000 fine. The Arkansas suspension triggered the high court case entitled, ``In the matter of discipline of Bill Clinton.'' Kendall had said in October that Clinton would fight disbarment. In the letter filed on Friday, Kendall said Clinton had been a member in ``good standing'' of the Arkansas bar for more than 25 years and had never had public or private professional discipline imposed by any bar. He said Clinton cooperated fully with the Arkansas Supreme Court Committee on Professional Conduct, furnishing all requested information in a timely manner. Kendall said Clinton's conduct did not relate to a criminal conviction or to the practice of law. It occurred as a private party in a civil VERSIGHT Document ID: 0.7.18648.5498 18-1620-000175 proceeding, he said. The suspension stemmed from Clinton's answers in response to questions about his relationship with Lewinsky during questioning by lawyers for Paula Jones, who had filed a sexual harassment suit against Clinton. Kendall said Clinton agreed to the suspension and fine ``to avoid the burden of litigation for all parties, to achieve an expeditious and definite resolution and in acknowledgment that his actions merited censure.'' Kendall cited statistics showing that only four of the 570 aution, but did not impose suspension or disbarment, Kendall said. AMERICAN pVERSIGHT Document ID: 0.7.18648.5498 18-1620-000176 Whelan, M Edward III From: Sent: To: Cc: Subject: Whelan, M Edward III Wednesday, November 14, 2001 9:26 AM 'Kavanaugh, Brett' Colborn, Paul P PRA questions FYI: I received, and am sending you, two more sets of questions from Chairman Horn. The requested response date is Nov. 20. We'll try to have draft responses for your review by the end of the week. VERSIGHT Document ID: 0.7.18648.5499 18-1620-000177 Whelan, M Edward III From: Sent: To: Cc: Subject: Whelan, M Edward III Thursday, November 15, 2001 4:56 PM 'Kavanaugh, Brett' Colborn, Paul P RE: Horn questions Please also take a good look at 63. -----Original Message----From: Whelan, M Edward III Sent: Wednesday, November 14, 2001 2:55 PM To: 'Kavanaugh, Brett' Cc: Colborn, Paul P Subject: Horn questions The questions from Chairman Horn that I'd ask you to take a first cut at are 1-4, 14-15, 58-59, and 69. Thanks.% VERSIGHT Document ID: 0.7.18648.5502 18-1620-000178 Colborn, Paul P From: Sent: To: Cc: Subject: Colborn, Paul P Wednesday, November 28, 2001 9:31 AM 'Brett_M._Kavanaugh@who.eop.gov' Whelan, M Edward III Letter to Congress explaining why Gov. Ridge won't testify Brett: I'd be happy to draft the letter you requested. letter you prepared earlier this year? Thanks. -- Paul cc: Ed VERSIGHT Document ID: 0.7.18648.5528 Could you email me the latest draft of the generic 18-1620-000179 Colborn, Paul P From: Sent: To: Cc: Subject: Attachments: Colborn, Paul P Wednesday, December 05, 2001 2:48 PM 'Brett_M._Kavanaugh@who.eop.gov' Whelan, M Edward III; Bybee, Jay FW: Assertion of executive privilege on prosecutorial decisionmaking documents2 conrad.potus4.wpd It has come to my attention that I neglected to attach the attachment. Here it is. -----Original Message----From: Colborn, Paul P Sent: Tuesday, December 04, 2001 5:01 PM To: 'Brett_M._Kavanaugh@who.eop.gov' Cc: Whelan, M Edward III; Bybee, Jay Subject: Assertion of executive privilege on prosecutorial decisionmaking documents - Brett: Attached is the current draft of the AG letter to the President. As we discussed, I'm running the traps here to make certain tha f (b) (5) . But all indications so far are tha (b) (5) l. As we also discussed, I'll prepare a log of the documents. I'll try to do that tomorrow. -- Paul cc: Jay, Ed VERSIGHT Document ID: 0.7.18648.5542 18-1620-000180 Brett M._Kavanaugh@who.eop.gov From: Brett_ M._ Kavanau gh@who.eo p.gov Sent: Monday, December 10, 200 1 9 :53 AM To: Whelan , M Edward Ill Cc: Subject: Colborn, Pau l P Memo (b) (5) (b) (5) VERSIGHT Document ID: 0.7.18648.5546 18-1620-000181 Colborn, Paul P From: Sent: To: Cc: Subject: Attachments: Colborn, Paul P Monday, December 10, 2001 1:51 PM 'Brett_M._Kavanaugh@who.eop.gov' Bybee, Jay; Whelan, M Edward III executive privilege claim conrad.potus4.wpd; conrad.documentlist.wpd Brett, fyi, we've submitted the letter to the AG's office for his signature and expect to get it back today some time. Attached are the latest versions of the letter and list of documents. -- Paul cc: Jay, Ed VERSIGHT Document ID: 0.7.18648.5552 18-1620-000182 Colborn, Paul P From: Sent: To: Cc: Subject: Colborn, Paul P Monday, December 10, 2001 5:09 PM 'Brett_M._Kavanaugh@who.eop.gov' Bybee, Jay; Whelan, M Edward III AG letter to President on executive privilege claim Brett: The AG has signed the letter and it is being faxed to you now. How would you like me to deliver the original? And when can we expect to get a presidential decision? The hearing is currently scheduled for Thursday morning. -- Paul cc: Jay, Ed VERSIGHT Document ID: 0.7.18648.5550 18-1620-000183 Whelan, M Edward III From: Sent: To: Subject: Whelan, M Edward III Monday, December 10, 2001 5:24 PM 'Kavanaugh, Brett' OLC applicant At your convenience, I would like to speak to you regardin VERSIGHT Document ID: 0.7.18648.5551 (b) (6) f. 18-1620-000184 Colborn, Paul P From: Sent: To: Cc: Subject: Attachments: Brett: Colborn, Paul P Monday, December 10, 2001 5:35 PM 'Brett_M._Kavanaugh@who.eop.gov' Bybee, Jay; Whelan, M Edward III FW: Current draft of the prepared statement for Thursday. ep.statement.wpd Any comments on the attached? -- Paul -----Original Message----From: Burton, Faith Sent: Monday, December 10, 2001 5:28 PM To: Horowitz, Michael-CRM; Bunnell, Steve; Colborn, Paul P Cc: Rybicki, James E Subject: Current draft of the prepared statement for Thursday. VERSIGHT Document ID: 0.7.18648.5554 18-1620-000185 Colborn, Paul P From: Sent: To: Cc: Subject: Attachments: Colborn, Paul P Tuesday, December 11, 2001 9:19 AM 'Brett_M._Kavanaugh@who.eop.gov' Bybee, Jay; Whelan, M Edward III executive privilege claim conrad.documentlist.wpd Brett, per your request I'm faxing you right now the final document list. you yesterday. It's also attached here. It's the same as the one I emailed You'll notice at the end of the draft testimony I forwarded you yesterday that there is a paragraph about the President's assertion of privilege. Legislative Affairs here has requested th f (b) (5) - . Although an alternative o recommen know your thoughts about this. (b) (5) (b) (5) is also a possibility, I t. Let me -- Paul cc: Jay, Ed VERSIGHT Document ID: 0.7.18648.5557 18-1620-000186 Brett _M._ Kavanaugh@ w ho.eop.go v Fro m: Brett_M._Kavanaugh@ who.eop.gov Sent : Tuesday, December 11, 200112:44 To: Colborn, Pau l P Cc: Bybee , Jay; Whe lan , M Edward Ill Subjec t: RE: Execut ive privilege claim Attachments : burton memo from president.doc; PM burton subpoena ARG memo.doc ; pic17911.doc (b) (5) ? (Embedded image moved "Colborn, Pau l P" to file: 12/11/200112:36:36 PM pic17911.pcx) Record Type: Record To: Brett M. Kavanaugh/WHO/EOP@EOP cc: "Bybee , Jay" (Rece ipt Notification Requested ), "Whelan, M Edward Ill" (Rece ipt Notification Requested) Subjec t : RE: Execut ive privilege cla im Brett : I have rev ised your drafts to conform them to changes I made to the AG letter from September. (b) (5) The changes reflect (b) (5) (b) (5) Also , I ema iled you yesterday of Legis lat ive Affa irs ' preference for (b) (5) · I've now learned that their preference has become , Let's talk about this wh en you have a moment. You migh t want to discuss it directly (b) (5) with Dan Bryant or Carl Thorsen. This quest ion may affect how you word VERSIGHT Document ID: 0.7.18648.5578 18-1620-000187 - Pau l cc: Jay, Ed -- - Origina l Message From: Brett_M._Kavana ugh@who.eop .gov [mailto:Brett_M._Kavanaug h@who.eo p.gov) Sent : Tuesda y, December 11, 200111 :52 AM To: Colborn, Paul P Cc: Bybee , Jay; Whe lan, M Edward Ill Subject: Executive privilege claim Please review as soo n as poss ible the following draft memos from Judge Gonzales to t he Pres iden t and from the Pres ide nt to th e Attorney Genera l. Than ks. (See attached file: burt on memo from pres iden t.doc)(See attach ed file : burton subpoena ARG memo .doc) VERSIGHT Document ID: 0.7.18648.5578 18-1620-000188 18-1620-000189 Document ID: Rachel_L._Brand@who.eop.gov From: Rache l_L._Brand@who.eop.gov Sent: Wednesday, December 12, 2001 10:32 AM To: Whe lan , M Edward Ill; Jan_E ._Williams@who.eop.gov Cc: /DDV=H._ Christopher_ Bartolomucci@ who.eop.gov / DDT= RFC822/O= INETGW/P=GOV +DOJ/ A=TELEMAIL/C=US/; Bradford_A._Berenson@who.eop.gov ; Robert_ W._ Cobb@who.eop.gov; Courtney _S._Elwood@ who.eop.gov; Noe l_J._ Francisco@who.eop.gov ; Brett_M._Kavanaugh@who.eop.gov; Helgard_ C._ Wa lker@who.eop.gov; Rache l_L._Brand@who.eop.gov; Kyle_$ampson@who.eop.gov; Timothy_E._F lanigan@who.eop.gov;Alberto_R._Gonza les@who.eop.gov Subject: Chicago Tribune ask s for Wilson to step down/LA Times profiles Berry attl.htm; ATTACHMENT.TXT;pic16199.htm Attachments: ------ Forwa rded by Rache l L. Brand/W HO/ EOP on 12/12/200110:31 Anne Womack 12/12/200110:12:50 AM ------ AM Record Type: Record To: Rache l L. Brand/W HO/EOP@EOP cc: Subject: Chicago Tribune asks for Wilson to step down/LA Times profiles Berry Chi Trib is good , LATis tota l in the bag for Berry... -----Forwarded by Anne Womack/W HO/EOP on 12/12/200110:12 AM ------- (Embedded image moved KArri aga@ao l.com to file: 12/12/2001 09:37:23 AM pic16199 .pcx) VERSIGHT Document ID: 0.7.18648.5597 18-1620-000190 Record Type: Record To: See th e distribut ion list at th e bottom of this message cc: See th e d istribut ion list at th e bott om of this message Subject: Chicago Tribune asks f:or Wilson to step down/LA Times prof iles Berry Copyright 2001 Chicago Tribune Company Chicago Tribune Decem ber 12, 2001 Wednesday , NORTH SPORTSFINALEDITION SECTION: Editorial; Pg. 30; ZONE: N LENGTH: 353 words HEADLINE: Berry versus Bush BODY: Things hav en 't been very civil of late at th e U. S. Commiss ion on Civil Right s. The Bush adm inist ra tion wants t o re plac e Commiss ioner Victoria Wilson with Peter Kirsa n ow, a Cleve land labor lawyer. The adm inistra tion sa ys Wilson 's term is up. Comm iss ion Chairma n Mary Frances Berry sa ys it is not. Think this is a gentee l dispu te? Think aga in. Last Frida y, Berry dared th e Bush team to send in federa l marsha ls to sea t Kirsano w. Instead of send ing in th e marsha ls, th e adm inistra tion se nt Just ice Department lawyers t o file su it. The adm inistra tion is ask ing th e federa l court to remo ve Wilson so that Kirsano w can rep lace her. Wilson wa s appo inted by Pres iden t Bill Clinton to fill in for Judge A. Leon Higginbotham , who d ie-d in December 1998. The adm inistra tion quite reasona bly figured that Wilson would leave when Higginbotham 's term ended on Nov. 29. Board members always have ha d uniform sta ggered terms . Four are appo inted by th e pres iden t and four by Congress. Wrong , sa ys Berry. In a littl e-pub licized move , Congress in October 1994 chan ged th e ter m of office of eac h comm iss ion member to six years , eliminat ing provisions that allowed for inter im or act ing terms. In a lett er , Reps. Joh n Conyers , Jr., (D.-Mich.} and Jerro ld Nad ler (D.-N.Y.},who he lped draft th e change , sa y th ey wanted to upho ld th e independence of th e body from th e whims of any part icular pres iden t or party. Berry sa ys th at' s her concern , too. But her reso luteness happens to be blocking a Repu blican vote that would evenly sp lit the pane l. With th e pane l in a cont inuing dispu te with Florida Gov. Jeb Bush over under coun ts of th e state's black voters in th e 2000 p res iden tial election, it is ha rd to be lieve this feud is free of part isans hip. Nor is thi s an "inde penden t" body. It is a body appo inted by th e pres iden t and Congress. PVERSIGHT Document ID: 0.7.18648.5597 18-1620-000191 The law may now be silen t on success ion, but th e sp irit of the law sugges ts its time for Wilson to st ep as ide. Chairman Berry's cred ibility is at stak e. The comm iss ion can be a valuab le watch dog in he lping Americans t o ge t along , but it shou ld learn t o ge t along with the Whit e House . Copyright 2001 / Los Ange les Times Los Ange les Times Decem ber 12, 2001 Wed nesda y Home Edition SECTION: Part A; Part 1; Page 26; Nationa l Desk LENGTH: 953 words HEADLINE:The Wo rld & Nation; Civil Rights Chief Shows Equality in Bedeviling Critics BYLINE:JOHANNANEUMAN, TIMES STAFFWRITER DATELINE: WASHINGTON BODY: Most politicians sit up st raighter when the White House call s-an unseen but percept ible sa lute to power. Mary Frances Berry is not most politicians . Outspoken , pass iona te, tena cious, she is at the moment fightin g Pres iden t Bush's de cision to se lec t a new member of the U.S. Commiss ion on Civil Rights, which she cha irs. In fact , she tol d Whit e House Counse l Alberto R. Gonzales that if he wa nted t o sea t a new comm iss ioner , he ha d better send th e U.S. marsha ls. The ca se is now in court , but the controversy ha s revived interest in th e 63-year -old Berry, who ha s se rved on the comm iss ion for nearly hal f its 44-year history and ha s angered eve ry adm inistration, Repub lican and Demo crat, since she came on boa rd. Pres iden t Carter appo inted her in 1980, an d she promptly criticized him for repa triatin g Haitia n refugees. Pres iden t Reagan t ried to fire her, but she took the dism issa l to court--and won. Pres iden t Clinton too k a lashing from her when he with dre w his nom inat ion of Lani Guinier to be ass istant attorney ge nera l for civil rights. And Bush sa w her accuse his brother, Florida Gov. Jeb Bush, of a patt ern of "injustice, inept itude and ineff icienc y" that d isenfr anchi sed minority voters in the 2000 election. Critics sa y her tak e·-no-prisoners style (the online pub licat ion Salon.com has called her "a vitriolic braw ler") dilutes her effec tiveness and that of the comm iss ion, which has a $9-million annua l budge t r and 80 emp loyees but no enforcemen t powers. vcn ..:nu Document ID: 0.7.18648.5597 1 18-1620-000192 The Nat iona l Journa l's Stuart Taylor sa ys she runs the commiss ion "as a propa ganda mill for th e victimology wing of the Democra tic Party." Berry's fellow commiss ioner Abiga il Therns trom thinks that the commiss ion's repu tati on is "in the basement. " But Berry, a historian and writer who was born in segrega tionist Nashville and survived an ea rly childhood that she sa ys was worthy of Charles Dickens , de lights in the spec ter of being a proud black woma n ta lking truth to power. "It never occurs to me to worry about whether a pres iden t disagrees ," she sa id in an interview. "I wish I could be more diploma tic, more measured. I'm not trying to figure out every da y how to be a lightnin g rod. It's just that I hav e th e courage of my convictions." If she is rough on opponen ts, some might argue she ha s earned the privilege . Placed in an orphana ge by her mother after her father deserted the family, she sa ys her ea rlies t memory is hear ing her brother wail for more food. She was 4 years old when her mother re claimed the children , raising th em alone while working as a beaut ician. Berry dedu ced that t o ge t what you wanted in life, you ha d to fight. She credits tea chers at every level for encouraging her to ach ieve, espe cially one high school history tea cher, Minerva Hawkins, who was a mother figure and friend until she died last year . "She used to sa y that I was a diamond in the rough, and she was still trying to rub off my rough edges ," Berry sa id. Perhap s as a res ult, there are bach elor's and mast er's degrees from Howard Univers ity and a doctorate in history and a law degree from the Univers ity of Michiga n. Currently th e Geraldine R. Sega l Professor of American Social Thought at the Univers ity of Penns ylvania, Berry is a former chanc ellor at the Univers ity of Colorado at Boulder, where she was also a professor of history an d law. In her academ ic writings , as in her political app ointments (she worked as an educa tion official before be ing named t o th e commiss ion), Berry is abo ve all a contrar ian. It seems it' s not just pres iden ts she enjoys skewering. She was th e lead author in a 1992 book, "Long Memo ry: The Black Experien ce in America," which argued that for blacks in the 1960s, "the threa t of ge nocide was rea l. It was roughly compara ble to the threa t faced by the Jews in the 1930s. " She is proudes t of a book called "Why the ERAFailed ," which criticized the feminist movement for a flawed political stra teg y. "It's all abou t how the wome n' s movement was outfoxed by {conserva tive) Phyllis Schlafly," she sa id. She wriggles out of labe ls, sa ying she is no Democra t, not necessar ily a libera l-a thorn by an y other name. And she enraged man y listeners of Berkeley's KPFA-FM when , as Pacifica Founda tion chairwoman, she initiated management chan ges that she sa id were aimed at wres ting control of the station from "white male hippies over 50. " One broadcas ter was arrested on th e air, accu sed of violat ing her ban on discuss ing the cont rovers y on the air. The Gener al Accoun ting Office, in a 1997 aud it, criticized the commiss ion as "an agency in disarra y, with limited awareness how its resources are used. " Berry's defe nders sa id the GAO was doing the hi rldin1:1of RPnuh lir..~n onnnnPn tc:.of ;::1ff irm;::1 tivP ~r.tinn. Y ._, l'-1 '-Al Document ID: 0.7.18648.5597 I I 18-1620-000193 ... ....... .. '6 ...., '''- t""'-" ... ..... ..... ' ....,.,,., ..... ...... , .._, ...., ... , '" , . , ........ .......... ........ , . Her defense is Arthur S. Flemm ing. One of the grand old men of Republican politics , who served pres iden ts from He,rbe rt Hoover t o Richard Nixon, Flemm ing was there at the creat ion, wh en Pres ide nt Eisenho wer de cided to crea te the commiss ion as a means of defus ing the civil rights movement that was simmer ing across th e South. When Carter nam ed Berry to the commiss ion in 1980 , Flemm ing took her under his wing. He would tak e her to brea kfa st at the hushed Hay-Adams Hotel and sc hool her on the ways , big and sma ll, of Wash ington power_ Mos tly, he tol d her ab out the commiss ion's history, about Eisen hower 's tabl epound ing ins istence that it get the facts (which is why the pane l has su bpoena power) and that it ma inta in its independence. "No White House , no Justice Depa rtmen t, tells us what to do," Berry sa id. "When th e da y comes and I'm no longer on the comm iss ion, I'll know I did what Arthur Fle mming taug ht me: to protect the integr ity of the commiss ion." GRAPHIC: PHOTO: "I wish I could be more diplomatic .... It's just that I have the courage of my convictions ," sa ys Mary Frances Berry. PHOTOGRAPHER: Asso ciat ed Press PVERSIGHT Document ID: 0.7.18648.5597 18-1620-000194 Copyr ight 2001 Ch icag o T'ribune Com pany Ch icago Tribun e Deoembg 12 , 2001 Wedn•esdsy, NORT H SPORTS Fl!,fAL EDITI ON SECTIOH: Ed it orial ; Pg . 30: ZO NE: N LEHGTH: 353 word s HEADLIHE: Berry v ersus Bush BODY: T hings hav en't been very ci vil of la te s t the U. S. Commission on Civil Rights. T he Bush adm inistration w ants to replace Comm issioner V id Ofia Wil son w it h Pe ter Kirsanow. a C leve la nd ls bof lawyer. T he ad minis trati on says Wilson•s term is up. Comm ission Cha irmen Mery Frances Berry says it is not. T hink this is a g enteel d isput e? T hink again. Last Friday, Bary dar ed the Bush tea m to se:nd in fed eral marsha ls to se.at Kif>8now. lnsiea d o l sen-ding in the marsha ls, the ad ministr ati on sent Jusi ioe Oeparlmeni lawyas to file suit. T he ad ministr ati on is sski ng the fed eral court to remov e Wil son so that K irssnow can replace, her. Wil son w as appo inted by President Bill C li nton to fill in for Judg e A Leon Higg inbotham, w ho d ied in Qe.cembef 1998. T he admi nistrati on qu ite reasona bly fi gured th.at Wil son wou ld lea ve wh en Higg inbotham ·s term ended on Nov. 29. Board membas have had un if orm staggered terms. Four are ap po inted by the pcesident end four by Congr ess. alw ays Wrong, says Berry. In a li ttle- pub licize d mov e. Congr ess in Odoba 1994 changed the term o f o ffice of ea ch comm ission me mbe, to si x y ears, eli minat ing pco v isions the I all owed for inter im°' acting tem1S.In a le ttei. Reps. John Conyers, Jr .. {D.-Mich .) and Jerrold Na dlei {D.-N.Y.), w ho hel ped d raft the change , say they w anted to upho ld the ind epend ence o f the body from the w hims o f any part icular pt"eside_nt °' party. Betry says th.st"s her ooncan, too . But hei resoluten ess happ ens to be blocking a Republican vot e th.al wo uld ev enly spli t the psne l. With the panel in a cont inu ing disput e w ith Florida Gov. J eb Bush over undeecsllr-an unsee n but percept ible salute to power. Mary Frances Beny is not most po liticia ns. Ou tspoken, passion.ate, tenaci ou s, she is at the mom ent fi ght ing President Bush•s deci sion to select e new memb er o f the U.S. Commission on one, , he h-sd Civ il Rights , w hich she ch.airs. In fact, she told Wh ite House Coun sel A lberto R. Gonzales that if he w anted to seat a new oo,mmiS:Si bett e, send the U.S. msrsh-.als. T he case is nO'w in court, but the controversy has rev ived inter est in the 63-y eer-old Berry, w ho hes served on the comm ission for nes.rly ha lf its 44-yes.r history and has angered evecy adminis tr ati on, Republican and Demoaat. si nce she came on board. President Carte, ap po inted ha in 1980, end she pcomptl y a iticized him for repatr ia ting Haitia n refug e,es. President Reagan tried to fi re her, but she tool: the d ismissal to court-and won. President C li nton tool: a las hing from hei wh en he w ithdrew his nom inati on of La ni G uinia to be assistant att orney g enera l for ci vil rights. And Bush saw her ao::use h is brother, Florida Gov. J eb Bush, of a pattern o f "'injustice , ineptitud e and inefficie ncy"' that dise nfranch ised minOJity rv oters in the 2000 electi on. Y ._, l'-1 '-Al I I Document ID: 0.7.18648.5597-000001 18-1620-000195 Critics say he, take-no-prisoners sty le {th e on li ne pub lica tion Sal on.com hss call ed ha .,a v itrioli c bcawlet") dil utes her effe d iveness end that o f the comm ission, wh ich has a S9-milli on annu al budg et end 80 emp loyees bu t no enfoccement powas. The Nation al J.oumel's Stu art Ta ylcx says she runs the comm iui on • as a p,op ag.e.nd.a mill foc the v idi mo logy wing o f the De mocrat ic Party .• Be,ry's fell ow comm issioner A bigail Thernstcom thinks that the comm iui on's reput ation is "'in the bas.ement. • But Berry, a histcxia n and wr it e, who was bom in segrega tion ist Nashville and survived an early chil dhood th.a t she says was worthy of Charles Didi:ens, d eli gh ts in the spe cter o f bei ng a ptoud bla d: wom an tail ing truth to power. "'It ne ve< occors to me to worry abou t wh ethe, a president d isagr ees,• she sai d in en interv iew. "'I wish I cou ld be mor e d iplomat ic, mor e me asured . I'm not trying to figur e out every da y how to be a li ghtn ing ,od. It's j ust tha t I have the courag e o f my conv ictions. • If she is rough on oppon ertts. som e might argu e sh.e has earned the priv ilege . Piece d in an ova to Richard Nixon, Fle mm ing was ther e et the creation, wh en Presiden t Eisenhower d eci ded to aea te the comm ission es a mea ns o f d e,fusing the civil rights mov ement that was simmer ing across the South. Wh en Carta named Berry to the comm ission in 1980, Fle mm ing took ha under his wing. He wou ld take hec to bfelllf ast s t th e hushed HayAd ams Hotel and schoo l h:er on the ways, big a nd sma ll. o f Washington powa. Mostly, he told het about the comm i$$ion•s h istory, about Ei se.nhowet's teble- pound i ng insist ence that it g et the facts {wh ich is why the pan el has subpoen a power ) and the t it ma intai n its ind epend ence. "'No Wh ite House. no Just ice Departm ent, tells us wh at to do, • Berry sai d. -Wh en the day com es end I'm no longer on the comm iui on, I'll know I d id wha t Arthur Fle mm ing taught me: to pcotect the integr ity o f the comm ission. " GRAP HIC: PHOTO: "'I wish I cou ld be moJe d iplomat ic. ... It's j ust tha t I ha ve the courag e of my conv idi ons,• sa)'"SMary Fra nces Berry. PHOTOG RAPHER: Associa te-d Press PVERSIGHT Document ID: 0.7.18648.5597-000001 18-1620-000196 Message Sent To:_____________________________________________________________ Anne Womack/WHO/EOP@EOP hfbelmar@yahoo.com bblomquist@nationalpress.com CKMarshall@sidley.com Dorothy.Taft@mail.house.gov gfeld@nrsc.org kgambrell@upi.com mhosen@newsweek.com Message Copied To:_____________________________________________________________ Barbara_Ledeen@src.senate.gov (Barbara Ledeen) cloparo@sos.state.oh.us crochester@kairos-inc.com dkong@ap.org thomas.ferraro@reuters.com AMERICAN pVERSIGHT Document ID: 0.7.18648.5597-000002 18-1620-000197 Colborn, Paul P Colborn, Paul P Wednesday, December 12, 2001 10:40 AM Thorsen, Carl; Whelan, M Edward III Bryant, Dan; Burton, Faith; Horowitz, Michael-CRM; Bunnell, Steve;+ 'brett_m._kavanaugh@who.eop.gov'; Dryden, Susan Subject: RE: Thursday's Hearing Attachments: burton.issue3.wpd From: Sent: To: Cc: Issue paper 3 (attached), which we prepared for the AG in early September, presents the approach I favor regardin . Slight revisions would be necessary for (b) (5) . (b) (5) -----Original Message----From: Thorsen, Carl Sent: Wednesday, December 12, 2001 10:22 AM To: Thorsen, Carl; Colborn, Paul P; Whelan, M Edward III Cc: Bryant, Dan; Burton, Faith; Horowitz, Michael-CRM; Bunnell, Steve; 'brett_m._kavanaugh@who.eop.gov';2 Dryden, Susan Subject: RE: Thursday's Hearing I just spoke with Wilson. We're on for tomorrow morning @ 10 am. He says the Chairman's focus for this hearing will remain on the Boston docs subpoenaed, our apparent refusal to turn them over, and how to reconcile our position with the Department's history of providing "review" accommodations. (b) (5) . ) One panel, Horowitz is the only witness. Also, just fyi, Jim implied that he will not be surprised if exec privilege has been asserted by tomorrow. It would be great if by today @ 3 pm we have already nailed dow (b) (5) . We may wan (b) (5) , but I leave that to comm. experts. -----Original Message----From: Thorsen, Carl Sent: Tuesday, December 11, 2001 5:16 PM To: Colborn, Paul P; Whelan, M Edward III Cc: Bryant, Dan; Burton, Faith; Horowitz, Michael-CRM; Bunnell, Steve; 'brett_m._kavanaugh@who.eop.gov' Subject: Thursday's Hearing Ed, Paul Brett and I just discussed the logistics o (b) (5) . I suggested that it might be beneficial t (b) (5) , if its appropriate to do so. (Paul, I understood from our conversation that this has been done in the past?) Brett wanted to discuss this VERSIGHT Document ID: 0.7.18648.5596 18-1620-000198 with you and Ed. Could you please get in touch with him to discuss tactical options? Also, Brett will be there from 3-4 tomorrow for the moot, so let's plan to cover this topic through discussion and q&a during that first hour. Thanks. Carl Thorsen Deputy Assistant Attorney General Office of Legislative Affairs U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530 AMERICAN pVERSIGHT Document ID: 0.7.18648.5596 18-1620-000199 Steve Bunnell From : Steve Bunnell Sent : Wednesday , December 12, 200110:50 AM To: Colborn, Paul P; Thorsen, Carl; Whelan, M Edward Ill; Martens , Matthew Cc: brett_m._kavanaugh@who.eop.gov; Horowitz , Michael-CRM Subject : RE: Thursday 's Hearing Attachments : MEH2.test.wpd Burton, Faith; Bryant, Dan; Dryden, Susan; Date: 12/12/200110:52 am -0500 (Wednesday) From: Steve Bunne ll To: "PColbom".WTGATE2.CRMGW; "wCThorsen".WTGATE2.CRMGW; "wMWhe lan ".WTGATE2.CRMGW; Martens , Matthew CC: "brett _m._kavanaugh@who.eop.gov@ inetgw ".WTGATE2.CRMGW; "FBurton".WTGATE2.CRMGW; "wD8ryant".WTGATE2.CRMGW; "wSDryden".WTGATE2.CRMGW; Horowitz, Michael-CRM Subject: RE: Thursday ' s Hear ing Per the discussion yesterday, attached for your review and comments is my attempt at a version of Michae l' s prepared statement. For discussion at today ' s 3 pm meeting. >» Thorsen , Carl 12/12/0110:21AM - I (b) (5) >» duplicate VERSIGHT Document ID: 0.7.18648.5598 18-1620-000200 duplicate 18-1620-000201 Document ID: 01186485598 Thorsen, Carl From: Sent: To: Cc: Subject: Ok. Thorsen, Carl Wednesday, December 12, 2001 12:41 PM Whelan, M Edward III Bryant, Dan; 'brett_m._kavanaugh@who.eop.gov' RE: Hearing However, in our vie . . . . Thanks for considering this. ) (b) (5) # # l# -----Original Message----From: Whelan, M Edward III Sent: Wednesday, December 12, 2001 12:30 PM To: Thorsen, Carl Subject: RE: Hearing Thanks. We're discussing this now. . (b) (5) -----Original Message----From: Thorsen, Carl Sent: Wednesday, December 12, 2001 12:21 PM To: Whelan, M Edward III Subject: Hearing Ed, a heads-up, Dan just spoke with Jay. . He feels very strongly tha # ,# (b) (5) . Carl Thorsen Deputy Assistant Attorney General Office of Legislative Affairs U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530 VERSIGHT Document ID: 0.7.18648.5602 18-1620-000202 Steve Bunnell From : Steve Bunne ll Sent : Wednesday, December 12, 2001 6:33 PM To: Colborn, Paul P; Thorsen, Carl; Whe lan , M Edwar d Ill; Martens, Matthew Cc: brett_m._kavanaugh@who.eop.gov; Horo wit z, Michael-CRM Subject : RE: Thursday 's Hear ing Attachments : MEH3.wpd Burton, Faith; Bryant , Dan; Dryden, Susan; Date: 12/ 12/2001 06:35 pm -0500 (Wednesday ) From: Steve Bunne ll To: "PColbom ".WTGATE2.CRMGW; "wCThorsen ".WTGATE2.CRMGW; "wMWh e lan ".WTGATE2.CRMGW; Martens, Matthew CC: "brett _m ._ kavanaug h@wh o.eop .gov@ inetg w" .WTGATE2.CRMGW; "FBurton ".WTGATE2.CRMGW; "wDBryant ".WTGATE2.CRMGW; "wSDryden ".WTGATE2.CRMGW; Horo wit z, Michael-CRM Subject: RE: Thursday 's Hear ing - ; Attac hed is wh at shou ld be essen ti a lly the final draft of Michael's testimony. Please note I have added (b) (5) ... »> Thorsen, Carl 12/ 12/ 01 01:15PM »> My comments: (b) (5) _ ,,, (b) (5) (b) (5) (b) (5) (b) (5) (b) (5) (b) (5) -- Origina l MessageFrom: Steve Bunne ll Sent : Wednesday , December 12, 200110:50 AM To: Colborn , Paul P; Thorsen , Carl; Whe lan , M Edward Ill; Martens, VERSIGHT Document ID: 0.7.18648.5607 18-1620-000203 Matthew Cc: brett_m._kavanaugh@who.eop.gov; Susan; Horo wit z, Michael-CRM Subje ct : RE: Thursday ' s Hearing Date: 12/ 12/200110:52 From: Steve Bunne ll Burton , Faith; Bryant , Dan; Dryden, am -0500 (Wednesday ) duplicate 18-1620-000204 Document ID: 0.7.18648.5607 duplicate 18-1620-000205 Document ID: 01186485607 Thorsen , Carl From: Thorse n, Carl Sent: Friday, December 14, 200 1 3:19 PM To: Whelan , M Edwa rd Ill; Horowitz, Micha el-CRM; Long, Linda E Ce: Bryant, Dan; Burton , Faith; 'brett_ m._kavanau gh@who.eo p.gov'; Wray, Chris; Herbert, Jam es ; Durham , John Subject: Monday an d Tuesd ay Mee tings on Bos ton/Burt on/Exec Priv Iss ues Yes . Linda, pis . sched ule in OLAconf room: Monday@ 10 am - AAG's Bryant, Chertoff, an d Bybee (w/ sta ff) and POAGChris Wray or his des ignee (we'll probab ly patch in Herbert an d poss ibly Durham by conf. ca ll for that mee tin g). Same grou p for Tuesd ay@ 8 am but include Tim Flann igan and Bre tt Kavanau gh from WH Counse l ( contact Aliso n @ 456-2632). Thanks . -- -O rigina l Mess a ge--- From: Whelan , M E,d wa rd Ill Sent: Friday, Decemb er 14, 2001 3:03 PM To: Thorsen , Carl; Horowitz, Michae l-CRM Subject: RE: Pre-mee ting on Boston iss ue Just to confirm my un ders tan ding: The OOJ-only pre-mee ting will occur Monda y at 10:00. The mee ting with the White HoU1 se folks will occur Tuesda y at 8:00. Both mee tings will occur in the OLAconfere nce room. ---- Origina l Message-- -From: Thorse n, Carl Sent: Frida y, Decemb er 14, 200 1 3:0 1 PM To: Horowitz, Micha el-CRM; Whelan , M Edward Ill Subject: RE: Pre-mee ting on Bos ton issue sor ry to crea te confus ion. i'm trying to speed skat e through my 465 unopened ema ils . -- -Origina l Mess a ge-From: Micha el-CRM Horowitz Sent: Friday, Decemb er 14, 2001 2:5 1 PM To: Whe lan, M Edwa rd Ill Cc: Thorse n, Carl; Bybee , Jay Subject: Re: Pre-mee ting on Boston iss ue Date: 12/ 14/20 01 02:53 pm -0500 (Friday) Vt:.t1~1uH I Document ID: 0.7.18648.5604 18-1620-000206 From: Micha e l-CRM Horo witz To: "wMWh e lan".WT GATE2.CRMGW CC: "wCThorse n".WT GATE2.CRMGW; "wJBybee ".WTGATE2.CRMGW Subje ct: Re : Pre- mee ting on Boston issue I am ava ilab le an d will hav e Val put it on my sch ed ule an d Mike ' s . PVERSIGHT Document ID: 0.7.18648.5604 18-1620-000207 Colborn, Paul P From: Colborn, Paul P Sent: Friday, Dece mber 14, 2001 4:43 PM To: ' Brett_M._Kavanaugh@who.eop .gov' Ce: Whelan , M Edward Ill Subject: RE:Committee interes t in Boston documen ts Attachments: Bostondocs .tp3.wpd Brett, here 's the ex:panded vers ion. ----Or igina l Message-- -From: Brett_M._Kavanaugh@who.eop.go v [mailto:Brett_M._Kavanau gh@who.eop .gov] Sent: Frida y, Decem ber 14, 2001 2:55 PM To: Colborn, Paul P Subject: RE: Committ ee interes t in Boston documen ts yes, that too, thank s; left you a voice mail {Embedded image moved "Colborn, Paul P" to file : 12/ 14/200 1 02:50:0 1 PM pic18247.pcx) Record Type : Record To: Brett M. Kavanaugh/WHO/ EOP@EOP cc: Subject: RE:Committee interest in Boston documen ts But my draft does not conta in discuss ion of DOJ's Boston invest iga tion and how the docum en ts relate to that. Carl sa ys you want that addressed too. Do you or don't you? v cn"1un Document ID: 0.7.18648.5610 1 18-1620-000208 ----Or igina l Message---From: Brett_M._Kavanau gh@who.eop.gov [mailto:Brett_M._Kavanaugh@who.eop.gov ] Sent: Frida y, December 14, 2001 2:46 PM To: Colborn, Paul P Subject: Re: Committee interest in Boston documen ts bingo; let me know when fina l; thank s ! {Embedded image moved "Colborn , Paul P" to file: 12/ 14/200 1 01:49:40 PM pic237 17.pcx) Record Type: Record To: Brett M. Kavanaugh/W HO/EOP@EOP cc: Subject: Committee interest in Boston documen ts Brett: Here 's my fir:s t draft of the talking points you asked for. I'm having it reviewed now for accuracy. Is this what you ha d in mind? -- Paul PVERSIGHT Document ID: 0.7.18648.5610 18-1620-000209 Colbo rn, Paul P From : Colborn, Paul P Sent : Tuesday , December 18, 200111:17 AM To: ' Brett_M._Kavanaug h@wh o.eop.gov ' Cc: Whelan, M Edward Ill Subject: RE: important: need review of draft PRA letter Attachments : (b) (5) .wpd Brett , per our conversation, here are the paragraphs I wrote awh ile ago on (b) (5) - Paul cc: Ed --Original Message--- (b) (5) VERSIGHT Document ID: 0.7.18648.5623 18-1620-000210 Brett_M._Kavanaugh@who.eop.gov From: Brett_M._Kavanaugh@ who.eop.gov Sent : Tuesday , December 18, 200111:29 AM To: Colborn, Pau l P Cc: Whe lan , M Edward Ill Subject: RE: important: need rev iew of draft PRA letter Attachments : (b) (5) .wpd ; pic25277.pcx thanks; I changed that and incorporated your mater ia l (Embedded image moved "Colborn, Pau l P" to file: 12/ 18/200 1 11:17:07 AM pic25277 .pcx ) Record Type: Record To: Brett M. Kavanaugh/WHO/EOP@EOP duplicate 18-1620-000211 Document ID: 0.7.18648.5633 duplicate 18-1620-000212 Document ID: 01186485633 18-1620-000213 Document ID: 0.7.18648.5633-000001 Colbo rn, Paul P From : Colborn, Paul P Sent : Tuesday , December 18, 200111:51 AM To: ' Brett_M._Kavanaug h@wh o.eop.gov ' Cc: Whelan, M Edward Ill Subject: RE: important: need rev iew of draft PRA letter Brett , in add ition to the substant ive comments Ed and I have given you by phone, here are a few nits: Add full cite to Nixon v. GSA in 3rd para. In para. 7, add "wh ether " after "former President" in 3rd line, and change "Pres ident iecords " to "Pres ident ia l records" in 3rd-to~last line. In para. 9 ("First "), dehyphenate "long-stand ing" In para. 12 ("There a lso "), add "to" before "take " in line 10. (b) (5) VERSIGHT Document ID: 0.7.18648.5630 18-1620-000214 Whelan , M Edward Ill From : Whelan, M Edward Ill Sent : Tuesday , December 18, 2001 2:08 PM To: 'Kavanaugh, Brett ' Subject : FW: important: need review of draft PRA letter FYI --Or iginal Message-From: Whelan, M Edward Ill Sent: Tuesday, December 18, 2001 2:07 PM To: Burton, Faith; Thorsen, Carl Cc: Colborn, Paul P Subject: FW: important: need review of draft PRA letter Faith: Both Paul and I think that your sentence following reflects a couple ed its for your consideration: ' (b) (5) (b) (5) -Original Message-From: Burton, Faith Sent: Tuesday, December 18, 20011:54 PM To: Colborn, Paul P; Thorsen, Carl Subject: RE: important: need review of draft PRA letter What about this? FB -Original Message-From: Colborn, Paul P Sent: Tuesday, December 18, 2001 9:30 AM To: Burton, Faith Subject: FW: important: need review of draft PRA letter Faith, please call me about this. Also, I never received the signed OLA letter to Hom and Ose decl ining to answer their quest ions. Please fax that to me asap at 58524. -- Paul (b) (5) VERSIGHT Document ID: 0.7.18648.5637 18-1620-000215 18-1620-000216 Document ID: 01186485637 Whelan, M Edward III From: Sent: To: Subject: Attachments: FYI: Whelan, M Edward III Wednesday, December 19, 2001 9:23 AM 'Kavanaugh, Brett' FW: Draft letter to Burton, per our conversation burton.1218.rev.wpd Here are the OLC revisions from last night (b) (5) ). -----Original Message----From: Colborn, Paul P Sent: Tuesday, December 18, 2001 5:16 PM To: Burton, Faith; Chertoff, Michael; Horowitz, Michael-CRM; Martens, Matthew; Whelan, M Edward III; Bybee, Jay;. Thorsen, Carl; Durham, John; Herbert, James; Bryant, Dan Subject: RE: Draft letter to Burton, per our conversation Attached is OLC's suggested revision to OLA's draft. Jay Bybee was out of the office this afternoon and% therefore hasn't reviewed this draft. But Ed Whelan and I thought it was important to circulate the draft% today so everyone can start reviewing it. -----Original Message----From: Burton, Faith Sent: Tuesday, December 18, 2001 12:47 PM To: Chertoff, Michael; Horowitz, Michael-CRM; Martens, Matthew; Whelan, M Edward III; Bybee, Jay; Thorsen,. Carl; Colborn, Paul P; Durham, John; Herbert, James; Bryant, Dan Subject: Draft letter to Burton, per our conversation << File: burton.1218.wpd >> If I've inadvertently omitted anyone from this circulation, would you please% forward it to that individual; thanks. I will also share this with Beth Beers at the FBI. Faith VERSIGHT Document ID: 0.7.18648.5644 18-1620-000217 Brett_M._Kavanaugh@who.eop.gov Brett_M._Kavanaugh@who.eo p.gov From: Sent: Wed nesd ay, December 19, 200 1 2:00 PM To: Whelan, M Edward Ill Subject: Attachments: Draft op-ed WP Gonzales Pres ide ntial Reo crds draft 2 12. 18.doc An op-ed is running tomorrow in Wash Post. Please review this draft ASAP. Thanks. {See attach ed file : WP Gonzales Pres ide ntial Reo crds draft 2 12. 18.doc) PVERSIGHT Document ID: 0.7.18648.5649 18-1620-000218 Brett_M._Kavanaugh@who.eop.gov Brett_ M._Kavanau gh@wh o.eo p.go v From: Sent: Wed nesd ay , De ce mb er 19, 200 1 5:5 4 PM To: Whe la n, M Edwa rd Ill Subject: FINAL CLEARANCE- SAP, H.R. 32 10-Terro rism Ris k Insuranc e Prote ct ion Act {Se nat e su bs titut e ) Attachments: HR32 10 se nat e sa p.wpd ----- - Fo rwa rded by Brett M. Kavana ug h/W HO/ EOP on 12/ 19/20 01 05:53 PM - ---- Bre tt M. Kavanau gh 12/ 19/200 1 05: 48:46 PM Re cord Type : Re cord To: m.ed wa rd .whe lan@u doj. go v@ ine t cc: Subje ct: FINALCLEARANCE- SAP, H.R. 32 10-Terro rism Risk Insuranc e Prot e ct ion Act {Se nat e su b s titut e ) ------ Fo rwa rded by Brett M. Ka va na ug h/WH O/E OP on 12/ 19/2 00 1 05: 48 PM ----- Dan ie lle M. Simone tta 12/ 18/20 01 08 :34 :07 PM Re cord Type : Re cord To: See th e dis tribu tion lis t at th e bott om of th is mess a ge cc: Subje ct: FINAL CLEARANCE- SAP, H.R. 32 10-Terro rism Risk Ins uranc e Prot e ct ion Act {Senat e s ub st itut e ) Here is th e fina l vers ion of th e SAP on H.R. 321 0, for your cle a ranc e . The SAP is writt e n to re fle ct Sen . -. ' .. • +, + Vt:.H~luH Document ID: 0.7.18648.5648 I . , •• • . .. , - · 18-1620-000219 Daschle 's proposed subst itute amendment {not the House vers ion ot the bill). The bill is sc hedu led to be considered on the floor at some point after 12:00 pm tomorrow. Therefore, please respond to me with your comments/clearance , by 11:00 am tomorrow, Wednesday, December 19th. If you have any quest ions , please call me. Thanks , Danielle (54790 ) (See attac hed file: HR3210 senate sap .wpd) DRAFT- NOT FOR RELEASE December 19, 2001 (Senate ) (b) (5) 'C VERSIGHT Document ID: 0.7.18648.5648 18-1620-000220 {Do Not Distribut e Outs ide the Executive Office of the Pres iden t) This Statement of Administration Policy was de veloped by th e Legislat ive Reference Divis ion {Rodgers ), in consu ltat ion with Commerce {Clark), Treasury {Dorse y), State {Fau lkner), EP {Smith), NEC {Sumerlin), OVP {Add ington ), CEA{Furchtgott-Roth, Holtz-Eakin, Brown), BRO{Dale, Lebron, Timberlake), OIRA(Noe), OMBGC{Beynon), and HTF{Bode n, Enger). Justic e did not respond to our reques t for views. OMB/LAClearance :________________________ _ Administration Position to Date The Administration ha s not tak en a pos ition on the Senate vers ion of H.R. 3210. On November 28, 2001 , a SAPon H.R. 3210 , the "Terrorism Risk Protection Act" was sen t to the House Rules Committee . The SAPurged prompt pa ssage of H.R. 3210 "as a step t owa rd enac tmen t of leg islat ion to ensure the cont inued ava ilab ility of insurance for terrorist-related acts." H.R. 3210 included provisions that limited terrorist-related litiga tion. The SAP expressed th e Administration's concern with the repaymen t assessment mechan ism and th e adm inistrative comp lexities of H.R. 3210 as a whole. The SAPa lso stated that "procedures for conso lida tion and management of mass tort litiga tion arising out of a terrorism inciden t are a necessary part of any mean ingful terrorism insurance proposa l, and thus a necessary cond ition for Administ ration support of any t errorism insurance bill." Summary of Senate Manager 's Amendmen t to H.R. 3210 The following summary is ba sed on a draft of a manager 's amendment that Treasury staff believe will be offered as a subs titut e for th e House passed vers ion of H.R. 3210. The amendment wou ld es tabli sh a temporary "Terrorism Insured Loss Shared Compensation Program " {Program ) within th e Department of the Treasury intended to ensure the continued ava ilab ility of commer cial property and casua lty insurance and reinsurance for terrorism-re lated risks. The amendment would provide for Federa l ass istanc e for future terrorism damage if it reac he.s certa in levels. That amount would be ba sed on a formula, which is market sha re multiplied by $1.0 billion in the first year , and market sha re multiplied by $15 billion in the optional seco nd year . For losses above thi s "reten tion leve-1,"the cost of terrorism losses would be shared. The Federa l governmen t would pay for approx imate ly 80 percent of insurance losses be low $10 billion, with the indus try paying 20 percent. For losses between $10 billion and $100 billion, the split would be 90-10. The amendment would provide author ity for one year to pay for certa in property and casua lty losses res ulting from a terrorist attack; th e author ity could be extended for a second year. Authority of the Secre tary of the Treasury. The amendment would make the Secretary of th e Treas ury respons ible for car,rying out the program for financial ass istanc e for commercia l prope rty and casua lty insurers that wou ld be es tabli shed by the bill. The Secretary could ext end the Program an add itiona l year, expiring on December 31, 2003. Trigger ing Determinat ion and Federa l Cost-Sharing for Commercia l Insurers. r r+ ' ., .' '. ' ' '' .. pvct1~1uH Document ID: 0.7.18648.5648 I 1 I . ' .' 18-1620-000221 Under the amendment, 1-edera l tinanc ial ass istanc e would be triggered by a de terminat ion ot the Secretary that the insured losses resu lting from the even t of an act of terrorism occurring during th e covered period, or the aggregate insured losses resu lting from multiple even ts of acts of t errorism all occurring during th e covered period. The Secretary would have the sole author ity for de term ining whether an occurrence or even t was caused by an act of t errorism, whether insured losses from acts of t errorism were caused by one or multiple even ts or occurrences , and whether an act of terror ism occurred during the covered period. The amount of Federa l ass istance would be ba sed on a formula, which is th e "market share " of a part icipat ing insurance company (tota l amount of gross property and casua lty insurance prem iums during the 2-year period preced ing the year in which the act of terrorism occurred , as a percentage of the aggregate of all indus try wide prem iums ) multiplied by $10 billion in the first year , and market sha re multiplied by $15 billion in th e optiona l second yea r. For losses above th e "insurance company 's deductible," the cost of terrorism losses would be shared. The Federal government would pay for approx imate ly 80 percent of insurance losses below $10 billion, with the industry paying 20 percent. For losses bet ween $10 billion and $100 billion, the split would be 90-10. The amendment would provide author ity for one year to pay for certa in prope rty and casua lty losses resu lting from a terrorist attack ; th e author ity could be ext ended for a second year. The aggregate amount of financial ass istanc e provided could not exceed $100 billion. Sovereign Immunity Protections . Whenever Federa l financia l ass istanc e is t riggered (i.e., whenever an act of terrorism occu rs), the amendment would provide for a Federa l cause of act ion which would be the exclusive remed y for damages claimed pursuant to any acts of terrorism that caused th e insured losses. These cases would be governed by the law of the State in which the act of terrorism occurred , unless such law is incons isten t with or preemp ted by Federa l law. Under the amendment, the plaintiff may see k any form of reco very from any person , government , or other en tity that was a part icipant in, or aider and abettor of, any act of terrorism. Ext ens ion of Progra m. The Secretary could, upon making a de terminat ion that an ext ens ion of the provisions of the bill is necessary to ensure the adequate ava ilab ility in the United States . of commercia l property and casua lty insurance coverage for acts of terrorism, ext end the per iod in which these provisions app ly to a da te no later than December 31, 2003. State Preempt ion. Under the amendment , a commercia l insurer would be cons idered t o have complied with any State law that requ ires or regu lates the provision of insurance coverage for acts of terrorism if the insurer provides coverage in accordance with th e de finitions regard ing acts of t errorism under th e regu lations issued by the Secretary. If any provision of any State law prevents an insurer from increasing its premium rates in an amount necessary to recover any assessments pursuant to the amendment , suc h provision is preempted only to the ext en t necessary to provide for such insurer to recover suc h losses. Studies and Reports. Under the amendment , no later than 9 months after the da te of enac tmen t th e Secretary would be requ ired to subm it a report to Congress that would cons ider the impact of the Program on: {1) the ava ilab ility of insurance coverage for acts of terrorism; {2) the affordab ility of such coverage , including th e effec t of suc h coverage of prem iums; and {3) th e capacity of the insurance industry to absorb future losses resu lting from acts of terrorism, taking into account th e profitab ility of the insurance indus try. The Secretary would also cons ider the probab le impact on the United States economy if the Progra m terminates at midnight on December 31, 2002. Within 9 months of enactm ent of the amendment , th e Secretary would be requ ired to conduct a stu dy aAd report t o the Congress on th e poten tial effec ts of acts of terrorism on the life insurance industry in V L.I l'-1 U Document ID: 0.7.18648.5648 I I 18-1620-000222 the United States an d other lines of insuranc e coverage . The Secretary would be req uired to consu lt with th e Nationa l Asso ciat ion of Insuranc e Commiss ioners {NAie), represe ntat ives of the insuranc e industry, an d other experts in th e field . Beginning 6 month s aft er enactm ent of th e am endment, an d every 6 month s there aft er, e ach part icipat ing insur anc e company would be req uired to subm it a report to the NAIC that stat es th e premium rat es cha rged by that insuranc e company during th e preced ing 6-month period for insured losses covered by th e Program , and includes an explanat ion of an d justificat ion for those rat es . The NAIC would be req u ired to forwa rd copies of each report su bmitt ed , t o the Secretary of th e Treasu ry, th e Secretary of Co mmerce, the Chairman of the Feder al Trade Commiss ion, an d th e Compt roller Genera l of th e Unit ed States . The Secretary of the Treasury, the Secretary of Commerce, an d the Chairman of the Feder al Trade Commiss ion would be req uired to subm it a joint report to Congress an d th e Compt roller Ge neral of the United Stat es summa rizing an d evaluat ing the reports forwa rded by NAIC. No lat er than 9 0 days aft er receipt, the Compt ro ller General of the United Stat es would be req uired to evaluat e an d s ubm it a report t o Congress an evaluat ing the reports. Pay-As-You-Go Scor ing According to BRO {l ee ), the am endment would affe ct direct spending an d receipts; th erefo re, it is subject to the pay -a s-you-go req uirements of the Omnibus Budge t Reconci liat ion Act of 199 0. RMO staff advises that th e bill could potentially hav e a PAYGO cos t, but an 0M B es timat e ha s not bee n ma de . Cost es t imat es are problemat ic due to unc erta inties involving future act s of terro rism. CBO scoring of th e mana ger 's am endmen t is not yet ava ilab le . LEGISLATIVE REFERENC E DIVISION DECEMBER 18, 200 1 Mess ag e Sent To:__________________________ _ Nicho las E. Calio/W HO/ EOP@EOP Joel D. Kaplan/W HO/EOP@ EOP Kristen Silver berg /W HO/EOP@ EOP Jack Howard/W HO/ EOP@EOP Ziad S. Ojakli/WHO/EOP@ EOP Matth ew Kirk/W HO/ EOP@EOP Micha el J. Co nway/W HO/ EOP@EOP Jill Davie/WHO/ EOP@EOP Alison Jones /W HO/ EOP@EOP Ashley Holbroo k/WHO/EOP@ EOP Daniel M. McCarthy/W HO/ EOP@EOP D. Marcus Su merlin/ OPD/ EOP@EOP Les lie A. Moo ney/OPD/ EOP@EOP Alliso n L. Rie penhoff/W HO/ EOP@EOP Diana L. Schacht/OPD/ EOP@EOP Rebecca L. Halkias/W HO/ EOP@EOP ,,., _ _ J .. , r ... . l_ L _ PVE:.H~ -·II Document ID: 0.7.18648.5648 J,• 11 t i""\ J r r.r,...:-.r l"'\ n 18-1620-000223 wenay J. \.:,rU00S/WH U/ tUl'(!!)tU I' Edward lngle /WH O/EOP@EOP Albert Ha wkins/W HO/ EOP@EOP Nancy P. Oorn/WHO/EOP Cand ida P. Wo lff/ OVP/EOP@EOP Lauren K. Allgoo d/OVP/EOP@EOP Cesar Conda/OVP/EOP@EOP Neil S. Patel/OVP/EOP@EOP Jonathan W. Burks/O VP/ EOP@EOP Dougla s J. Ho ltz-Eakin/C ENEOP@EOP Diana E. Furcht go tt-Roth/CENEOP@EOP Daniel J. Bart lett/W HO/ EOP@EOP Susan 8. Rals ton/WHO/EOP@ EOP Harr ie t Miers /WH O/ EOP@EOP Stuart W. Bow en/W HO/ EOP@EOP Barbara A. Barclay/WH O/EOP@EOP Deb ra 0. Bird/WH O/EOP@EOP Carolyn E. Clevelan d/WHO/EOP@EOP Karen 0. Cruso n/WHO/EOP@EOP Lauren C. Lobrano / OMB/ EOP@EOP Christine C. McCarl ie/ OMB/ EOP@EOP Eric C. Pelletie r/OMB/EOP@ EOP Randa ll S. Kroszner /C EN EOP@EOP Brett M. Kavanaugh/WHO/ EOP@ EOP David S. Add in gton/OVP / EOP@EOP Linda C. Luisi/N SC/ EOP@EOP George M. Andricos/N SC/ EOP@EOP John A. Cloud/N SC/ EOP@EOP John F. Samm is/NSC/EOP@ EOP Amy C. Smith/OMB/EOP@ EOP PVERSIGHT Document ID: 0.7.18648.5648 18-1620-000224 Colborn , Paul P From: Colborn , Pau l P Sent : Thursday , December 20, 2001 9:16 AM To: ' Brett_M._Kavanaugh@ who.eop.gov '; Thorsen , Carl; Bryant, Dan Cc: Whe lan , M Edward Ill Subject: RE: Burton letter Attachments: burton.1219.o lc.wpd Brett: Attached is the fina l vers ion. I'm a lso fax ing you a s igned copy. I'll leave it to Dan or Carl to (b) (5) respond on the quest ion. - Pau l -Orig ina l Message From: Brett_M._Kavanaugh@who.eop.gov {ma ilto:Brett_M. _ Kavanaugh@who.eop.gov ) Sent: Wednesday , December 19, 2001 8:46 PM To: Thorsen , Carl; Bryant , Dan; Colborn , Pau l P Subject: Burton letter fe w quest ions: can someone e- ma il me fina l vers ion of letter to Burton? (b) (5) 1? VERSIGHT Document ID: 0.7.18648.5651 18-1620-000225 U.S. Department of Justice Office of Legislative Affairs⌘ Office of the Assistant Attorney General Washington, D.C. 20530◆ December 19, 2001⌘ The Honorable Dan Burton⌘ Chairman⌘ Committee on Government Reform⌘ U.S. House of Representatives⌘ Washington, DC 20515⌘ Dear Mr. Chairman:⌘ I am writing to follow up regarding the Committee’s subpoenas seeking prosecutorial⌘ decisonmaking memoranda in connection with the Committee’s investigations of campaign⌘ finance matters, alleged false statements by an individual (Ernest Howard) in a separate⌘ investigation, and the FBI’s handling of informants in Boston. The Department stands ready to⌘ work with the Committee to seek to accommodate the legitimate needs that the Committee may⌘ have for information regarding these matters. The Department has a strong confidentiality interest in the extremely sensitive⌘ prosecutorial decisionmaking documents called for by the subpoenas. The Attorney General⌘ and other Department decisionmakers must have the benefit of candid and confidential advice⌘ and recommendations in making investigative and prosecutorial decisions. Consistent with the⌘ longstanding position of the executive branch with respect to these kinds of highly sensitive⌘ memoranda, the President has therefore asserted executive privilege with respect to the⌘ subpoenaed documents. At the same time, he has requested that the Department remain willing⌘ to work with the Committee to provide such information as the Department can, consistent with⌘ his instructions and without violating the constitutional doctrine of separation of powers.⌘ Pursuant to longstanding executive branch policy, in responding to congressional⌘ requests for confidential information, the Department seeks in all cases to engage in an⌘ accommodation process in an effort to satisfy legitimate congressional needs while protecting⌘ executive branch confidentiality interests. The Department has already accommodated the⌘ Committee’s information needs with respect to the prosecutorial memoranda relating to⌘ campaign finance and the Howard matter. We have provided briefings on the reasons for the⌘ decisions to decline prosecutions for Ernest Howard and Mark Middleton, which your August⌘ 30, 2001, letter indicated were very helpful. With regard to the Conrad collection of⌘ memoranda, on August 23, 2000,⌘ VERSIGHT Document ID: 0.7.18648.5651-000001 18-1620-000226 then Attorney General Reno publicly stated the reasons for her decision not to appoint a Special⌘ Counsel and, on October 5, 2000, you questioned her about that decision in an interview on the⌘ record. Prior to these explanations, the Department had provided the underlying factual records⌘ relating to each matter, to the extent permissible under the grand jury secrecy requirements of⌘ Rule 6(e) of the Federal Rules of Criminal Procedure. In the October 2000 meeting, some⌘ information also could not be provided because of its relevance to then pending investigations.⌘ As to the Boston matter, we believe that the Department and the Committee can work⌘ together to provide the Committee additional information without compromising the principles⌘ maintained by the executive branch. We will be prepared to make a proposal as to how further⌘ to accommodate the Committee’s needs as soon as you inform us in writing of the specific needs⌘ the Committee has for additional information. See United States v. American Tel. & Tel.⇥ Co., 567 F.2d 121, 127 (D.C. Cir. 1977); Senate Select Committee on Presidential Campaign⌘ Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc).⌘ The Department has been providing an extensive body of other materials to the⌘ Committee since April 27, 2001, when we provided approximately 1178 pages in response to⌘ your request of March 30, 2001 for documents about the murder of Mr. Edward Deegan, for⌘ which Mr. Joseph Salvati and six others were convicted. Since the crime was not prosecuted⌘ federally, the FBI does not have a discrete file on the subject. Hence, the responsive documents⌘ were found in other files and some information was redacted because it pertained to other⌘ matters outside the scope of the Committee’s request. In August 2001, Committee counsel⌘ reviewed unredacted copies of these documents and some pages were re-processed to restore⌘ information that was responsive to your June 5 request for documents on other Boston matters. More than 3800 pages have been produced in response to that request and the FBI is still⌘ processing responsive documents regarding the FBI’s handling of informants in Boston. We⌘ expect to provide documents regarding the FBI’s Top Hoodlum Program this week and to⌘ produce additional documents after the Holiday recess. The document production process for the Boston matters has thus been proceeding since⌘ March of this year. We note, moreover, that the Committee’s March and June requests did not⌘ indicate any interest in the prosecutorial decision-making memoranda and the Committee did not⌘ even request them until it subpoenaed them on September 6. The Committee then immediately⌘ scheduled for September 13 a hearing regarding its demand for these documents. When that⌘ hearing was postponed due to the events of September 11, the Department was advised that the⌘ matter would be deferred until a later time. We first learned that the Committee was renewing⌘ the matter during the week following Thanksgiving when the hearing was re-scheduled for⌘ December 6. It was postponed to December 13 at the Department’s request so that Assistant⌘ Attorney General Michael Chertoff could testify, but his obligations relating to the September 11 investigation made that appearance impossible and the Chairman refused the Attorney General’s⌘ request that the hearing be postponed to the week of December 17.⌘ 2⇥ VERSIGHT Document ID: 0.7.18648.5651-000001 18-1620-000227 The Department fully respects the Committee’s interest in reviewing allegations of⌘ misconduct by government employees, and we have provided, and will continue to provide,⌘ investigative records, judicial filings, and other records responsive to your requests, consistent⌘ with the accommodation process. Of course, we cannot provide grand jury information covered⌘ by Rule 6(e), electronic surveillance information subject to Title III, or information that would⌘ identify confidential informants.⌘ Finally, as the Committee is aware, the Department is fully committed to addressing⌘ corruption in the handling of informants by the FBI in Boston and has dedicated extensive⌘ resources to that purpose. In 1999, the Justice Task Force was established to investigate law⌘ enforcement corruption relating to Messrs. James Bulger and Stephen Flemmi. The Task Force⌘ has expanded the scope of the inquiry to include allegations that FBI agents and prosecutors⌘ allowed a witness to frame Mr. Salvati and others for the Deegan murder while permitting that⌘ witness to protect another individual, who was central to the murder conspiracy. It was the Task⌘ Force that located exculpatory documents, which led to the release of Peter Limone and the⌘ dismissal of charges against Mr. Salvati and Mr. Limone. The Task Force also has obtained the⌘ indictment of former FBI Special Agent John Connolly, which is expected to go to trial early in⌘ 2002. Additionally, the United States Attorney’s Office in Boston obtained indictments against⌘ Messrs. Bulger and Flemmi in 1995 and in 2000, charging them with 19 and 10 murders,⌘ respectively. The ongoing work of the Task Force and the United States Attorney’s Office is⌘ dedicated to investigating and prosecuting corruption by FBI agents and prosecutors relating to⌘ the handling of informants, as well as any underlying crimes that may have been committed by⌘ those individuals. As these efforts proceed, it will be important to ensure that they are based⌘ only on the evidence and the law, free from any political influence or coercion.⌘ We have not objected to the Committee’s undertaking its own investigation and⌘ we understand that Committee staff have conducted interviews and may have undertaken other⌘ investigative steps in Boston and elsewhere. We ask that the Committee provide us with⌘ information that it believes may be relevant to potential violations of federal criminal law. We understand the Committee’s interest in not deferring its own inquiry while our criminal⌘ investigations continue, and we trust that the two can continue independently, as has often⌘ happened historically.⌘ The Department looks forward to a continued dialogue with the Committee so we can⌘ accommodate your legitimate oversight needs for information in a manner that is consistent with⌘ 3⇥ AMERICAN pVERSIGHT Document ID: 0.7.18648.5651-000001 18-1620-000228 our law enforcement responsibilities. We would like to resume such a constructive conversation⌘ as soon as possible.⌘ Sincerely,⌘ Daniel J. Bryant⌘ Assistant Attorney General⌘ cc: The Honorable Henry Waxman⌘ Ranking Minority Member⌘ Members of Committee on Government Reform⌘ 4⇥ AMERICAN pVERSIGHT Document ID: 0.7.18648.5651-000001 18-1620-000229 Colborn, Paul P From: Sent: To: Cc: Subject: Colborn, Paul P Thursday, December 20, 2001 9:29 AM 'Brett_M._Kavanaugh@who.eop.gov' Whelan, M Edward III Letter to Chairman Horn re presidential records executive order Brett: cc: Has the letter gone out? -- Paul Ed VERSIGHT Document ID: 0.7.18648.5650 If so, could you fax me the signed copy at 305-8524? Thanks.% 18-1620-000230 U.S. Department of Justice Office of Legal Counsel Washington, D.C. 20530 August 17, 2018 Gabe Roth Executive Director Fix the Court gabe@fixthecourt.com Re: FOIA Tracking No. FYl 7-207; Fix the Court v. DOJ, D.D.C. No. 18-cv-1620 Dear Mr. Roth: This letter partially responds to your May 8, 2017 Freedom of Information Act ("FOIA") request to the Office of Legal Counsel ("OLC") seeking, as narrowed, "[a]ll correspondence sent by the Assistant Attorney General in charge of the Office of Legal Counsel and his or her ' primary deputy to Brett M. Kavanaugh and all correspondence sent by Brett M. Kavanaugh to the Assistant Attorney General in charge of the Office of Legal Counsel and his or her primary deputy from January 20, 2001, to May 30, 2006," including carbon copied communications. As you know, the request is also the subject of the above-captioned litigation. Since the last partial response, we have processed 419 pages ofresponsive records. We have enclosed 191 pages with redactions and withheld the remaining 228 pages in full. Our redactions are based on FOIA Exemption Five, 5 U.S.C. § 552(b)(5), or FOIA Exemption Six, 5 U.S.C. § 552(b)(6). The full withholdings are based on Exemption Five. For your information, Exemption Five exempts material protected by the attorney-client, deliberative process, and presidential communications privileges, as well as the attorney work product doctrine and other privileges. Exemption Six exempts material the disclosure of which would constitute a clearly unwarranted invasion of personal privacy . We have determined that none of the withheld material is appropriate for discretionary release. We are continuing to process responsive records. For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. § 552(c). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist. Your counsel may contact Danielle Wolfson Young of the Civil Division, Federal Programs Branch, at 202-616-2035 or at danielle.young2@usdoj.gov, to discuss any aspect of your request. Additionally, you may contact the Office of Government Information Services ("OGIS") at the National Archives and Records Administration to inquire about the FOIA mediation services they offer. The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration, Room 2510, A\lllRICAN PVERSIGHT 8601 Adelphi Road, College Park, Maryland 20740-6001, e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769. Although your request is the subject of ongoing litigation, and administrative appeals are not ordinarily acted upon in such situations, I am required by statute and regulation to inform you of your right to file an administrative appeal. You may administratively appeal by writing to the Director, Office oflnformation Policy ("OIP"), United States Department of Justice, Suite 11050, 1425 New York Avenue, NW, Washington, DC 20530-0001, or you may submit an appeal through OIP's FOIAonline portal by creating an account on the following web site: https://foiaonline.regulations .gov/foia/action/public/home. Your appeal must be postmarked or electronically transmitted within 90 days of the date of my response to your request. If you submit your appeal by mail, both the letter and the envelope should be clearly marked "Freedom of Information Act Appeal." Paul P. Colborn Special Counsel Enclosures cc: Danielle Wolfson Young, Trial Attorney Civil Division, Federal Programs Branch Elizabeth France, Counsel American Oversight AMERICAN PVERSIGHT 2 Whelan, M Edward III From: Sent: To: Subject: Whelan, M Edward III Thursday, October 24, 2002 10:57 AM 'Kavanaugh, Brett' DC law (b) (5) Out of an abundance of caution, I have a call into someone at DOJ who should be able to confirm my reading of D.C. law. But if you need an answer before I hear back from him (b) (5) - VERSIGHT Document ID: 0.7.18648.6398 18-1620-B-000001 Whelan, M Edward III From: Sent: To: Subject: Whelan, M Edward III Thursday, October 24, 2002 4:55 PM 'Kavanaugh, Brett' (b) (5) s Here's a thumbnail sketch: 1. 2. . (b) (5) I discussed with Roy McLeese r (b) (5) . . . VERSIGHT Document ID: 0.7.18648.6400 18-1620-B-000002 Brett_M._Kavanaugh@who.eop.gov Brett_M._Kavanaugh@who.eop.gov From: Sent: Tue sd ay, Novem be r 12, 2002 8:42 AM To: Whe lan, M Edward Ill Subject: fina l text AYO02_952 .pdf; pic09096. pcx Attachments: Your opinion shou ld referen ce the se ctions in the fina l text. ------ Forwa rded by Brett M. Kavanau gh/WHO/ EOP on 11/ 12/2002 08:44 AM----- Matth ew Kirk 11/ 12/2002 07:06:46 AM Record Type: Record To: Brian C. Conklin/ WHO/EOP@EOP cc: Brett M. Kavanau gh/WHO/ EOP@EOP, Kristen Silverberg Subject: Per your reques t: ------ Forwa rded by Matth ew Kirk/WHO/EOP on 11/ 12/2002 07:12 AM ------- {Embedded image moved Laura_Ayoud@s lc.se nat e .gov {Laura Ayoud) to file : 11/ 11/2002 06:57:08 PM pic09096 .pcx) Record Type : Record To: Matth ew Kirk/WHO/EOP@EOP cc: Subject: Per your reques t: VERSIGHT Document ID: 0.7.18648.6402 18-1620-B-000003 Hi Matt: The attach ed is the 'final' vers ion of the leg islat ive t ext, for your review. The actua l conference report will be reprinted without a da te at the bottom , but I'll do tha t once all of th e other pieces are finished. I also did another documen t compar ing the Oct. 17 draft {AYO02.921 } to thi s one , so please call if you'd like me to fax over a copy of that. Laura Ayoud {202-224-6461 } VERSIGHT Document ID: 0.7.18648.6402 18-1620-B-000004 S.L.C. O:\AYO\AYO02.952 1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. (a) SHORT TITLE.—This Act may be cited as the 2 3 ‘‘Terrorism Risk Insurance Act of 2002’’. 4 (b) TABLE 5 this Act is as follows: OF CONTENTS.—The table of contents for Sec. 1. Short title; table of contents. TITLE I—TERRORISM INSURANCE PROGRAM Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 101. 102. 103. 104. 105. 106. 107. 108. Congressional findings and purpose. Definitions. Terrorism Insurance Program. General authority and administration of claims. Preemption and nullification of pre-existing terrorism exclusions. Preservation provisions. Litigation management. Termination of Program. TITLE II—TREATMENT OF TERRORIST ASSETS Sec. 201. Satisfaction of judgments from blocked assets of terrorists, terrorist organizations, and State sponsors of terrorism. TITLE III—FEDERAL RESERVE BOARD PROVISIONS Sec. 301. Certain authority of the Board of Governors of the Federal Reserve System. 6 7 TITLE I—TERRORISM INSURANCE PROGRAM 8 SEC. 101. CONGRESSIONAL FINDINGS AND PURPOSE. 9 10 (a) FINDINGS.—The Congress finds that— (1) the ability of businesses and individuals to 11 obtain property and casualty insurance at reasonable 12 and predictable prices, in order to spread the risk of 13 both routine and catastrophic loss, is critical to eco- 14 nomic growth, urban development, and the construc- 15 tion and maintenance of public and private housing, 16 as well as to the promotion of United States exports November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000005 S.L.C. O:\AYO\AYO02.952 2 1 and foreign trade in an increasingly interconnected 2 world; 3 (2) property and casualty insurance firms are 4 important financial institutions, the products of 5 which allow mutualization of risk and the efficient 6 use of financial resources and enhance the ability of 7 the economy to maintain stability, while responding 8 to a variety of economic, political, environmental, 9 and other risks with a minimum of disruption; 10 (3) the ability of the insurance industry to 11 cover the unprecedented financial risks presented by 12 potential acts of terrorism in the United States can 13 be a major factor in the recovery from terrorist at- 14 tacks, while maintaining the stability of the econ- 15 omy; 16 (4) widespread financial market uncertainties 17 have arisen following the terrorist attacks of Sep- 18 tember 11, 2001, including the absence of informa- 19 tion from which financial institutions can make sta- 20 tistically valid estimates of the probability and cost 21 of future terrorist events, and therefore the size, 22 funding, and allocation of the risk of loss caused by 23 such acts of terrorism; 24 (5) a decision by property and casualty insurers 25 to deal with such uncertainties, either by termi- November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000006 S.L.C. O:\AYO\AYO02.952 3 1 nating property and casualty coverage for losses 2 arising from terrorist events, or by radically esca- 3 lating premium coverage to compensate for risks of 4 loss that are not readily predictable, could seriously 5 hamper ongoing and planned construction, property 6 acquisition, and other business projects, generate a 7 dramatic increase in rents, and otherwise suppress 8 economic activity; and (6) the United States Government should pro- 9 10 vide temporary financial compensation to insured 11 parties, contributing to the stabilization of the 12 United States economy in a time of national crisis, 13 while the financial services industry develops the sys- 14 tems, mechanisms, products, and programs nec- 15 essary to create a viable financial services market for 16 private terrorism risk insurance. 17 (b) PURPOSE.—The purpose of this title is to estab- 18 lish a temporary Federal program that provides for a 19 transparent 20 pensation 21 rorism, 22 system of shared public and private com- for insured losses resulting from acts of ter- in order to— (1) protect consumers by addressing market 23 disruptions and ensure the continued widespread 24 availability and affordability of property and cas- 25 ualty insurance for terrorism risk; and November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000007 S.L.C. O:\AYO\AYO02.952 4 1 (2) allow for a transitional period for the pri- 2 vate markets to stabilize, resume pricing of such in- 3 surance, and build capacity to absorb any future 4 losses, while preserving State insurance regulation 5 and consumer protections. 6 SEC. 102. DEFINITIONS. 7 8 9 In this title, the following definitions shall apply: (1) ACT OF TERRORISM.— (A) CERTIFICATION.—The term ‘‘act of 10 terrorism’’ means any act that is certified by 11 the Secretary, in concurrence with the Sec- 12 retary of State, and the Attorney General of the 13 United States— 14 (i) to be an act of terrorism; 15 (ii) to be a violent act or an act that 16 is dangerous to— 17 (I) human life; 18 (II) property; or 19 (III) infrastructure; 20 (iii) to have resulted in damage within 21 the United States, or outside of the United 22 States in the case of— 23 24 November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 (I) an air carrier or vessel described in paragraph (5)(B); or 18-1620-B-000008 S.L.C. O:\AYO\AYO02.952 5 (II) the premises of a United 1 2 States mission; and 3 (iv) to have been committed by an in- 4 dividual or individuals acting on behalf of 5 any foreign person or foreign interest, as 6 part of an effort to coerce the civilian pop- 7 ulation of the United States or to influence 8 the policy or affect the conduct of the 9 United States Government by coercion. 10 11 12 (B) LIMITATION.—No act shall be certified by the Secretary as an act of terrorism if— (i) the act is committed as part of the 13 course of a war declared by the Congress, 14 except that this clause shall not apply with 15 respect to any coverage for workers’ com- 16 pensation; or 17 (ii) property and casualty insurance 18 losses resulting from the act, in the aggre- 19 gate, do not exceed $5,000,000. 20 (C) DETERMINATIONS FINAL.—Any certifi- 21 cation of, or determination not to certify, an act 22 as an act of terrorism under this paragraph 23 shall be final, and shall not be subject to judi- 24 cial review. November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000009 S.L.C. O:\AYO\AYO02.952 6 1 (D) NONDELEGATION.—The Secretary 2 may not delegate or designate to any other offi- 3 cer, employee, or person, any determination 4 under this paragraph of whether, during the ef- 5 fective period of the Program, an act of ter- 6 rorism has occurred. 7 (2) AFFILIATE.—The term ‘‘affiliate’’ means, 8 with respect to an insurer, any entity that controls, 9 is controlled by, or is under common control with the 10 11 12 insurer. (3) CONTROL.—An entity has ‘‘control’’ over another entity, if— 13 (A) the entity directly or indirectly or act- 14 ing through 1 or more other persons owns, con- 15 trols, or has power to vote 25 percent or more 16 of any class of voting securities of the other en- 17 tity; 18 (B) the entity controls in any manner the 19 election of a majority of the directors or trust- 20 ees of the other entity; or 21 (C) the Secretary determines, after notice 22 and opportunity for hearing, that the entity di- 23 rectly or indirectly exercises a controlling influ- 24 ence over the management or policies of the 25 other entity. November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000010 S.L.C. O:\AYO\AYO02.952 7 1 (4) DIRECT EARNED PREMIUM.—The term ‘‘di- 2 rect earned premium’’ means a direct earned pre- 3 mium for property and casualty insurance issued by 4 any insurer for insurance against losses occurring at 5 the locations described in subparagraphs (A) and 6 (B) of paragraph (5). 7 (5) INSURED LOSS.—The term ‘‘insured loss’’ 8 means any loss resulting from an act of terrorism 9 (including an act of war, in the case of workers’ 10 compensation) that is covered by primary or excess 11 property and casualty insurance issued by an insurer 12 if such loss— 13 (A) occurs within the United States; or 14 (B) occurs to an air carrier (as defined in 15 section 40102 of title 49, United States Code), 16 to a United States flag vessel (or a vessel based 17 principally in the United States, on which 18 United States income tax is paid and whose in- 19 surance coverage is subject to regulation in the 20 United States), regardless of where the loss oc- 21 curs, or at the premises of any United States 22 mission. 23 (6) INSURER.—The term ‘‘insurer’’ means any 24 25 November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 entity, including any affiliate thereof— (A) that is— 18-1620-B-000011 S.L.C. O:\AYO\AYO02.952 8 1 (i) licensed or admitted to engage in 2 the business of providing primary or excess 3 insurance in any State; 4 (ii) not licensed or admitted as de- 5 scribed in clause (i), if it is an eligible sur- 6 plus line carrier listed on the Quarterly 7 Listing of Alien Insurers of the NAIC, or 8 any successor thereto; 9 (iii) approved for the purpose of offer- 10 ing property and casualty insurance by a 11 Federal agency in connection with mari- 12 time, energy, or aviation activity; 13 (iv) a State residual market insurance 14 entity or State workers’ compensation 15 fund; or 16 (v) any other entity described in sec- 17 tion 103(f), to the extent provided in the 18 rules of the Secretary issued under section 19 103(f); 20 (B) that receives direct earned premiums 21 for any type of commercial property and cas- 22 ualty insurance coverage, other than in the case 23 of entities described in sections 103(d) and 24 103(f); and November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000012 S.L.C. O:\AYO\AYO02.952 9 1 (C) that meets any other criteria that the 2 Secretary may reasonably prescribe. 3 (7) INSURER 4 deductible’’ means— 5 DEDUCTIBLE .—The term ‘‘insurer (A) for the Transition Period, the value of 6 an insurer’s direct earned premiums over the 7 calendar year immediately preceding the date of 8 enactment of this Act, multiplied by 1 percent; 9 (B) for Program Year 1, the value of an 10 insurer’s direct earned premiums over the cal- 11 endar year immediately preceding Program 12 Year 1, multiplied by 7 percent; 13 (C) for Program Year 2, the value of an 14 insurer’s direct earned premiums over the cal- 15 endar year immediately preceding Program 16 Year 2, multiplied by 10 percent; 17 (D) for Program Year 3, the value of an 18 insurer’s direct earned premiums over the cal- 19 endar year immediately preceding Program 20 Year 3, multiplied by 15 percent; and 21 (E) notwithstanding subparagraphs (A) 22 through (D), for the Transition Period, Pro- 23 gram Year 1, Program Year 2, or Program 24 Year 3, if an insurer has not had a full year of 25 operations during the calendar year imme- November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000013 S.L.C. O:\AYO\AYO02.952 10 1 diately preceding such Period or Program Year, 2 such portion of the direct earned premiums of 3 the insurer as the Secretary determines appro- 4 priate, subject to appropriate methodologies es- 5 tablished by the Secretary for measuring such 6 direct earned premiums. 7 (8) NAIC.—The term ‘‘NAIC’’ means the Na- 8 tional Association of Insurance Commissioners. 9 (9) PERSON.—The term ‘‘person’’ means any 10 individual, business or nonprofit entity (including 11 those organized in the form of a partnership, limited 12 liability company, corporation, or association), trust 13 or estate, or a State or political subdivision of a 14 State or other governmental unit. 15 (10) PROGRAM.—The term ‘‘Program’’ means 16 the Terrorism Insurance Program established by 17 this title. 18 19 (11) PROGRAM (A) YEARS.— TRANSITION PERIOD.—The term 20 ‘‘Transition Period’’ means the period begin- 21 ning on the date of enactment of this Act and 22 ending on December 31, 2002. 23 24 November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 (B) PROGRAM YEAR 1.—The term ‘‘Pro- gram Year 1’’ means the period beginning on 18-1620-B-000014 S.L.C. O:\AYO\AYO02.952 11 1 January 1, 2003 and ending on December 31, 2 2003. 3 (C) PROGRAM YEAR 2.—The term ‘‘Pro- 4 gram Year 2’’ means the period beginning on 5 January 1, 2004 and ending on December 31, 6 2004. 7 (D) PROGRAM YEAR 3 .—The term ‘‘Pro- 8 gram Year 3’’ means the period beginning on 9 January 1, 2005 and ending on December 31, 10 2005. 11 (12) PROPERTY 12 13 AND CASUALTY INSURANCE.— The term ‘‘property and casualty insurance’’— (A) means commercial lines of property 14 and casualty insurance, including excess insur- 15 ance, workers’ compensation insurance, and 16 surety insurance; and 17 18 (B) does not include— (i) Federal crop insurance issued or 19 reinsured under the Federal Crop Insur- 20 ance Act (7 U.S.C. 1501 et seq.), or any 21 other type of crop or livestock insurance 22 that is privately issued or reinsured; 23 (ii) private mortgage insurance (as 24 that term is defined in section 2 of the November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000015 S.L.C. O:\AYO\AYO02.952 12 1 Homeowners Protection Act of 1998 (12 2 U.S.C. 4901)) or title insurance; (iii) 3 financial guaranty insurance 4 issued by monoline financial guaranty in- 5 surance corporations; 6 (iv) insurance for medical malpractice; 7 (v) health or life insurance, including group life insurance; 8 9 (vi) flood insurance provided under 10 the National Flood Insurance Act of 1968 11 (42 U.S.C. 4001 et seq.); or (vii) reinsurance or retrocessional re- 12 insurance. 13 14 15 (13) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of the Treasury. 16 (14) STATE.—The term ‘‘State’’ means any 17 State of the United States, the District of Columbia, 18 the Commonwealth of Puerto Rico, the Common- 19 wealth of the Northern Mariana Islands, American 20 Samoa, Guam, each of the United States Virgin Is- 21 lands, and any territory or possession of the United 22 States. 23 (15) UNITED STATES.—The term ‘‘United 24 States’’ means the several States, and includes the 25 territorial sea and the continental shelf of the November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000016 S.L.C. O:\AYO\AYO02.952 13 1 United States, as those terms are defined in the Vio- 2 lent Crime Control and Law Enforcement Act of 3 1994 (18 U.S.C. 2280, 2281). 4 (16) RULE OF CONSTRUCTION FOR DATES.— 5 With respect to any reference to a date in this title, 6 such day shall be construed— 7 8 9 (A) to begin at 12:01 a.m. on that date; and (B) to end at midnight on that date. 10 SEC. 103. TERRORISM INSURANCE PROGRAM. 11 12 (a) E STABLISHMENT OF PROGRAM.— (1) IN GENERAL.—There is established in the 13 Department of the Treasury the Terrorism Insur- 14 ance Program. 15 (2) AUTHORITY OF THE SECRETARY.—Notwith- 16 standing any other provision of State or Federal 17 law, the Secretary shall administer the Program, 18 and shall pay the Federal share of compensation for 19 insured losses in accordance with subsection (e). 20 (3) MANDATORY PARTICIPATION.—Each entity 21 that meets the definition of an insurer under this 22 title shall participate in the Program. 23 (b) CONDITIONS 24 November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 FOR FEDERAL PAYMENTS.—No payment may be made by the Secretary under this section 18-1620-B-000017 S.L.C. O:\AYO\AYO02.952 14 1 with respect to an insured loss that is covered by an in- 2 surer, unless— 3 (1) the person that suffers the insured loss, or 4 a person acting on behalf of that person, files a 5 claim with the insurer; 6 (2) the insurer provides clear and conspicuous 7 disclosure to the policyholder of the premium 8 charged for insured losses covered by the Program 9 and the Federal share of compensation for insured 10 losses under the Program— 11 (A) in the case of any policy that is issued 12 before the date of enactment of this Act, not 13 later than 90 days after that date of enactment; 14 (B) in the case of any policy that is issued 15 within 90 days of the date of enactment of this 16 Act, at the time of offer, purchase, and renewal 17 of the policy; and 18 (C) in the case of any policy that is issued 19 more than 90 days after the date of enactment 20 of this Act, on a separate line item in the pol- 21 icy, at the time of offer, purchase, and renewal 22 of the policy; 23 (3) the insurer processes the claim for the in- 24 November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 sured loss in accordance with appropriate business 18-1620-B-000018 S.L.C. O:\AYO\AYO02.952 15 1 practices, and any reasonable procedures that the 2 Secretary may prescribe; and 3 (4) the insurer submits to the Secretary, in ac- 4 cordance with such reasonable procedures as the 5 Secretary may establish— 6 (A) a claim for payment of the Federal 7 share of compensation for insured losses under 8 the Program; 9 (B) written certification— 10 (i) of the underlying claim; and 11 (ii) of all payments made for insured 12 losses; and 13 (C) certification of its compliance with the 14 15 16 provisions of this subsection. (c) MANDATORY AVAILABILITY.— (1) INITIAL PROGRAM PERIODS.—During the 17 period beginning on the first day of the Transition 18 Period and ending on the last day of Program Year 19 2, each entity that meets the definition of an insurer 20 under section 102— 21 (A) shall make available, in all of its prop- 22 erty and casualty insurance policies, coverage 23 for insured losses; and 24 25 November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 (B) shall make available property and casualty insurance coverage for insured losses that 18-1620-B-000019 S.L.C. O:\AYO\AYO02.952 16 1 does not differ materially from the terms, 2 amounts, and other coverage limitations appli- 3 cable to losses arising from events other than 4 acts of terrorism. 5 (2) PROGRAM YEAR 3 .—Not later than Sep- 6 tember 1, 2004, the Secretary shall, based on the 7 factors referred to in section 108(d)(1), determine 8 whether the provisions of subparagraphs (A) and 9 (B) of paragraph (1) should be extended through 10 Program Year 3. 11 (d) STATE RESIDUAL MARKET INSURANCE E NTI- 12 TIES.— 13 (1) IN GENERAL.—The Secretary shall issue 14 regulations, as soon as practicable after the date of 15 enactment of this Act, that apply the provisions of 16 this title to State residual market insurance entities 17 and State workers’ compensation funds. 18 (2) TREATMENT OF CERTAIN ENTITIES.—For 19 purposes of the regulations issued pursuant to para- 20 graph (1)— 21 (A) a State residual market insurance enti- 22 ty that does not share its profits and losses 23 with private sector insurers shall be treated as 24 a separate insurer; and November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000020 S.L.C. O:\AYO\AYO02.952 17 1 (B) a State residual market insurance enti- 2 ty that shares its profits and losses with private 3 sector insurers shall not be treated as a sepa- 4 rate insurer, and shall report to each private 5 sector insurance participant its share of the in- 6 sured losses of the entity, which shall be in- 7 cluded in each private sector insurer’s insured 8 losses. 9 (3) TREATMENT OF PARTICIPATION IN CERTAIN 10 ENTITIES.—Any 11 profits and losses of a State residual market insur- 12 ance entity shall include in its calculations of pre- 13 miums any premiums distributed to the insurer by 14 the State residual market insurance entity. 15 (e) INSURED LOSS SHARED COMPENSATION.— 16 17 insurer that participates in sharing (1) FEDERAL (A) IN SHARE.— GENERAL.—The Federal share of 18 compensation under the Program to be paid by 19 the Secretary for insured losses of an insurer 20 during the Transition Period and each Program 21 Year shall be equal to 90 percent of that por- 22 tion of the amount of such insured losses that 23 exceeds the applicable insurer deductible re- 24 quired to be paid during such Transition Period 25 or such Program Year. November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000021 S.L.C. O:\AYO\AYO02.952 18 1 (B) PROHIBITION ON DUPLICATIVE COM- 2 PENSATION.—The 3 tion for insured losses under the Program shall 4 be reduced by the amount of compensation pro- 5 vided by the Federal Government to any person 6 under any other Federal program for those in- 7 sured losses. 8 (2) CAP 9 Federal share of compensa- ON ANNUAL LIABILITY.— (A) IN GENERAL.—Notwithstanding para- 10 graph (1) or any other provision of Federal or 11 State law, if the aggregate insured losses exceed 12 $100,000,000,000, during the period beginning 13 on the first day of the Transition Period and 14 ending on the last day of Program Year 1, or 15 during Program Year 2 or Program Year 3 16 (until such time as the Congress may act other- 17 wise with respect to such losses)— 18 (i) the Secretary shall not make any 19 payment under this title for any portion of 20 the amount of such losses that exceeds 21 $100,000,000,000; and 22 (ii) no insurer that has met its insurer 23 deductible shall be liable for the payment 24 of any portion of that amount that exceeds 25 $100,000,000,000. November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000022 S.L.C. O:\AYO\AYO02.952 19 1 SHARE.—For (B) INSURER purposes of 2 subparagraph (A), the Secretary shall deter- 3 mine the pro rata share of insured losses to be 4 paid by each insurer that incurs insured losses 5 under the Program. 6 (3) NOTICE TO CONGRESS.—The Secretary 7 shall notify the Congress if estimated or actual ag- 8 gregate insured losses exceed $100,000,000,000 dur- 9 ing the period beginning on the first day of the 10 Transition Period and ending on the last day of Pro- 11 gram Year 1, or during Program Year 2 or Program 12 Year 3, and the Congress shall determine the proce- 13 dures for and the source of any payments for such 14 excess insured losses. 15 (4) FINAL NETTING.—The Secretary shall have 16 sole discretion to determine the time at which claims 17 relating to any insured loss or act of terrorism shall 18 become final. 19 (5) DETERMINATIONS FINAL.—Any determina- 20 tion of the Secretary under this subsection shall be 21 final, unless expressly provided, and shall not be 22 subject to judicial review. 23 (6) INSURANCE 24 TENTION AMOUNT.—For November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 MARKETPLACE AGGREGATE RE- purposes of paragraph (7), 18-1620-B-000023 S.L.C. O:\AYO\AYO02.952 20 1 the insurance marketplace 2 amount shall be— aggregate retention 3 (A) for the period beginning on the first 4 day of the Transition Period and ending on the 5 last day of Program Year 1, the lesser of— 6 (i) $10,000,000,000; and 7 (ii) the aggregate amount, for all in- 8 surers, of insured losses during such pe- 9 riod; 10 (B) for Program Year 2, the lesser of— 11 (i) $12,500,000,000; and 12 (ii) the aggregate amount, for all in- 13 surers, of insured losses during such Pro- 14 gram Year; and 15 (C) for Program Year 3, the lesser of— 16 (i) $15,000,000,000; and 17 (ii) the aggregate amount, for all in- 18 surers, of insured losses during such Pro- 19 gram Year. 20 21 (7) RECOUPMENT OF FEDERAL SHARE .— (A) MANDATORY RECOUPMENT AMOUNT.— 22 For purposes of this paragraph, the mandatory 23 recoupment amount for each of the periods re- 24 ferred to in subparagraphs (A), (B), and (C) of 25 paragraph (6) shall be the difference between— November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000024 S.L.C. O:\AYO\AYO02.952 21 1 (i) the insurance marketplace aggre- 2 gate retention amount under paragraph 3 (6) for such period; and 4 (ii) the aggregate amount, for all in- 5 surers, of insured losses during such period 6 that are not compensated by the Federal 7 Government because such losses— (I) are within the insurer deduct- 8 9 10 ible for the insurer subject to the losses; or 11 (II) are within the portion of 12 losses of the insurer that exceed the 13 insurer deductible, but are not com- 14 pensated pursuant to paragraph (1). 15 (B) NO MANDATORY RECOUPMENT IF UN- 16 COMPENSATED LOSSES 17 MARKETPLACE RETENTION.—Notwithstanding 18 subparagraph (A), if the aggregate amount of 19 uncompensated insured losses referred to in 20 clause (ii) of such subparagraph for any period 21 referred to in subparagraph (A), (B), or (C) of 22 paragraph (6) is greater than the insurance 23 marketplace aggregate retention amount under 24 paragraph (6) for such period, the mandatory 25 recoupment amount shall be $0. November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 EXCEED INSURANCE 18-1620-B-000025 S.L.C. O:\AYO\AYO02.952 22 1 (C) MANDATORY ESTABLISHMENT OF SUR- 2 CHARGES 3 RECOUPMENT 4 collect, for repayment of the Federal financial 5 assistance provided in connection with all acts 6 of terrorism (or acts of war, in the case of 7 workers compensation) occurring during any of 8 the periods referred to in subparagraph (A), 9 (B), or (C) of paragraph (6), terrorism loss 10 risk-spreading premiums in an amount equal to 11 any mandatory recoupment amount for such pe- 12 riod. 13 TO RECOUP MANDATORY AMOUNT.—The Secretary shall (D) DISCRETIONARY RECOUPMENT OF RE- 14 MAINDER OF FINANCIAL ASSISTANCE .—To 15 extent that the amount of Federal financial as- 16 sistance 17 recoupment amount, the Secretary may recoup, 18 through terrorism loss risk-spreading pre- 19 miums, such additional amounts that the Sec- 20 retary believes can be recouped, based on— 21 22 provided exceeds any the mandatory (i) the ultimate costs to taxpayers of no additional recoupment; 23 (ii) the economic conditions in the 24 commercial marketplace, including the cap- 25 italization, profitability, and investment re- November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000026 S.L.C. O:\AYO\AYO02.952 23 1 turns of the insurance industry and the 2 current cycle of the insurance markets; 3 (iii) the affordability of commercial in- 4 surance for small- and medium-sized busi- 5 nesses; and (iv) such other factors as the Sec- 6 7 8 9 10 retary considers appropriate. (8) POLICY SURCHARGE FOR TERRORISM LOSS RISK-SPREADING PREMIUMS.— (A) POLICYHOLDER PREMIUM.—Any 11 amount established by the Secretary as a ter- 12 rorism loss risk-spreading premium shall— 13 (i) be imposed as a policyholder pre- 14 mium surcharge on property and casualty 15 insurance policies in force after the date of 16 such establishment; 17 (ii) begin with such period of coverage 18 during the year as the Secretary deter- 19 mines appropriate; and 20 (iii) be based on a percentage of the 21 premium amount charged for property and 22 casualty insurance coverage under the pol- 23 icy. 24 (B) COLLECTION.—The Secretary shall 25 provide for insurers to collect terrorism loss November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000027 S.L.C. O:\AYO\AYO02.952 24 1 risk-spreading 2 amounts collected to the Secretary. 3 premiums (C) PERCENTAGE and remit LIMITATION.—A such ter- 4 rorism loss risk-spreading premium (including 5 any additional amount included in such pre- 6 mium on a discretionary basis pursuant to 7 paragraph (7)(D)) may not exceed, on an an- 8 nual basis, the amount equal to 3 percent of the 9 premium charged for property and casualty in- 10 11 surance coverage under the policy. (D) ADJUSTMENT FOR URBAN AND SMALL- 12 ER COMMERCIAL AND RURAL AREAS AND DIF- 13 FERENT LINES OF INSURANCE .— 14 (i) ADJUSTMENTS.—In determining 15 the method and manner of imposing ter- 16 rorism loss risk-spreading premiums, in- 17 cluding the amount of such premiums, the 18 Secretary shall take into consideration— 19 (I) the economic impact on com- 20 mercial centers of urban areas, includ- 21 ing the effect on commercial rents and 22 commercial insurance premiums, par- 23 ticularly rents and premiums charged 24 to small businesses, and the avail- November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000028 S.L.C. O:\AYO\AYO02.952 25 1 ability of lease space and commercial 2 insurance within urban areas; 3 (II) the risk factors related to 4 rural areas and smaller commercial 5 centers, including the potential expo- 6 sure to loss and the likely magnitude 7 of such loss, as well as any resulting 8 cross-subsidization that might result; 9 and 10 (III) the various exposures to ter- 11 rorism risk for different lines of insur- 12 ance. 13 (ii) RECOUPMENT mandatory ADJUST- OF 14 MENTS.—Any recoupment 15 amounts not collected by the Secretary be- 16 cause of adjustments under this subpara- 17 graph shall be recouped through additional 18 terrorism loss risk-spreading premiums. 19 (E) TIMING OF PREMIUMS.—The Secretary 20 may adjust the timing of terrorism loss risk- 21 spreading premiums to provide for equivalent 22 application of the provisions of this title to poli- 23 cies that are not based on a calendar year, or 24 to apply such provisions on a daily, monthly, or 25 quarterly basis, as appropriate. November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000029 S.L.C. O:\AYO\AYO02.952 26 1 (f) CAPTIVE INSURERS 2 ANCE AND OTHER SELF-INSUR- ARRANGEMENTS.—The Secretary may, in consulta- 3 tion with the NAIC or the appropriate State regulatory 4 authority, apply the provisions of this title, as appropriate, 5 to other classes or types of captive insurers and other self- 6 insurance arrangements by municipalities and other enti- 7 ties (such as workers’ compensation self-insurance pro- 8 grams and State workers’ compensation reinsurance 9 pools), but only if such application is determined before 10 the occurrence of an act of terrorism in which such an 11 entity incurs an insured loss and all of the provisions of 12 this title are applied comparably to such entities. 13 14 (g) REINSURANCE TO (1) OBTAINING COVER E XPOSURE.— COVERAGE.—This title may not 15 be construed to limit or prevent insurers from ob- 16 taining reinsurance coverage for insurer deductibles 17 or insured losses retained by insurers pursuant to 18 this section, nor shall the obtaining of such coverage 19 affect the calculation of such deductibles or reten- 20 tions. 21 (2) LIMITATION ON FINANCIAL ASSISTANCE .— 22 The amount of financial assistance provided pursu- 23 ant to this section shall not be reduced by reinsur- 24 ance paid or payable to an insurer from other 25 sources, except that recoveries from such other November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000030 S.L.C. O:\AYO\AYO02.952 27 1 sources, taken together with financial assistance for 2 the Transition Period or a Program Year provided 3 pursuant to this section, may not exceed the aggre- 4 gate amount of the insurer’s insured losses for such 5 period. If such recoveries and financial assistance for 6 the Transition Period or a Program Year exceed 7 such aggregate amount of insured losses for that pe- 8 riod and there is no agreement between the insurer 9 and any reinsurer to the contrary, an amount in ex- 10 cess of such aggregate insured losses shall be re- 11 turned to the Secretary. 12 (h) GROUP LIFE INSURANCE STUDY.— 13 (1) STUDY.—The Secretary shall study, on an 14 expedited basis, whether adequate and affordable ca- 15 tastrophe reinsurance for acts of terrorism is avail- 16 able to life insurers in the United States that issue 17 group life insurance, and the extent to which the 18 threat of terrorism is reducing the availability of 19 group life insurance coverage for consumers in the 20 United States. 21 (2) CONDITIONAL COVERAGE.—To the extent 22 that the Secretary determines that such coverage is 23 not or will not be reasonably available to both such 24 insurers and consumers, the Secretary shall, in con- 25 sultation with the NAIC— November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000031 S.L.C. O:\AYO\AYO02.952 28 (A) apply the provisions of this title, as ap- 1 2 propriate, to providers of group life insurance; 3 and (B) provide such restrictions, limitations, 4 5 or conditions with respect to any financial as- 6 sistance provided that the Secretary deems ap- 7 propriate, based on the study under paragraph 8 (1). 9 (i) STUDY AND REPORT.— (1) STUDY.—The Secretary, after consultation 10 11 with the NAIC, representatives of the insurance in- 12 dustry, and other experts in the insurance field, 13 shall conduct a study of the potential effects of acts 14 of terrorism on the availability of life insurance and 15 other lines of insurance coverage, including personal 16 lines. 17 (2) REPORT.—Not later than 9 months after 18 the date of enactment of this Act, the Secretary 19 shall submit a report to the Congress on the results 20 of the study conducted under paragraph (1). 21 SEC. 104. GENERAL AUTHORITY AND ADMINISTRATION OF 22 23 24 the CLAIMS. (a) GENERAL AUTHORITY.—The Secretary shall have powers and authorities necessary to carry out the Pro- 25 gram, November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 including authority— 18-1620-B-000032 S.L.C. O:\AYO\AYO02.952 29 (1) to investigate and audit all claims under the 1 2 Program; and 3 (2) to prescribe regulations and procedures to 4 effectively administer and implement the Program, 5 and to ensure that all insurers and self-insured enti- 6 ties that participate in the Program are treated com- 7 parably under the Program. 8 (b) INTERIM RULES 9 retary AND PROCEDURES.—The Sec- may issue interim final rules or procedures speci- 10 fying the manner in which— 11 (1) insurers may file and certify claims under 12 the Program; 13 (2) the Federal share of compensation for in- 14 sured losses will be paid under the Program, includ- 15 ing payments based on estimates of or actual in- 16 sured losses; 17 (3) the Secretary may, at any time, seek repay- 18 ment from or reimburse any insurer, based on esti- 19 mates of insured losses under the Program, to effec- 20 tuate the insured loss sharing provisions in section 21 103; and 22 (4) the Secretary will determine any final net- 23 ting of payments under the Program, including pay- 24 ments owed to the Federal Government from any in- 25 surer and any Federal share of compensation for in- November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000033 S.L.C. O:\AYO\AYO02.952 30 1 sured losses owed to any insurer, to effectuate the 2 insured loss sharing provisions in section 103. 3 (c) CONSULTATION.—The Secretary shall consult 4 with the NAIC, as the Secretary determines appropriate, 5 concerning the Program. (d) CONTRACTS 6 FOR SERVICES.—The Secretary may 7 employ persons or contract for services as may be nec- 8 essary to implement the Program. 9 (e) CIVIL PENALTIES.— 10 (1) IN GENERAL.—The Secretary may assess a 11 civil monetary penalty in an amount not exceeding 12 the amount under paragraph (2) against any insurer 13 that the Secretary determines, on the record after 14 opportunity for a hearing— 15 (A) has failed to charge, collect, or remit 16 terrorism loss risk-spreading premiums under 17 section 103(e) in accordance with the require- 18 ments of, or regulations issued under, this title; 19 (B) has intentionally provided to the Sec- 20 retary erroneous information regarding pre- 21 mium or loss amounts; 22 23 24 25 November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 (C) submits to the Secretary fraudulent claims under the Program for insured losses; (D) has failed to provide the disclosures required under subsection (f); or 18-1620-B-000034 S.L.C. O:\AYO\AYO02.952 31 1 (E) has otherwise failed to comply with the 2 provisions of, or the regulations issued under, 3 this title. 4 (2) AMOUNT.—The amount under this para- 5 graph is the greater of $1,000,000 and, in the case 6 of any failure to pay, charge, collect, or remit 7 amounts in accordance with this title or the regula- 8 tions issued under this title, such amount in dispute. 9 (3) RECOVERY OF AMOUNT IN DISPUTE .—A 10 penalty under this subsection for any failure to pay, 11 charge, collect, or remit amounts in accordance with 12 this title or the regulations under this title shall be 13 in addition to any such amounts recovered by the 14 Secretary. 15 (f) SUBMISSION OF PREMIUM INFORMATION.— 16 (1) IN GENERAL.—The Secretary shall annually 17 compile information on the terrorism risk insurance 18 premium rates of insurers for the preceding year. 19 (2) ACCESS TO INFORMATION.—To the extent 20 that such information is not otherwise available to 21 the Secretary, the Secretary may require each in- 22 surer to submit to the NAIC terrorism risk insur- 23 ance premium rates, as necessary to carry out para- 24 graph (1), and the NAIC shall make such informa- 25 tion available to the Secretary. November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000035 S.L.C. O:\AYO\AYO02.952 32 (3) AVAILABILITY 1 TO CONGRESS . —The Sec- 2 retary shall make information compiled under this 3 subsection available to the Congress, upon request. 4 (g) FUNDING.— (1) FEDERAL 5 PAYMENTS.—There are hereby 6 appropriated, out of funds in the Treasury not oth- 7 erwise appropriated, such sums as may be necessary 8 to pay the Federal share of compensation for in- 9 sured losses under the Program. (2) ADMINISTRATIVE 10 EXPENSES.—There are 11 hereby appropriated, out of funds in the Treasury 12 not otherwise appropriated, such sums as may be 13 necessary to pay reasonable costs of administering 14 the Program. 15 SEC. 105. PREEMPTION AND NULLIFICATION OF PRE-EXIST16 ING TERRORISM EXCLUSIONS. 17 (a) GENERAL NULLIFICATION.—Any terrorism exclu- 18 sion in a contract for property and casualty insurance that 19 is in force on the date of enactment of this Act shall be 20 void to the extent that it excludes losses that would other- 21 wise be insured losses. 22 (b) GENERAL PREEMPTION.—Any State approval of 23 any terrorism exclusion from a contract for property and 24 casualty November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 insurance that is in force on the date of enact- 18-1620-B-000036 S.L.C. O:\AYO\AYO02.952 33 1 ment of this Act, shall be void to the extent that it ex- 2 cludes losses that would otherwise be insured losses. (c) REINSTATEMENT 3 4 Notwithstanding 5 of State 6 sion 7 is TERRORISM EXCLUSIONS.— subsections (a) and (b) or any provision law, an insurer may reinstate a preexisting provi- in a contract for property and casualty insurance that in force on the date of enactment of this Act and that 8 excludes 9 OF coverage for an act of terrorism only— (1) if the insurer has received a written state- 10 ment from the insured that affirmatively authorizes 11 such reinstatement; or 12 (2) if— 13 (A) the insured fails to pay any increased 14 premium charged by the insurer for providing 15 such terrorism coverage; and 16 17 18 19 20 (B) the insurer provided notice, at least 30 days before any such reinstatement, of— (i) the increased premium for such terrorism coverage; and (ii) the rights of the insured with re- 21 spect to such coverage, including any date 22 upon which the exclusion would be rein- 23 stated if no payment is received. November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000037 S.L.C. O:\AYO\AYO02.952 34 1 SEC. 106. PRESERVATION PROVISIONS. 2 3 the (a) STATE LAW.—Nothing in this title shall affect jurisdiction or regulatory authority of the insurance 4 commissioner 5 functions) 6 7 8 9 (or any agency or office performing like of any State over any insurer or other person— (1) except as specifically provided in this title; and (2) except that— (A) the definition of the term ‘‘act of ter- 10 rorism’’ in section 102 shall be the exclusive 11 definition of that term for purposes of com- 12 pensation for insured losses under this title, 13 and shall preempt any provision of State law 14 that is inconsistent with that definition, to the 15 extent that such provision of law would other- 16 wise apply to any type of insurance covered by 17 this title; 18 (B) during the period beginning on the 19 date of enactment of this Act and ending on 20 December 31, 2003, rates and forms for ter- 21 rorism risk insurance covered by this title and 22 filed with any State shall not be subject to prior 23 approval or a waiting period under any law of 24 a State that would otherwise be applicable, ex- 25 cept that nothing in this title affects the ability 26 of any State to invalidate a rate as excessive, November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000038 S.L.C. O:\AYO\AYO02.952 35 1 inadequate, or unfairly discriminatory, and, 2 with respect to forms, where a State has prior 3 approval authority, it shall apply to allow subse- 4 quent review of such forms; and 5 (C) during the period beginning on the 6 date of enactment of this Act and for so long 7 as the Program is in effect, as provided in sec- 8 tion 108, including authority in subsection 9 108(b), books and records of any insurer that 10 are relevant to the Program shall be provided, 11 or caused to be provided, to the Secretary, upon 12 request by the Secretary, notwithstanding any 13 provision of the laws of any State prohibiting or 14 limiting such access. 15 (b) E XISTING REINSURANCE AGREEMENTS.—Noth- 16 ing in this title shall be construed to alter, amend, or ex- 17 pand the terms of coverage under any reinsurance agree- 18 ment in effect on the date of enactment of this Act. The 19 terms and conditions of such an agreement shall be deter- 20 mined by the language of that agreement. 21 SEC. 107. LITIGATION MANAGEMENT. 22 23 (a) PROCEDURES AND DAMAGES.— (1) IN GENERAL.—If the Secretary makes a de- 24 termination pursuant to section 102 that an act of 25 terrorism has occurred, there shall exist a Federal November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000039 S.L.C. O:\AYO\AYO02.952 36 1 cause of action for property damage, personal injury, 2 or death arising out of or resulting from such act of 3 terrorism, which shall be the exclusive cause of ac- 4 tion and remedy for claims for property damage, 5 personal injury, or death arising out of or relating 6 to such act of terrorism, except as provided in sub- 7 section (b). 8 (2) PREEMPTION OF STATE ACTIONS.—All 9 State causes of action of any kind for property dam- 10 age, personal injury, or death arising out of or re- 11 sulting from an act of terrorism that are otherwise 12 available under State law are hereby preempted, ex- 13 cept as provided in subsection (b). 14 (3) SUBSTANTIVE LAW.—The substantive law 15 for decision in any such action described in para- 16 graph (1) shall be derived from the law, including 17 choice of law principles, of the State in which such 18 act of terrorism occurred, unless such law is other- 19 wise inconsistent with or preempted by Federal law. 20 (4) JURISDICTION.—For each determination de- 21 scribed in paragraph (1), not later than 90 days 22 after the occurrence of an act of terrorism, the Judi- 23 cial Panel on Multidistrict Litigation shall designate 24 1 district court or, if necessary, multiple district 25 courts of the United States that shall have original November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000040 S.L.C. O:\AYO\AYO02.952 37 1 and exclusive jurisdiction over all actions for any 2 claim (including any claim for loss of property, per- 3 sonal injury, or death) relating to or arising out of 4 an act of terrorism subject to this section. The Judi- 5 cial Panel on Multidistrict Litigation shall select and 6 assign the district court or courts based on the con- 7 venience of the parties and the just and efficient 8 conduct of the proceedings. For purposes of personal 9 jurisdiction, the district court or courts designated 10 by the Judicial Panel on Multidistrict Litigation 11 shall be deemed to sit in all judicial districts in the 12 United States. (5) PUNITIVE 13 DAMAGES.—Any amounts award- 14 ed in an action under paragraph (1) that are attrib- 15 utable to punitive damages shall not count as in- 16 sured losses for purposes of this title. 17 (b) EXCLUSION.—Nothing in this section shall in any 18 way limit the liability of any government, an organization, 19 or person who knowingly participates in, conspires to com- 20 mit, aids and abets, or commits any act of terrorism with 21 respect 22 (a)(1) 23 24 shall November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 to which a determination described in subsection was made. (c) RIGHT OF SUBROGATION.—The United States have the right of subrogation with respect to any 18-1620-B-000041 S.L.C. O:\AYO\AYO02.952 38 1 payment or claim paid by the United States under this 2 title. 3 4 5 6 (d) RELATIONSHIP TO OTHER L AW.—Nothing in this section shall be construed to affect— (1) any party’s contractual right to arbitrate a dispute; or 7 (2) any provision of the Air Transportation 8 Safety and System Stabilization Act (Public Law 9 107–42; 49 U.S.C. 40101 note.). 10 (e) EFFECTIVE PERIOD.—This section shall apply 11 only to actions described in subsection (a)(1) that arise 12 out of or result from acts of terrorism that occur or oc- 13 curred during the effective period of the Program. 14 SEC. 108. TERMINATION OF PROGRAM. 15 (a) TERMINATION OF PROGRAM.—The Program shall 16 terminate on December 31, 2005. 17 (b) CONTINUING AUTHORITY TO PAY OR ADJUST 18 COMPENSATION.—Following the termination of the Pro- 19 gram, the Secretary may take such actions as may be nec- 20 essary to ensure payment, recoupment, reimbursement, or 21 adjustment of compensation for insured losses arising out 22 of any act of terrorism occurring during the period in 23 which the Program was in effect under this title, in ac- 24 cordance with the provisions of section 103 and regula- 25 tions promulgated thereunder. November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000042 S.L.C. O:\AYO\AYO02.952 39 1 (c) REPEAL; SAVINGS CLAUSE.—This title is re- 2 pealed on the final termination date of the Program under 3 subsection (a), except that such repeal shall not be 4 construed— 5 (1) to prevent the Secretary from taking, or 6 causing to be taken, such actions under subsection 7 (b) of this section, paragraph (4), (5), (6), (7), or 8 (8) of section 103(e), or subsection (a)(1), (c), (d), 9 or (e) of section 104, as in effect on the day before 10 the date of such repeal, or applicable regulations 11 promulgated thereunder, during any period in which 12 the authority of the Secretary under subsection (b) 13 of this section is in effect; or 14 (2) to prevent the availability of funding under 15 section 104(g) during any period in which the au- 16 thority of the Secretary under subsection (b) of this 17 section is in effect. 18 (d) STUDY AND REPORT ON THE PROGRAM.— 19 (1) STUDY.—The Secretary, in consultation 20 with the NAIC, representatives of the insurance in- 21 dustry and of policy holders, other experts in the in- 22 surance field, and other experts as needed, shall as- 23 sess the effectiveness of the Program and the likely 24 capacity of the property and casualty insurance in- 25 dustry to offer insurance for terrorism risk after ter- November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000043 S.L.C. O:\AYO\AYO02.952 40 1 mination of the Program, and the availability and 2 affordability of such insurance for various policy- 3 holders, including railroads, trucking, and public 4 transit. 5 (2) REPORT.—The Secretary shall submit a re- 6 port to the Congress on the results of the study con- 7 ducted under paragraph (1) not later than June 30, 8 2005. TITLE II—TREATMENT OF TERRORIST ASSETS 9 10 11 SEC. 201. SATISFACTION OF JUDGMENTS FROM BLOCKED 12 ASSETS OF TERRORISTS, TERRORIST ORGA- 13 NIZATIONS, AND STATE SPONSORS OF TER- 14 RORISM. 15 (a) IN GENERAL.—Notwithstanding any other provi- 16 sion of law, and except as provided in subsection (b), in 17 every case in which a person has obtained a judgment 18 against 19 of a terrorist party on a claim based upon an act terrorism, or for which a terrorist party is not immune 20 under 21 the section 1605(a)(7) of title 28, United States Code, blocked assets of that terrorist party (including the 22 blocked assets of any agency or instrumentality of that 23 terrorist party) shall be subject to execution or attachment 24 in November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 aid of execution in order to satisfy such judgment to 18-1620-B-000044 S.L.C. O:\AYO\AYO02.952 41 1 the extent of any compensatory damages for which such 2 terrorist party has been adjudged liable. 3 4 (b) PRESIDENTIAL WAIVER.— (1) IN GENERAL.—Subject to paragraph (2), 5 upon determining on an asset-by-asset basis that a 6 waiver is necessary in the national security interest, 7 the President may waive the requirements of sub- 8 section (a) in connection with (and prior to the en- 9 forcement of) any judicial order directing attach- 10 ment in aid of execution or execution against any 11 property subject to the Vienna Convention on Diplo- 12 matic Relations or the Vienna Convention on Con- 13 sular Relations. 14 15 16 (2) E XCEPTION.—A waiver under this subsection shall not apply to— (A) property subject to the Vienna Conven- 17 tion on Diplomatic Relations or the Vienna 18 Convention on Consular Relations that has been 19 used by the United States for any nondiplo- 20 matic purpose (including use as rental prop- 21 erty), or the proceeds of such use; or 22 (B) the proceeds of any sale or transfer for 23 value to a third party of any asset subject to 24 the Vienna Convention on Diplomatic Relations November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000045 S.L.C. O:\AYO\AYO02.952 42 1 or the Vienna Convention on Consular Rela- 2 tions. 3 (c) SPECIAL RULE FOR CASES AGAINST IRAN.—Sec- 4 tion 2002 of the Victims of Trafficking and Violence Pro- 5 tection Act of 2000 (Public Law 106–386; 114 Stat. 6 1542), as amended by section 686 of Public Law 107– 7 228, is further amended— 8 (1) in subsection (a)(2)(A)(ii), by striking ‘‘July 9 27, 2000, or January 16, 2002’’ and inserting ‘‘July 10 27, 2000, any other date before October 28, 2000, 11 or January 16, 2002’’; 12 (2) in subsection (b)(2)(B), by inserting after 13 ‘‘the date of enactment of this Act’’ the following: 14 ‘‘(less amounts therein as to which the United 15 States has an interest in subrogation pursuant to 16 subsection (c) arising prior to the date of entry of 17 the judgment or judgments to be satisfied in whole 18 or in part hereunder)’’; 19 (3) by redesignating subsections (d), (e), and 20 (f) as subsections (e), (f), and (g), respectively; and 21 (4) by inserting after subsection (c) the fol- 22 lowing new subsection (d): 23 ‘‘(d) DISTRIBUTION 24 PROCEEDS INADEQUATE 25 COMPENSATORY AWARDS AGAINST IRAN.— November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 OF TO ACCOUNT BALANCES AND SATISFY FULL AMOUNT OF 18-1620-B-000046 S.L.C. O:\AYO\AYO02.952 43 1 2 ‘‘(1) PRIOR JUDGMENTS.— ‘‘(A) IN GENERAL.—In the event that the 3 Secretary determines that 90 percent of the 4 amounts available to be paid under subsection 5 (b)(2) are inadequate to pay the total amount 6 of compensatory damages awarded in judg- 7 ments issued as of the date of the enactment of 8 this subsection in cases identified in subsection 9 (a)(2)(A) with respect to Iran, the Secretary 10 shall, not later than 60 days after such date, 11 make payment from such amounts available to 12 be paid under subsection (b)(2) to each party to 13 which such a judgment has been issued in an 14 amount equal to a share, calculated under sub- 15 paragraph (B), of 90 percent of the amounts 16 available to be paid under subsection (b)(2) 17 that have not been subrogated to the United 18 States under this Act as of the date of enact- 19 ment of this subsection. 20 ‘‘(B) CALCULATION OF PAYMENTS.—The 21 share that is payable to a person under sub- 22 paragraph (A), including any person issued a 23 final judgment as of the date of enactment of 24 this subsection in a suit filed on a date added 25 by the amendment made by section 686 of Pub- November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000047 S.L.C. O:\AYO\AYO02.952 44 1 lic Law 107–228, shall be equal to the propor- 2 tion that the amount of unpaid compensatory 3 damages awarded in a final judgment issued to 4 that person bears to the total amount of all un- 5 paid compensatory damages awarded to all per- 6 sons to whom such judgments have been issued 7 as of the date of enactment of this subsection 8 in cases identified in subsection (a)(2)(A) with 9 respect to Iran. 10 ‘‘(2) SUBSEQUENT 11 ‘‘(A) IN JUDGMENT.— GENERAL.—The Secretary shall 12 pay to any person awarded a final judgment 13 after the date of enactment of this subsection, 14 in the case filed on January 16, 2002, and 15 identified in subsection (a)(2)(A) with respect 16 to Iran, an amount equal to a share, calculated 17 under subparagraph (B), of the balance of the 18 amounts available to be paid under subsection 19 (b)(2) that remain following the disbursement 20 of all payments as provided by paragraph (1). 21 The Secretary shall make such payment not 22 later than 30 days after such judgment is 23 awarded. 24 25 November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 ‘‘(B) CALCULATION OF PAYMENTS.—To the extent that funds are available, the amount 18-1620-B-000048 S.L.C. O:\AYO\AYO02.952 45 1 paid under subparagraph (A) to such person 2 shall be the amount the person would have been 3 paid under paragraph (1) if the person had 4 been awarded the judgment prior to the date of 5 enactment of this subsection. 6 ‘‘(3) ADDITIONAL 7 ‘‘(A) IN PAYMENTS.— GENERAL.—Not later than 30 8 days after the disbursement of all payments 9 under paragraphs (1) and (2), the Secretary 10 shall make an additional payment to each per- 11 son who received a payment under paragraph 12 (1) or (2) in an amount equal to a share, cal- 13 culated under subparagraph (B), of the balance 14 of the amounts available to be paid under sub- 15 section (b)(2) that remain following the dis- 16 bursement of all payments as provided by para- 17 graphs (1) and (2). 18 ‘‘(B) CALCULATION OF PAYMENTS.—The 19 share payable under subparagraph (A) to each 20 such person shall be equal to the proportion 21 that the amount of compensatory damages 22 awarded that person bears to the total amount 23 of all compensatory damages awarded to all 24 persons who received a payment under para- 25 graph (1) or (2). November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000049 S.L.C. O:\AYO\AYO02.952 46 1 ‘‘(4) STATUTORY CONSTRUCTION.—Nothing in 2 this subsection shall bar, or require delay in, en- 3 forcement of any judgment to which this subsection 4 applies under any procedure or against assets other- 5 wise available under this section or under any other 6 provision of law. 7 ‘‘(5) CERTAIN RIGHTS AND CLAIMS NOT RELIN- 8 QUISHED.—Any person receiving less than the full 9 amount of compensatory damages awarded to that 10 party in a judgment to which this subsection applies 11 shall not be required to make the election set forth 12 in subsection (a)(2)(B) or, with respect to subsection 13 (a)(2)(D), the election relating to relinquishment of 14 any right to execute or attach property that is sub- 15 ject to section 1610(f)(1)(A) of title 28, United 16 States Code, except that such person shall be re- 17 quired to relinquish rights set forth— 18 ‘‘(A) in subsection (a)(2)(C); and 19 ‘‘(B) in subsection (a)(2)(D) with respect 20 to enforcement against property that is at issue 21 in claims against the United States before an 22 international tribunal or that is the subject of 23 awards by such tribunal. 24 ‘‘(6) GUIDELINES 25 November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 FOR ESTABLISHING CLAIMS OF A RIGHT TO PAYMENT.—The Secretary may pro- 18-1620-B-000050 S.L.C. O:\AYO\AYO02.952 47 1 mulgate reasonable guidelines through which any 2 person claiming a right to payment under this sec- 3 tion may inform the Secretary of the basis for such 4 claim, including by submitting a certified copy of the 5 final judgment under which such right is claimed 6 and by providing commercially reasonable payment 7 instructions. The Secretary shall take all reasonable 8 steps necessary to ensure, to the maximum extent 9 practicable, that such guidelines shall not operate to 10 delay or interfere with payment under this section.’’. 11 (d) DEFINITIONS.—In this section, the following defi- 12 nitions 13 14 shall apply: (1) ACT term ‘‘act of ter- rorism’’ means— (A) any act or event certified under section 15 16 OF TERRORISM.—The 102(1); or (B) to the extent not covered by subpara- 17 18 graph (A), any terrorist activity (as defined in 19 section 212(a)(3)(B)(iii) of the Immigration 20 and 21 1182(a)(3)(B)(iii))). 22 (2) 23 Nationality BLOCKED Act ASSET.—The (8 U.S.C. term ‘‘blocked asset’’ means— 24 (A) any asset seized or frozen by the 25 United States under section 5(b) of the Trading November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000051 S.L.C. O:\AYO\AYO02.952 48 1 With the Enemy Act (50 U.S.C. App. 5(b)) or 2 under sections 202 and 203 of the International 3 Emergency Economic Powers Act (50 U.S.C. 4 1701; 1702); and 5 6 (B) does not include property that— (i) is subject to a license issued by the 7 United States Government for final pay- 8 ment, transfer, or disposition by or to a 9 person subject to the jurisdiction of the 10 United States in connection with a trans- 11 action for which the issuance of such li- 12 cense has been specifically required by 13 statute other than the International Emer- 14 gency Economic Powers Act (50 U.S.C. 15 1701 et seq.) or the United Nations Par- 16 ticipation Act of 1945 (22 U.S.C. 287 et 17 seq.); or 18 (ii) in the case of property subject to 19 the Vienna Convention on Diplomatic Rela- 20 tions or the Vienna Convention on Con- 21 sular Relations, or that enjoys equivalent 22 privileges and immunities under the law of 23 the United States, is being used exclusively 24 for diplomatic or consular purposes. November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000052 S.L.C. O:\AYO\AYO02.952 49 (3) CERTAIN 1 PROPERTY.—The term ‘‘property 2 subject to the Vienna Convention on Diplomatic Re- 3 lations or the Vienna Convention on Consular Rela- 4 tions’’ and the term ‘‘asset subject to the Vienna 5 Convention on Diplomatic Relations or the Vienna 6 Convention on Consular Relations’’ mean any prop- 7 erty or asset, respectively, the attachment in aid of 8 execution or execution of which would result in a 9 violation of an obligation of the United States under 10 the Vienna Convention on Diplomatic Relations or 11 the Vienna Convention on Consular Relations, as the 12 case may be. (4) TERRORIST 13 PARTY.—The term ‘‘terrorist 14 party’’ means a terrorist, a terrorist organization (as 15 defined in section 212(a)(3)(B)(vi) of the Immigra- 16 tion 17 1182(a)(3)(B)(vi))), or a foreign state designated as 18 a state sponsor of terrorism under section 6(j) of the 19 Export Administration Act of 1979 (50 U.S.C. App. 20 2405(j)) or section 620A of the Foreign Assistance 21 Act of 1961 (22 U.S.C. 2371). November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 and Nationality Act (8 U.S.C. 18-1620-B-000053 S.L.C. O:\AYO\AYO02.952 50 1 2 TITLE III—FEDERAL RESERVE BOARD PROVISIONS 3 SEC. 301. CERTAIN AUTHORITY OF THE BOARD OF GOV4 ERNORS OF THE FEDERAL RESERVE SYSTEM. Section 11 of the Federal Reserve Act (12 U.S.C. 5 6 248) is amended by adding at the end the following new 7 subsection: ‘‘(r)(1) Any action that this Act provides may be 8 9 taken only upon the affirmative vote of 5 members of the 10 Board 11 bers then in office if there are fewer than 5 members in 12 office 13 may be taken upon the unanimous vote of all mem- at the time of the action. ‘‘(2)(A) Any action that the Board is otherwise au- 14 thorized 15 the to take under section 13(3) may be taken upon unanimous vote of all available members then in office, 16 if— 17 18 19 20 21 ‘‘(i) at least 2 members are available and all available members participate in the action; ‘‘(ii) the available members unanimously determine that— ‘‘(I) unusual and exigent circumstances 22 exist and the borrower is unable to secure ade- 23 quate 24 sources; November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 credit accommodations from other 18-1620-B-000054 S.L.C. O:\AYO\AYO02.952 51 1 ‘‘(II) action on the matter is necessary to 2 prevent, correct, or mitigate serious harm to the 3 economy or the stability of the financial system 4 of the United States; 5 ‘‘(III) despite the use of all means avail- 6 able (including all available telephonic, tele- 7 graphic, and other electronic means), the other 8 members of the Board have not been able to be 9 contacted on the matter; and ‘‘(IV) action on the matter is required be- 10 11 fore the number of Board members otherwise 12 required to vote on the matter can be contacted 13 through any available means (including all 14 available telephonic, telegraphic, and other elec- 15 tronic means); and 16 ‘‘(iii) any credit extended by a Federal reserve 17 bank pursuant to such action is payable upon de- 18 mand of the Board. 19 ‘‘(B) The available members of the Board shall docu- 20 ment in writing the determinations required by subpara- 21 graph 22 in the record of the action and in the official minutes of 23 the Board, and copies of such record shall be provided as 24 soon 25 not November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 (A)(ii), and such written findings shall be included as practicable to the members of the Board who were available to participate in the action and to the Chair- 18-1620-B-000055 S.L.C. O:\AYO\AYO02.952 52 1 man of the Committee on Banking, Housing, and Urban 2 Affairs of the Senate and to the Chairman of the Com- 3 mittee on Financial Services of the House of Representa- 4 tives.’’. November 11, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6402-000001 18-1620-B-000056 18-1620-B-000057 Document ID: 0.7.18648.6402-000002 Whelan , M Edward Ill Whelan, M Edward Ill From: Sent: Tuesd ay, November 12, 2002 3:48 PM To: ' Brett_M._Kavanaug h@who.eo p.gov' Subject: RE: final t ext kavanau gh terrorism insurance .wpd Attachments: Here 's a revised ve,rsion. Let me know whether you expect that you'll want me to se nd th e letter t oday. -- -O rigina l Mess a ge--- From: Brett_M._Kavanau gh@who.eo p.gov (mailto:Brett_M._ Kavanaugh@who.eo p.gov] Sent : Tuesd ay, November 12, 2002 3:26 PM To: Whelan , M Edwa rd Ill Subject: RE: final te xt (b) (5) (Embedded image moved "Whelan, M Edward Ill" to file : 11/ 12/ 2002 02:23:50 PM pic03246.pcx) Record Type: Record To: Brett M. Kavanau gh/WHO/ EOP@EOP cc: Subject: RE: final te xt (b) (5) -- -Origina l Mess a ge-18-1620-B-000058 Document ID: 0.7.18648.6416 From: Brett_M._Kavanau gh@who.eop.gov {mailto:Brett_M._Kavanau gh@who.eo p.gov] Sent: Tuesda y, November 12, 2002 3:19 PM To: Whelan , M Edwa rd Ill Subject: RE: final te xt The an swer is no. (Embedded image moved "Whelan , M Edward Ill" to file : 11/ 12/2002 03:16:18 PM pic3 1135.pcx) Record Type: Record To: Brett M. Kavanau gh/WHO/ EOP@EOP cc: Subject: RE: final te xt (b) (5) be yes , th en I think that the language needs some ser ious tweaking. If th e an swer is no, th en I need to (b) (5) make some very minor tweaks to my draft letter (i.e., ). -- -O rigina l Message --- · From: Whelan, M Edward Ill Sent : Tuesd ay, November 12, 2002 3:01 PM To: ' Brett_M._Kavanau gh@who.eo p.gov' Subject: RE: final te xt Please call. I have a ques tion about (b) (5) -- --Origina l Mess a ge---From: Whelan , M Edwa rd Ill Sent: Tuesd ay, November 12, 2002 2:34 PM To: ' Brett_M._ Kavanaugh@who.eo p.gov' Subject: RE: final t e xt VERSIGHT Document ID: 0.7.18648.6416 18-1620-B-000059 Per your sugges tion, I've added a sen tenc e in th e last paragraph. I've also made a few tw eaks t o the (b) (5) language ---Or igina l Message-From: Brett_M._Kavanaugh@ who.eop.gov [mailto:Brett_M._Kavanaugh@who.eop.gov ] Sent: Tuesda y, November 12, 2002 2:01 PM To: Whelan , M Edwa rd Ill Subject: RE:final text yes , maybe (b) (5) {Embedded image moved "Whelan , M Edward Ill" to file: 11/ 12/2002 12:51:36 PM pic30675.pcx ) Record Type: Record To: Brett M. Kavanaugh/WHO/EOP@EOP cc: Subject: RE:final text (b) (5) ---Or igina l Message---From: Brett_M._Kavanau gh@who.eop.gov [mailto:Brett_M._ Kavanaugh@wh o.eop.go v] Sent: Tuesda y, November 12, 2002 1:46 PM To: Whelan, M Edward Ill Subject: RE:final text (b) (5) (b) (5) VERSIGHT Document ID: 0.7.18648.6416 18-1620-B-000060 -· (b) (5) {Embedded image moved "Whelan , M Edward Ill" to file: 11/ 12/2002 10:49:46 AM pic25906.pcx) Record Type: Record To: Brett M. Kavanau gh/WHO/ EOP@EOP cc: Subject: RE:final text The usage that I'm more familiar with would be "conference report on H.R. 3210". {That would distingui sh it from the explanatory statem en t that accompan ies the conference report. ) Any problems with that? I attach a vers ion with only very minor revisions. ----Or igina l Message---From: Brett_M._Kavanaugh@who.eop.gov [mailto:Brett_M._Kavanau gh@who.eop.gov ] Sent: Tuesday , November 12, 2002 10:26 AM To: Whelan , M Edward Ill Subject: RE:final text "conferen ce report to accompany H.R. 3210" {Embedded image moved "Whelan, M Edward Ill" to file: 11/ 12/2002 10:12:41 AM pic22 163.pcx) VERSIGHT Document ID: 0.7.18648.6416 18-1620-B-000061 Record Type: Record To: Brett M. Kavanaugh/W HO/ EOP@EOP cc: Subject: RE:final t ext Here 's a first draft. Please confirm that the underlying bill is still S. 2600. Also, is th ere some: accepted name I can use for the Nov. 11 vers ion? ----Or igina l Message---From: Brett_M._Kavanaugh@ who.eop.gov {mailto:Brett_M._Kavanaugh@ who.eop .gov] duplicate VERSIGHT Document ID: 0.7.18648.6416 18-1620-B-000062 duplicate 18-1620-B-000063 Document ID: 01186486416 Whelan , M Edward Ill From: Whelan, M Edwa rd Ill Sent: Wed nesd ay, Novem ber 27, 2002 9 :59 AM To: ' Brett_ M._ Kavanaug h@wh o.eo p.gov' Subject: RE: US Code (b) (5) (b) (5) OLC opinion below, our pre liminary view is -- -O rigina l Mess a ge--- From: Whelan , M E-d wa rd Ill Sent: Tuesd ay, November 26, 200 2 6 :28 PM To: ' Brett_ M._ Kavana ugh@wh o.eo p.gov' Subje ct: RE: US Codie We'll try to have a pre liminary an swer for you on th is tomorrow. In ca se it's of help, I inclu de below th e text of a 1953 OLC opinion. This opinion sugges ts (b) (5) SUBJECT, TO, FROM, DATE: (b) (5) -- DOCUMENT BODY: (b) (5) (b) (5) VERSIGHT Document ID: 0.7.18648.6434 18-1620-B-000064 18-1620-B-000065 Document ID: 01186486434 (b) (5) (b) (5) ATTORNEY: A.C. -- --Origina l Mess a ge---From: Brett_M._Kavanau gh@who.eop.gov [mailto:Brett_M._Kavanau gh@who.eop.gov] Sent: Tuesd ay, November 26, 2002 6:13 PM To: Whelan , M Edwa rd Ill Subject: US Code Can you t ell me whether- (b) (5) would require use a preliminary an swer on Wed . VERSIGHT Document ID: 0.7.18648.6434 (b) (5) ? could 18-1620-B-000066 18-1620-B-000067 Document ID: 01186486434 Keefer, Wendy J From: Sent: To: Subject: Keefer, Wendy J Wednesday, December 18, 2002 2:56 PM OLP-ALL; Goodling, Monica; Ciongoli, Adam; Wiggins, Mike; Jaso, Eric; Jordan, Bill; Olson, Theodore B; Duffy, Stacey; Bryant, Daniel E; Gibson, Joseph; O'Brien, Pat; Scottfinan, Nancy; Bass, Amy; Beach, Andrew; Richmond, Susan; 'Brett_M._Kavanaugh@who.eop.gov'; 'H._Christopher_Bartolomucci@who.eop.gov'; 'Jennifer_G._Newstead@who.eop.gov'; 'Bradford_A._Berenson@who.eop.gov'; 'Noel_J._Francisco@who.eop.gov'; Bybee, Jay; Bradshaw, Sheldon; (b)(6): Barbara Ledeen (Senate) '; 'Manuel_Miranda@judiciary.senate.gov'; Daniels, Deborah; Henke, Tracy; Schauder, Andrew; Day, Lori Sharpe; Clement, Paul D; Higbee, David; Levey, Stuart; Bell, Michael J (OLA); Ho, James Goodbye All: I wanted to take some time before I left today, my last day, and thank all of you for being such wonderful people and such great assets for our country. I have enjoyed working with each of you and encourage any of you to contact me if you ever make it down in the direction of Charleston. I would be happy to hear from you. Wendy J. Keefer Senior Counsel and Chief of Staff Office of Legal Policy (202) 616-2643 VERSIGHT Document ID: 0.7.18648.5041 - Forwarding Information: (b) (6) (b) (6) 18-1620-B-000068 Dinh, Viet From: Sent: To: Dinh, Viet Thursday, December 19, 2002 11:31 AM Bybee, Jay; Clement, Paul D; Bradshaw, Sheldon; Benedi, Lizette D; Bryant, Dan; Collins, Dan; 'Kavanaugh, Brett' Subject: Victims Rights Amendment Attachments: VRA SJ Res 35 redline.wpd The sponsors have agreed to incorporate the 180-day provision into the text of the Amendment. Attached is a suggested revision, pegged after the resolution introduced in the 106th. Jay and Sheldon, can you review and advise? Thanks. VERSIGHT Document ID: 0.7.18648.5054 18-1620-B-000069 Brett_M._Kavanaugh@who.eop.gov Brett_ M._Kavanaugh@who.eo p.gov From: Sent: Thursd ay, Jan uary 30, 2003 6:43 PM To: Whelan, M Edwa rd Ill Subject: key provisions to examin e (b) (5) VERSIGHT Document ID: 0.7.18648.6436 18-1620-B-000070 Brett_M._Kavanaugh@who.eop.gov Bre tt_ M._ Kavanaugh@who. eo p.gov From: Sent: Thu rsd ay , January 30, 2003 8:19 PM To: Whe lan, M Edwar d Ill Subject: from fina l rule Attachments: ATTACHMENT.TXT (b) (5) (b) (5) VERSIGHT Document ID: 0.7.18648.6437 18-1620-B-000071 18-1620-B-000072 Document ID: 0.7.18648.6437-000001 18-1620-B-000073 Document ID: 0.7.18648.6437-000001 Whelan , M Edward Ill From: Whe lan, M Edward Ill Sent: Friday, January 3 1, 2003 12:22 PM To: ' Brett_M._Kavanaugh@ who.eop. gov' Subject: (b) (5) (b) (5) Here 's our ana lysis : (b) (5) (b) (5) ---O rigina l Message --- From: Brett_ M._ Kavanau gh@who.eo p.gov [ma ilto:Brett _M._Kavanaugh@ who.eop.gov ) Sent: Thursd ay, January 30, 2003 8:40 PM To: Whe lan , M Edward Ill Subject: (b) (5) VERSIGHT Document ID: 0.7.18648.6439 18-1620-B-000074 Ciongoli, Adam From: Sent: To: Subject: Ciongoli, Adam Monday, February 10, 2003 6:02 PM Yoo, John C (b)(6): A.P. Newton (personal) '; 'rdavies@greenbag.org'; 'dcox@gibsondunn.com'; 'amcbride@wrf.com'; 'lleo@fed-soc.org'; 'Brett_M._Kavanaugh@who.eop.gov'; 'H._Christopher_Bartolomucci@who.eop.gov'; 'noel.francisco@who.eop.gov'; 'Kyle.Sampson@who.eop.gov'; 'benjamin_a._powell@who.eop.gov'; 'jennifer.newstead@who.eop.gov'; 'Robert_J._Delahunty@who.eop.gov'; 'Jan_E._Williams@who.eop.gov'; 'goldsmij@dodgc.osd.mil'; (b)(6): Alex Acosta (personal)t'; Nielson, Howard; Israelite, David; Kim, Elizabeth; Hruska, Andrew; Collins, Dan; Keisler, Peter D; Olson, Theodore B; Voss, Helen L; Clement, Paul D; Elwood, John; Salmons, David B; Bybee, Jay; Whelan, M Edward III; Bradshaw, Sheldon; Philbin, Patrick; Larsen, Joan; Jacob, Gregory F; Gannon, Curtis; Koester, Jennifer; Johnson, Steffen; Eisenberg, John; Rosenkranz, Nicholas Q; Berry, Matthew; Boyd, Ralph; Wiggins, Mike; 'ebirg@paulweiss.com'; Driscoll, Bob; Vu, Minh; Treene, Eric; Lelling, Andrew; Malcolm, John G; Jaso, Eric; Mandelker, Sigal; Coffin, Shannen; Flippin, Laura; Katsas, Gregory; Morrison, Richard T.; Dinh, Viet; Charnes, Adam; Willett, Don; Carrington, Michael; Chenoweth, Mark; Sales, Nathan; Benedi, Lizette D; Benczkowski, Brian A; Hall, William; Fisher, Alice RE: Jim Ho Happy Hour Constitution Subcommittee . (b) (6) -----Original Message----From: Yoo, John C Sent: Monday, February 10, 2003 5:59 PM (b)(6): A.P. Newton (personal) '; 'rdavies@greenbag.org'; 'dcox@gibsondunn.com'; 'amcbride@wrf.com'; To: 'lleo@fed-soc.org'; 'Brett_M._Kavanaugh@who.eop.gov'; 'H._Christopher_Bartolomucci@who.eop.gov'; 'noel.francisco@who.eop.gov'; 'Kyle.Sampson@who.eop.gov'; 'benjamin_a._powell@who.eop.gov'; 'jennifer.newstead@who.eop.gov'; 'Robert_J._Delahunty@who.eop.gov'; 'Jan_E._Williams@who.eop.gov'; 'goldsmij@dodgc.osd.mil (b)(6): Alex Acosta (personal) t'; Ciongoli, Adam; Nielson, Howard; Israelite, David; Kim, Elizabeth; Hruska, Andrew; Collins, Dan; Keisler, Peter D; Olson, Theodore B; Voss, Helen L; Clement, Paul D; Elwood, John; Salmons, David B; Bybee, Jay; Whelan, M Edward III; Bradshaw, Sheldon; Philbin, Patrick; Larsen, Joan; Jacob, Gregory F; Gannon, Curtis; Koester, Jennifer; Johnson, Steffen; Eisenberg, John; Rosenkranz, Nicholas Q; Berry, Matthew; Boyd, Ralph; Wiggins, Mike; 'ebirg@paulweiss.com'; Driscoll, Bob; Vu, Minh; Treene, Eric; Lelling, Andrew; Malcolm, John G; Jaso, Eric; Mandelker, Sigal; Coffin, Shannen; Flippin, Laura; Katsas, Gregory; Morrison, Richard T.; Dinh, Viet; Charnes, Adam; Willett, Don; Carrington, Michael; Chenoweth, Mark; Sales, Nathan; Benedi, Lizette D; Benczkowski, Brian A; Hall, William; Fisher, Alice Subject: Jim Ho Happy Hour Pat Philbin and I would like to invite you to a happy hour this Thursday in honor of Jim Ho, who is leaving OLC to become Chief Counsel of the Constitution Subcommittee of the Senate Judiciary Committee (the launching pad from which others have begun their ascent toward greatness). It will be Thursday evening at the Caucus Room bar at 6:30. John Yoo VERSIGHT Document ID: 0.7.18648.5090 18-1620-B-000075 Office of Legal Counsel Department of Justice 202.514.2069 202.514.0539 (fax) AMERICAN PVERSIGHT Document ID: 0.7.18648.5090 18-1620-B-000076 Joy, Sheila From: Joy, Sheila Sent: Tuesda y, February 11, 2003 6:12 PM To: Bybee , Jay; Dinh, Viet; Charnes , Adam; Remingt on, Kristi L; ' Brett_M._Kavanaug h@who.eo p.gov'; Benczkowski, Brian A Subject: FW: Bybee follow-up ques tions Attachments: tmp.ht m; bybeefo llowups.doc; bybee writtenques tions .wpd; Follow Up Quest ions for Jay Bybee .msg Jay, Attached are so me of th e follow-up ques tions . Please prepa re a draft respo nse as follows : repea t the ques tion, followed by your res ponse . Fax to OLP, can use either 4-2424 or 6-3180. Ult imat ely we will need a cover lett er to Senat or Hatch with cc to Sen at or Leahy. Within in the body of th e letter, please referen ce the Senat or who ha s se nt follow-up ques tion and t o which you are res ponding. Thanks Sheila ----Or iginal Message-- --From: Stah l, Katie {Judiciary) [mailto:Katie_ Stahl@Judiciary.se nat e.gov) Sent: Tuesda y, Febr.uary 11, 2003 6:03 PM To: Joy, Sheila Subject: Bybee follow-up ques tions Hi Sheila, This is what I have received so far. I did receive a mess age from Sen at or Feingold stat ing he would need one more day to submit his ques tions . I'll kee p you posted . Katie VERSIGHT Document ID: 0.7.18648.5185 18-1620-B-000077 Follow-Up Questions for Jay Bybee Background for Questions #1 through #3 Last April, the Justice Department announced that it was considering a legal opinion that apparently came from the Office of Legal Counsel, the office which you oversee, that stated that state and local police officers have the "inherent legal authority" to arrest people for civil and criminal immigration law violations. It appears now that the Justice Department has in fact accepted the OLC opinion, and has been attempting to implement it. Despite the fact that this opinion changed the nature of law enforcement and seems to enjoy only limited legal support, it has not been made public. This means the public affected by it cannot examine it and decide for themselves whether or not they agree with its conclusions. This new opinion is not just a departure from precedent, it is bad policy. It would increase the risk of racial profiling and civil rights abuses, against both non-citizens and citizens who are deemed not to look "American." It would also seriously undermine the ability of police departments to establish effective working relations with immigrant communities, and would deter many immigrants from reporting acts of domestic violence and other violent crime. For these reasons, police chiefs and police associations across the country have come out against your proposal. Chief Charles Moose of Montgomery County, Maryland has said it “is against the core values of community policing: partnerships, assisting people, and being there to solve problems.” Sacramento, California Police Chief Arturo Venegas has said that “to get into enforcement of immigration laws would build wedges and walls that have taken a long time to break down.” In fact David Keene, chairman of the American Conservative Union and Grover Norquist, president of Americans for Tax Reform have spoken out against this policy as setting a dangerous precedent. Question #1 Why did your office depart from the previous OLC memo, approved in 1996, which disallowed the practice of having state and local law enforcement officers make arrests for immigration violations, and what is the legal and policy basis of your determination that state and local police may enforce the nation’s immigration laws? Question #2 The war on terror has not changed what constitutes good policing: building relationships with communities and serving the public. If anything, it has made the relationship between police and the immigrant communities they serve more important to domestic security. From a law enforcement perspective, aren’t the police chiefs and police associations correct that police cannot build trusting relationships with immigrant communities under your policy? VERSIGHT Document ID: 0.7.18648.5185-000001 18-1620-B-000078 Question #3 Why has the OLC not made this important opinion public? Background for Question #4 Education is a key to ensuring that every American has an equal opportunity to succeed. Because they help to further this goal, educational institutions are given a tax exemption under section 501 of the Tax Code. Thus, these institutions receive many of the same government services other entities do, but they effectively receive them for free. Institutions, educational or otherwise, that discriminate based on race do not reflect our society’s values and do not further the national goal of equal opportunity. We thus have no business subsidizing their discrimination with a tax exemption. The Supreme Court has said as much. In the 1983 case Bob Jones University v. United States, the Supreme Court said that the government could deny a tax exemption to educational institutions that practice racial discrimination. I welcomed that opinion, but you seem to think it was wrongly decided. You have stated in an article in Sunstone Magazine that the government has tremendous leverage over educational and religious institutions and the denial of the section 501 tax exemption in Bob Jones illustrated “how capriciously the government may make use of the leverage.” Question #4 Do you still believe that ending discrimination at educational and religious institutions is good public policy, or is it, as you said, “capricious”? Background for Questions #5 and #6 The Equal Protection Clause is critically important to protect the civil rights of all Americans. The promise of equal justice under law, in the end, is secured only through a judicial system that ensures that the laws are applied and enforced equally. Given the majoritarian nature of the executive and legislative branches of our federal government, it is essential that the federal judiciary scrupulously ensure the opportunity of minorities, the powerless and the disenfranchised to pursue and obtain justice. In Romer v. Evans, the Supreme Court struck down a Colrado statute that invalidated any local ordinances that protected the rights of gays and lesbians. In 1997, you noted that it would have been logical in deciding Romer for the Supreme Court to have relied on Hunter v. Erickson. In Hunter, the Supreme Court struck down an amendment to the Akron City Charter that required any ordinance regulating use, on the basis of race, color, religion, national origin or ancestry, of real property to be first submitted to public referendum. The Supreme Court held that the amendment was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment because it “treated racial housing matters differently from other racial and housing matters.” VERSIGHT Document ID: 0.7.18648.5185-000001 18-1620-B-000079 You have suggested that the Court did not cite Hunter because it was wary of declaring sexual orientation a suspect classification, which it would have had to do had it relied on Hunter. You have further suggested that you believe that discrimination against a group defined by sexual orientation is not worthy of scrutiny under the Equal Protection Clause. Question #5 What would be necessary to consider gays and lesbians a suspect class or quasisuspect class under the equal protection clause? Question #6 You have compared the Court's ruling in Romer to protecting "the illiterate" or "persons with communicable diseases." You have also defended the Defense Department's policy of performing intrusive background investigations before granting gay contractors security clearances because of their sexual orientation and you have contributed to a brief claiming that "a homosexual may be emotionally unstable." Does this brief represent your opinion of lesbian and gay people? VERSIGHT Document ID: 0.7.18648.5185-000001 18-1620-B-000080 Questions for Jay S. Bybee, Nominee for the Ninth Circuit Submitted by Senator Patrick Leahy 1. During your time at the Justice Department in the 1980s, you helped shape the federal government’s response to a class-action lawsuit filed by survivors of the internment camps where Japanese-Americans and foreign nationals were warehoused during World War II. This horrific deprivation of civil rights was at the time implemented by the executive branch out of what they called a "military necessity." As you may recall, in October 2001, when you appeared before this Committee for confirmation to your current position as Assistant Attorney General for the Office of Legal Counsel (OLC), you testified about the Internment of Japanese-Americans and you recognized that "the United States made a terrible mistake during very difficult conditions. " You indicated that this mistake should never be repeated. You even went so far as to promise to "bring additional sensitivity to the rights of all Americans’" and to "not trample civil rights in the pursuit of terrorism" in your role in advising the current Administration in our current difficult conditions. I am interested in the legal work you have been involved in since your confirmation in 2001. As you are no doubt aware, this Administration has been accused of encroaching on the civil rights of Americans in the pursuit of terrorism. It has been reported that OLC advised the Administration on its decision that it did not need to declare the al Qaeda and Taliban detainees prisoners of war under the Geneva Convention. Your recommendation appears to conflict with Secretary Powell, who argued that the detainees at Guantanamo Bay should be declared prisoners of war and afforded protections under the Geneva Convention. Congressional Research Services analysis supports that view: "Because the United States has argued that the intimate connection between the Taliban and Al Qaeda in part justifies the use of armed force in Afghanistan, some observers argue that Al Qaeda ... members may be entitled to treatment as prisoners of war." Without speaking for Secretary Powell, I suspect the State Department is concerned about the harm that this decision could have on U.S. foreign policy and national security goals -especially combating terrorism. This decision has angered key allies, including members of the European Parliament and Organization of American States, whose help we will need to disrupt terrorist cells and interdict weapons of mass destruction. Some argue that not declaring these individuals POWs also could affect the treatment of our own soldiers if they are captured in hostile countries. (a) In your personal opinion, is the State Department is wrong about the need for POW status of persons detained at Guantanamo Bay? (b) What do you see as the strongest part of the State Department's position? (c) Are you concerned about the repercussions this could have on the treatment of American soldiers that are captured? 1 VERSIGHT Document ID: 0.7.18648.5185-000002 18-1620-B-000081 (d) What did OLC advise with regard to POW status for detainees? 2. On a related note, the Administration has taken the position that any individual whom the President declares to be an "unlawful combatant" may be detained indefinitely, without access to counsel, without having any charges brought against him. and without regard to the individual’s nationality or to where he was arrested. Since we are considering you for a lifetime appointment to the bench, I am most interested in your view on the access to counsel issue. There are few safeguards to liberty that are more fundamental than the Sixth Amendment, which guarantees the right to a lawyer throughout the criminal process, from initial detention to final appeal. Yet today, an untold number of individuals – at least some of whom are American citizens – are being held incommunicado, without access to counsel. In one case that we do know about, the Padilla case in the Southern District of New York, the defendant – a U.S. citizen – was arrested in Chicago on a material witness warrant, then transferred to a military brig after the President labeled him an "unlawful combatant." For nine months he has been denied the right to consult with a lawyer – even after a court ruled that he had a right to do so. As the head of OLC, you have no doubt played a key role in developing the Administration’s policy with respect to denying legal representation for "unlawful combatants." (a) Please explain your involvement in this issue and the legal theories that support the Justice Department’s treatment of this person. (b) Please explain your personal belief of the importance of the Sixth Amendment rights of criminal defendants. (c) You have recently expressed your beliefs on the subject in speeches entitled "War and The Constitution" and "War and Crime in a Time of Terror" given to the Federalist Society and other groups. During these speeches you have stated that Presidents have "the option" of treating the same person either under criminal rules or under rules reserved for war because in your words these realms "are not mutually exclusive." Have you advised the Administration on the propriety of trying terrorist suspects in military tribunals, rather than in district court? Do you concede that this is a new view of executive power? 3. In conducting research on the recent activities of the office that you head at the Justice Department, a substantial roadblock was encountered when it was discovered that you had only published three OLC opinions since your confirmation in 2001. A recent search revealed that 1,187 OLC opinions were publicly available on-line since 1996. Clearly, these opinions were routinely published prior to your appointment to Assistant Attorney General. (a) Please explain to the Committee why under your leadership there has been a virtual termination in the routine publication of opinions and why you have only saw fit to release three opinions? (b) I am concerned that there is a disturbing pattern in your record of an expansive view of Executive Privilege – that you do not believe the people have a right to know what the 2 AMERICAN PVERSIGHT Document ID: 0.7.18648.5185-000002 18-1620-B-000082 Administration is doing, what legal rules informed their policy choices and who was consulted. What can you say to assure us that you are for public access to government and are not part of an attempt to stonewall the public to ward off scrutiny about difficult policy decisions implemented by the Administration? 4. In reviewing your record, I note that you appear to have spent much of your professional career in government working against Congress’ administrative oversight efforts. (a) For the first time in the 81-year history of the GAO, the Comptroller General of the United States went to Federal court to ask a judge to order a member of the executive branch to turn over records to Congress. Have you advised the Administration on the propriety of asserting executive privilege and refusing to produce documents to the GAO who sought to investigate how public money is spent? Please explain your reasoning. (b) Can you give us an example of a federal court case where you thought Executive Privilege should not apply? How about an example of a case that upheld the denial of a FOIA request that you disagreed with? (c) In Advising the President: Separation of Powers and the Federal Advisory Committee Act, Yale Law Journal (1994), you analyze Congress’ ability to enact laws that requires committees ‘utilized’ by the President to open their records and to open their meetings to the public. In fact, you contends that the Federal Advisory Committee Act (FACA), is an unconstitutional encroachment by Congress on the power of the executive. I am concerned that you have a firm ideological bias against public access to any executive decision making. What do you have to say on this subject? 5. Last year, you were called to Capitol Hill to testify before the House Government Operations Committee to explain why the Administration refused to produce documents prepared by federal prosecutors involving corrupt FBI practices in a 30-year old investigation of organized crime in New England. At this very heated hearing, you were severely criticized by Members from both sides of the aisle for the Administration's lack of disclosing virtually anything to a congressional committee who was engaged in oversight proceedings. I believe your reason for not producing the many documents requested by the Committee was that there was an on-going investigation into the mistakes made by the FBI. If that is the standard for asserting executive privilege – that there is an on-going investigation– then how will anything be discoverable regarding the mistakes made prior to September 11 th? (a) Wouldn’t that standard also encourage the Administration to just keep investigating things in order to block off important disclosures directly relevant to oversight proceedings? (b) Do you believe that Congress has a valid power of oversight and should be allowed to obtain documents from the Justice Department? (c) In addition to disagreeing with the Supreme Court’s decision in Public Citizen v. United States, can you please name three other recent decisions that you disagree with? 3 AMERICAN PVERSIGHT Document ID: 0.7.18648.5185-000002 18-1620-B-000083 6. There has been an overwhelming wave of concern expressed about the Department of Defense’s Total Information Awareness system being developed under Admiral Poindexter. I understand that some form of data mining is currently used at the Justice Department. (a) Have you advised the Attorney General or the President on the propriety of such data mining and whether it comports with the Privacy Act? Please explain your analysis. (b) According to a recent article in The Nation, law enforcement officials sought to use databases which maintain information regarding the purchase of guns to monitor the purchasing activities of suspected terrorists. The article quotes an OLC memo, which stated: "We see nothing in the NICS regulations that prohibits the FBI from deriving additional benefits from checking audit log records." Attorney General Ashcroft reportedly refused to allow these officials such access, saying: "It's my belief that the United States Congress specifically outlaws and bans the use of the NICS database - and that's the use of approved purchase records - for weapons checks on possible terrorists or on anyone else." Have you advised the Administration on the propriety of using gun purchase databases to track terrorist suspects, as reported in The Nation? 7. I noticed that prior to your appointment to the Justice Department you commented on the constitutionality of states’ requiring fingerprints to receive a drivers license. In a Las Vegas newspaper you were quoted as saying that "The Constitution gives us a lot of leeway to decide on these issues." (a) Have you contributed to OLC opinions or advised the Administration on the constitutionality of using biometric traits in governmental databases? (b) Do you believe there is a constitutional right to privacy? If so, please describe what you believe to be the key elements of that right. If not, please explain. (c) Do you support the holding of Roe v. Wade and a constitutionally recognized and protected right to choose? (d) A number of lawyers designated by the Federalist Society as experts on the constitutionality of abortion are openly hostile to a woman’s right to choose and believe that Roe v. Wade should be overruled. As a member of the Federalist Society, do you share the views of their experts in this area? 8. You have argued that the Seventeenth Amendment providing for the popular election of U.S. Senator was a significant "mistake" because it removed the state legislature’s power. I am concerned that your article reflects a serious disdain for democracy. If you are appointed to the Ninth Circuit you will frequently be required to judge cases on voter initiatives and referenda, which are very popular in the western region of this country. What can you tell us to ensure us that you do not have a bias against instruments of direct-democracy like voter initiatives? 4 AMERICAN PVERSIGHT Document ID: 0.7.18648.5185-000002 18-1620-B-000084 9. You have argued that the Tenth Amendment should be reinterpreted to protect states' rights from encroachments by Congress and have been critical of the Supreme Court's opinions which allowed Congress to expand its powers under the Interstate Commerce Clause. In your article "The Tenth Amendment Among the Shadows," you argue that the Court should further curtail Congress’ ability to enact national standards to give states complete control in "family law, ordinary criminal law enforcement, and education." In your academic writing on protecting states’ rights, you indicate a clear support the Supreme Court’s curtailment of Congress’ power to act but you do not indicate any support for restrictions on the President’s power to act. (a) Certainly, the President’s implementation of regulations and executive orders also affects states’ rights. Can you provide examples of executive actions that have violated states’ rights? (b) Do you agree with the President, who in his first State of the Union said that education is a top federal priority because education is the first, essential part of job creation, or do you agree with the Supreme Court majority in United States v. Lopez, which said that education is a "noneconomic" activity and is therefore outside the federal regulatory power? 10. In response to the September 11th terrorist attacks, our government has launched a criminal investigation of unprecedented scope. The federal government has responded to the attack in not only in its military, intelligence, and national security capacity, but also in its domestic law enforcement capacity. I have been worked very closely with the Administration to pass comprehensive anti-terrorism legislation to make sure that such a tragedy never happens again. As part of this effort, I proposed creating a new federal crime to punish attacks on mass transit systems, and the Administration has suggested created new federal criminal prohibitions against the possession of biological agents or toxins by unauthorized persons and against harboring terrorists. (a) A few years ago you gave a speech to the Nevada Inn of Court where you said: "Had the Court not struck down VAWA, then, I am afraid, there was (for those concerned about federalism) a parade of horribles to follow." In light of this concern, what is your position on proposals to expand federal criminal law to respond to terrorists? (b) You recently gave a speech saying that "Federalism must step aside" to executive power when we are at war. In your view, does this exception also apply to the power of Congress? Please reconcile your answer with the speech you gave to the Federalism Society entitled "War & the Constitution: We are all Hamiltonians Now." (c) Can you provide examples, other than the fight against terrorism where we would be constitutionally justified in establishing national standards? What about, for example, protecting citizens against discrimination? In your view, would that be a justifiable subject for Congress to legislate? 11. In 1997, you wrote that Congress has very limited power to pass criminal statutes. You supported this view with a cite to the Domestic Violence Clause of the Constitution, a little known clause in Article Four, that in your view provides "general criminal law 5 AMERICAN PVERSIGHT Document ID: 0.7.18648.5185-000002 18-1620-B-000085 enforcement to the states." You also argued that even when we act under our enumerated constitutional powers, the clause created "a presumption against federal preemption, co-option and even duplication of state efforts to control [crime]." I understand from your public statements that since September 11 th, a lot has changed in terms of the power of the Executive to fight the war on terrorism and I wonder if your view of the power of Congress to enact criminal statutes has also changed. 12. In your law review article, The Equal Process Clause: A note on the (Non)Relationship Between Romer v. Evans and Hunter v. Erickson, you wrote that, "If Amendment 2 violates the Equal Protection Clause, it does so because . . . homosexuals are entitled to strict or heightened scrutiny. Whether, however, homosexuals are entitled to strict or heightened scrutiny is the one thing the Court could not bear to answer." (a) In your opinion, do you believe members of the gay and lesbian community constitute a suspect class and, as such, are entitled to heightened scrutiny? If not, why not? (b) In Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court invalidated "Amendment Two" because the law could not withstand even the most deferential level of review, rationality review. The majority opinion explains that the Amendment, "lacks a rational relationship to legitimate state interests," because it, "seems inexplicable by anything but animus toward the class it affects." Romer, 517 U.S. at 632. Yet, you seem to be implying that the Amendment can be found unconstitutional only if gays and lesbians constitute a suspect class, which you suggest they do not. How do you reconcile that argument with the Romer majority’s position quoted above? (c) How would you analyze a situation in which a lesbian applied for housing and was denied purely on the basis of her status as a lesbian? Would you say that she should have no recourse under the law? What about a gay man who called 911 and the police refused to respond because of his sexual orientation, as Amendment 2 seemed to allow? (d) I am impressed by your acknowledgment that as a result of the states’ failure to act, Congress amended the Constitution to pass the 14 th Amendment. This "Amendment granted expanded authority to Congress and the federal courts to deal with the gross inequities in state laws." Many people argue that discrimination on the basis of sexual orientation is the same as discrimination on the basis of race or gender. In your view, does Congress have the power to enact legislation to protect gays and lesbians from discrimination on the basis of their orientation? (e) In that same law review article, you criticized the Supreme Court’s decision in Hunter v. Erickson which invalidated a law that restructured the political process in such a way as to make it harder for minority groups to pass anti-discrimination legislation. If the Supreme Court’s analysis in that case is flawed, as you suggest, how should the courts, if at all, protect the rights of minority groups to participate equally in the political process? (f) You have also suggested that courts should not treat legislative referenda any differently than 6 AMERICAN PVERSIGHT Document ID: 0.7.18648.5185-000002 18-1620-B-000086 laws enacted by legislative officials. Do you believe that referenda raise any special concerns when it comes to protecting the rights of minorities? 13. In your article on Romer v. Evans, you state that In the recent past, when the Court has confronted such controversial questions of general interest, it has attempted to draw on our legal traditions to demonstrate the inevitability of its decision. This idea of judicial precedent possesses a certain Calvinistic fatalism: By ascribing to traditions or prior decision a power beyond the present [Supreme] Court’s ability to control, precedent absolves the present Court of responsibility for the decision the Court must make. Please explain your understanding of judicial precedent and what role it serves in both the judicial and executive branches for guiding and justifying decisions. If the role you believe it serves is different from the role you think it should serve, please explain. 14. In your article "Government Aid to Education: Paying the Fiddler," you criticize the IRS policy ultimately found constitutional by the Supreme Court in Bob Jones University v. United States, which denies tax exempt status to universities that employ racially discriminatory practices. (a) Your concern is that governmental power can be used "against almost any institution in the name of any alleged ‘public policy.’" As a judge, how will you differentiate among what you believe are "good" public policies versus "bad" public policies? Can you provide an example of a public policy that, in your view, would allow the government to use its power to protect marginalized groups? (b) In criticizing the government's so-called capricious leverage, you comment on the multitude of lawsuits that have resulted. You specifically include "sexual preference" as one type of suit courts have "entertained." Does this mean that you would not support government protection against sexual-orientation discrimination? 15. I notice that you have filed at least two Supreme Court briefs on behalf of the Clarendon Foundation – one in the case challenging the Violence Against Women Act and the other challenging the Religious Freedom Restoration Act. (a) Were you approached by the Foundation to file these Amicus Briefs or did you seek them out? (b) Please describe the Clarendon Foundation and tell us if you share a common legal philosophy with the Foundation on issues of federalism? (c) Since your confirmation to the Justice Department, what contact, if any, have you had with the Clarendon Foundation? 16. In the amicus brief you filed on behalf of the Clarendon Foundation on the case United States v. 7 AMERICAN PVERSIGHT Document ID: 0.7.18648.5185-000002 18-1620-B-000087 Morrison, you take issue with the constitutionality of the Violence Against Women Act. In particular, you argue that, under the Domestic Violence Clause of the Constitution, art. IV, § 4, "Congress did not assume primary responsibility – whether exclusive or concurrent – for quelling domestic violence. Rather, its responsibility was secondary: The United States was to ‘insure domestic tranquility’ when the states, in their own judgment, proved incapable." 1999 WL 1186265. You go on to argue that Congress has interpreted the Commerce Clause too broadly, and that, "Congress’s response to the problem of gender-based violence was simply to coopt the field nationally" and that "[t]he framers conditioned the exercise of federal power over domestic violence on the states requesting federal assistance" and that "[t]he Domestic Violence Clause thus shields the states from unwanted federal intervention." Id. (a) Please explain how you think the Domestic Violence Clause limits the Commerce Clause, and therefore the Congress, from enacting criminal statues. (b) What other criminal statutes do you feel run afoul of the Commerce Clause and why? 17. What can you say to assure this Committee and prospective parties that you will be a fair judge, an impartial adjudicator, who will not use the federal bench to achieve the philosophical agenda that you have been advancing as an advocate and officer of the Federalist Society? 18. President Bush previously appointed a judge to an appellate court (John Rogers) who asserted that a lower court, when faced with case law it thinks a higher court would overturn were it to consider the case, should take that responsibility upon itself and go ahead and reverse the precedent of the higher court on its own. The idea is that the Supreme Court, for instance, has rules it follows about when and whether to overturn precedent, and lower courts should follow this body of law in the same way they follow other laws of the higher court, and, therefore, a judge should reverse higher court precedent on his own when he thinks that the higher court would. Do you subscribe to this theory that lower courts should intuit when a higher court would decide to overturn its own precedent? Or do you believe that lower courts may never overturn precedents of higher courts? 8 VERSIGHT Document ID: 0.7.18648.5185-000002 18-1620-B-000088 Jones, Stephanie (Edwards) From: Sent: Jones , Stephan ie (Edwards ) To: Stahl, Katie (Judiciary) Ce: Arfa, Rachel (Judiciary) Subject: Follow Up Ques tions for Jay Bybee Attachments: tmp.htm ; followup.doc Friday, July 20, 20 18 8:12 AM Katie - Attach ed are Senat or Edwa rds ' follow-up ques tions for Jay Bybee . Step han ie Jones Counse l to Sen . John Edwards 4-7420 VERSIGHT Document ID: 0.7.18648.5185-000003 18-1620-B-000089 Follow-Up Questions for Jay Bybee 1. Have you advised the administration on its Enemy Combatant policy? 2. Do you agree with the administration’s stance on enemy combatants? 3. Do you believe that the administration – or any administration – should have the unfettered authority to lock up U.S. citizens, indefinitely, without charging them with any crime, with no independent review? These questions concern your 1982 article published in Sunstone Magazine, in which you criticized the IRS decision to deny tax exempt status to Bob Jones University because of its racially discriminatory policies. Among other things, you argued that the IRS policy “illustrates well how capriciously the government may make use of its leverage.” You also claimed that the IRS improperly sought to remove the University’s tax immunity “because some things which BJU taught and encouraged its students to practice did not comport with social ideas currently held by others all loosely defined as ‘public policy’.” I am concerned about your dismissal of the federal government's effort to combat discrimination as merely an "alleged public policy" choice rather than a legitimate governmental interest. Your implication that the compelling government interest in and a consistent bipartisan policy of prohibiting discrimination is nothing more than a "loosely defined public policy" rather than an unfaltering part of the American constitutional fabric is very troubling. 4. Do you still believe that restricting government benefits to institutions like Bob Jones University that choose to discriminate in violation of long standing governmental policy exemplified by, for example, the Civil Rights Act of 1965, is a “capricious” use of governmental power? 5. If denying tax exemption status to an institution that blatantly discriminates in its policies is a capricious use of governmental power, what would be a legitimate use of governmental leverage? 6. What criteria would you use, if confirmed to the Court of Appeals, for determining whether the conditions placed on a religious or educational institution are a legitimate exercise of governmental power or, as you suggest, simply coercive leverage that is subject to the whims and caprices of each administration? 7. What factors would you examine to determine whether a policy decision of an administration was more than a "loosely defined social idea" characterized as public policy? 8. What do you think is the proper role of the courts in such circumstances? AMERICAN PVERSIGHT Document ID: 0.7.18648.5185-000004 18-1620-B-000090 Katie - Attached are Senator Edwards' follow-up questions for Jay Bybee. Stephanie Jones Counsel to Sen . John Edwards 4-7420 '' pVERSIGHT Document ID: 0.7.18648.5185-000005 18-1620-B-000091 Hi Sheila, This is what I have received so far. I did receive a message from Senator Feingold stating he would need one more day to submit his questions . I'll keep y ou posted . Katie VERSIGHT Document ID: 0.7.18648.5185-000006 18-1620-B-000092 Whelan, M Edward III From: Sent: To: Whelan, M Edward III Friday, March 07, 2003 11:02 AM 'Kavanaugh, Brett' I'm tweaking the language a bit. VERSIGHT Document ID: 0.7.18648.6440 You might want to look at (b) (5) 18-1620-B-000093 Whelan, M Edward Ill From: Whelan, M Edward Ill Sent: Frida y, March 07, 2003 1:32 PM To: 'Kavanaugh, Brett' Subject: revised vers ion (b) (5) Let me know wheth er you wan t to talk more about this at some point. VERSIGHT Document ID: 0.7.18648.6441 18-1620-B-000094 Whelan, M Edward III Whelan, M Edward III Wednesday, March 12, 2003 11:47 AM 'Kavanaugh, Brett' inferior officers From: Sent: To: Subject: The answer to your question is far from settled. Here are some points for consideration: 1. (b) (5) . 2. ; ) ot (b) (5) s: ." . rt. s". d. s. n. . . 3. t . at at ot 's s, in 's he so 7. ng urt (b) (5) t . . . 4. (b) (5) . VERSIGHT Document ID: 0.7.18648.6444 18-1620-B-000095 Bumatay , Patrick J. From: Sent: Bumatay , Pat rick J. Thursd ay, March 20, 2003 12:20 PM To: Charn es , Adam ; Ciongoli, Adam ; Comstock, Barba ra; Pat e, R. Hewitt ; Bybee , Jay; Yoo, John C; Remingt on, Kristi L; Flippin, Laura; Philb in, Pat rick; Mcc allum, Robert; Brads ha w, Sheldon; Dinh, Viet; Bartlett , Danie l J.; Beynon, Rebecca A.; Bridge lan d, John M.; Christie, Rona ld I.; Clark, Alicia P.; Conna ughto n, James ; Daniels, Mitch ell; Devenish, Nicolle; Dougherty, Elizab eth S.; Estes , Ashley; Falkenr ath , Richard ; Garrison , Stephen M.; Hennesse y, Keith; Higbee , David; Jeffe ry, Reuben; Kaplan , Joel; Kirk, Matth ew; Lefkowitz, Jay P.; Loper , Ginger G.; Martin, Cath erine J.; McConnell, John P.; Mehlman, Ken; Miers , Harriet; Moy, Edmund C.; Ojak li, Ziad; Perry, Philip J.; Powell, Dina; Reed , McGavo ck D.; Rove, Karl C.; Russe ll, Richard M.; Schacht, Diana L.; Schlapp , Matth ew A.; Silverberg , Kristen; Skelly, Layt on; Spellings , Margaret M.; Thompso n, Carol J.; Viana, Mercedes M.; Warsh, Kevin; White, Jocelyn; William s, Jan E.; Wood , John F.; Sharp, Jess ; Cabral, Raque l; Middlema s, A. Morgan; Bolten, Joshua B.; Rachel Bran d; libby.camp@ dhs .gov; bbere nso n@sidley.com; hayn es wj@osdg c.osd .mil; Riepenhoff, Alliso n L.; Elwood , Courtney S.; rcobb@h q.na sa .gov; tflan igan@tyc o .com; law-steven@dol.gov; radze ly-howa rd@dol.gov; Walker, Helgard C.; Addingt on, David S.; Bart olomucci, H. Christopher; Bellirnger , John B.; Brilliant , Hana F.; Bumat ay, Patrick J.; Carro ll, James W.; Everson , Nane tt e; Farre ll, J. Elizab eth; Franci sco, Noe l J.; Ganter, Jonathan F.; Juca s, Tracy ; Kavanau gh, Brett M.; McNally, Edwa rd; Montiel, Charlott e L.; Nelson , Caro lyn; Newstead, Jennifer G.; Powell, Benjam in A.; Sam pso n, Kyle; Ullyot, Th eodore W. Subject: Farewell for Helgi Walker on Thursd ay, March 27 Attachments: t mp.htm > On beha lf of th e Wh ite House Counse l's office (with specia l su pport > from Liz Doug herty of the Domes tic Policy Co,uncil), you are cordially > invited to att end a gath ering in honor of our good friend and > colleag ue He lgi Walker, who is preparing t o lea ve the White House for> th e privat e se ctor. > > The fes tivities will be held on Thursda y, March 27th from 6-8 p.m. at > th e "Off th e Record" ba r at the Hay-Adam s Hote l. Please join us in> wishing Helgi a fond fare well. We hope to see you there ! > > Jennifer Newstead & Liz Dougherty > P .S. Anybody who would like to come is more than welcome - this ema il group was jus t a start ... VERSIGHT Document ID: 0.7.18648.5191 18-1620-B-000096 On behalf of the White House Counsel's office (with special support from Liz Dougherty of the Domestic Policy Council), you are cordially invited to attend a gathering in honor of our good friend and colleague Helgi Walker, who is preparing to leave the White House for the private sector. The festivities will be held on Thursday, March 27th from 6-8 p.m. at the "Off the Record" bar at the Hay-Adams Hotel. Please join us in wishing Helgi a fond farewell. We hope to see you there! Jennifer Newstead & Liz Dougheny P.S.Anybody who would like to comeis morethan welcome••this emailgroup was just a start ... pVERSIGHT Document ID: 0.7.18648.5191-000001 18-1620-B-000097 Bumatay , Patrick J. From: Sent: Bumatay , Pat rick J. Wed nesd ay, March 26, 2003 9 :48 AM To: Cham es , Adam ; Ciongoli, Adam ; Comstock, Barba ra; Pat e, R. Hewitt ; Bybee , Jay; Yoo, John C; Remingt on, Kristi L; Flippin, Laura; Philb in, Pat rick; Mcc allum, Robert; Brads ha w, Sheldon; Dinh, Viet; Bumatay , Pat rick J.; Bart lett , Daniel J.; Beynon, Rebecca A.; Bridge lan d, John M.; Christie, Ronald I.; Clark, Alicia P.; Conna ughton, Jam es ; Daniels, Mitch ell; Devenish, Nicolle; Doug herty, Elizab eth S.; Estes , Ashley; Falkenrath , Richard ; Garriso n, Stephen M.; Hennes.se y, Keith; Higbee , David; Jeffe ry, Reu ben; Kaplan, Joe l; Kirk, Matth ew; Lefkowitz, Jay P.; Loper, Ginger G.; Mart in, Cath erine J.; McConnell, John P.; Mehlman , Ken; Miers , Harriet; Moy, Edmund C.; Ojak li, Ziad; Perry, Philip J.; Powell, Dina ; Reed , McGavock D.; Rove, Karl C.; Russe ll, Richa rd M.; Schacht, Diana L.; Schlapp, Matth ew A.; Silverberg , Kristen; Skelly, Layt on; Spellings , Margaret M. ; Thompso n, Carol J.; Viana, Mercedes M.; Warsh, Kevin; White, Jocelyn; Williams, Jan E.; Wood , John F.; Sharp, Jess ; Cabral, Raquel; Middlem as, A. Morga n; Bolten, Joshua B.; Rachel Bran d; libby.ca mp@dhs.gov; bbere nso n@sid ley.co m; hayn es wj@osdg c.osd .mil; Riepen hoff, Alliso n L.; Elwood , Courtn ey S.; rcobb@h q.nas a. gov; tflan igan@tyc o .com; law-steven @do l.gov; radze lyhoward@dol.gov; Walker, Helgard C.; Addingt on, David S.; Bartolomucci, H. Christ opher; Bellinger , John B.; Brillian t, Hana F.; Carroll, Jam es W.; Everso n, Nanett e; Farre ll, J. Elizab eth; Franci sco, Noe l J.; Gant er, Jonathan F.; Jucas , Tracy; Kavanau gh, Brett M.; McNally, Edwa rd; Montiel, Charlott e L.; Nelson , Carolyn; Newstead, Jennifer G.; Powell, Benjam in A.; Sam pso n, Kyle; Ullyot, Th eodore W. Subject: Fare well for Helgi Walker on Thursd ay, March 27 Attachments: t mp.ht m Just a reminder , tomorrow is Helgi's Going Away Hap py Hour. I'm trying to ge t a roug h head coun t for Off the Record, so if you know you are coming please let me know. > On behalf of the Wh ite House Counse l's office (with special supp ort> from Liz Doug herty of the Domes tic Policy Co,uncil), you are cordially > invit ed to att end a gath ering in honor of our good friend an d > colleague He lgi Walker, who is preparing to leave the White House for > t he privat e se ctor. > > The fes t ivities will be held on Thursd ay, March 27th from 6-8 p.m. at> th e "Off th e Reco rd" ba r at the Hay-Adams Hote l. Please join us in > wishing Helgi a fond fare well. We hope to see you there ! > > Jennifer Newstea d & Liz Dougherty > > P.S. Anybody who would like to come is more than welcome -- this em ail > group was ju st a start ... > > > > VERSIGHT Document ID: 0.7.18648.5211 18-1620-B-000098 18-1620-B-000099 Document ID: 01186485211 Just a reminder, tomorrow is Helgi's GoingAway Happy Hour. I'mtryingto get a roughhead countfor Offthe Record, so if you know you are comingplease let me know. On behalf of the White House Counsel's office (with special support from Liz Dougherty of the Domestic Policy Council), you are cordially invited to attend a gathering in honor of our good friend and colleague Helgi Walker, who is preparing to leave the White House for the private sector. The festivities will be held on Thursday, March 27th from 6-8 p.m. atthe "Off the Record" bar at the Hay-Adams Hotel. Please join us in wishing Helgi a fond farewell. We hope to seeyou there! Jennifer Newstead & Uz Dougheny P.S. Anybody who would like to come is more than welcome-· this email group was just a start ... pVERSIGHT Document ID: 0.7.18648.5211-000001 18-1620-B-000100 Whelan, M Edward III From: Sent: To: Subject: Whelan, M Edward III Friday, March 28, 2003 12:13 PM 'Kavanaugh, Brett' DOT-DOJ We have reviewed the draft proposal for DOT . . VERSIGHT Document ID: 0.7.18648.6455 - r (b) (5) t 18-1620-B-000101 Berry, Matthew From: Sent: To: Cc: Subject: Berry, Matthew Friday, April 04, 2003 3:55 PM 'brett_m._kavanaugh@who.eop.gov' Whelan, M Edward III DOT/DOJ (b) (5) t Proposal Brett, At the end of this e-mail message, please find our analysis of the issue that you asked us to examine. Matthew Berry Office of Legal Counsel U.S. Department of Justice (202) 514-9700 (b) (5) - VERSIGHT Document ID: 0.7.18648.9535 - 18-1620-B-000102 18-1620-B-000103 Document ID: 01186489535 Whelan, M Edward Ill From: Whe lan, M Edwa rd Ill Sent: Tuesda y, April 08, 2003 6:23 PM To: ' Brett_M._ Kavanaugh@ who.eop.gov ' Ce: Gannon , Curtis; Philbin, Pat rick Subject: RE: Iraqi amdt Brett: The proposed language would amend the def inition of "blocked asset" to include any asset "with respe ct to which financial transa ctions are in any respe ct proh ibited , res tricted , regu lated or licensed pursuan t to Chapter V of Title 31 of the Code of Federa l Regulat ions (includ ing but not limited to Part s 515, 535, 550, 560 , 575, 595, 596 and 597 of Title 31 of the Code of Federa l Regulat ions )." Chapter V of Title 31 of the CFR se ts forth OFACregs. The part icular part s spec ified in th e pa ren thetical as included relate to vari ous coun tries (including Iraq) and to terror ism genera lly. On a quick read , we unders tan d the proposed language to have either (or, conce ivab ly, both ) of two object ives : (b) (5) (b) (5) Ed ----Or ig ina l Message---From : Brett_ M._ Kavanaugh@ who.eop.gov [ma ilto:Brett_M._Kavanau gh@who.eop.go v] Sent: Tuesda y, April 08, 2003 5:23 PM To: Whe lan, M Edwa rd Ill Subject: FW: Iraq i amd t ------ VERSIGHT Document ID: 0.7.18648.9536 Forwarded by Brett M. Kavanaugh/WHO/EOP on 04/08/2003 05:22 PM ----18-1620-B-000104 From: Kristen Silver berg /W HO/ EOP@Exchan ge on 04/ 08/200 3 05:2 1:57 PM Record Type: Record To: Jay P. Lefkowit z/OPD/EOP@ Exchan ge , Brett M. Kavanau gh/W HO/ EOP@EOP cc: Subject: FW: Iraqi am dt ---O rigina l Message-- From: Pellet ier, Eric C. Sent: Tuesda y, April 08, 2003 4:59 PM To: Silverberg , Krist en; Bellinge r, John B.; Dorn, Nancy Cc: Keniry, Daniel ; Cox, Christopher C.; Ross man , Elizab eth L. Subject: FW: Iraqi a mdt Below you will see a reques t to put a provision in de aling with Iraqi asse ts in the su pp. This is coming from th e House poss ibly in res ponse to th e Iranian related provision in the Senate versiorn of th e bill. (b) (5) Than ks. -- -Origina l Mess a ge-From: Cox, Christ oph er C. Sent: Tuesd ay, April 08, 2003 3:01 PM To: Pelletier, Eric C. Subject: Fw: Iraqi am dt Eric, can you help me with a read on this for th e Speaker? It is being considered for inclus ion in the supp. -- -O rigina l Mess a ge--- From: "Peterlin, Mar ga ret" @EOP (NOTES:"Peterlin, Ma rgaret" @EOP) To : Cox, Christopher C. Sent: Tue Apr 08 12:54:03 2003 Subject: Iraqi am dt VERSIGHT Document ID: 0.7.18648.9536 18-1620-B-000105 Chris, Here is th e language that we are be ing asked to sup port to help out the 200 Iraqi human shields that are affected by the E.O. Can you have someone look at it and let me know his opinion of th e lega l effec t. Thanks, M > ----Or igina l Message---> > Section 201 of the Terrorism Risk Insurance Act of 2002, Pub. L. _,> is amended by insert ing in subparagrap h (d){2){A)after "{SOU.S.C. > 1701; 1702)" the following phrase: > > ", or with respec t to which financial transa ctions are in any respec t> prohibited, restr ict ed , regu lated or licensed pursuant to Chapter V of> Title 31 of the Code of Federa l Regulat ions (including but not limited > to Parts S 15, 535, 550, 560, 575, 595, 596 and 597 of Title 31 of the > Code fo Federa l Regulat ions);" > > > - att1.em l «a tt 1.em l» {See attached file: att1.em l) VERSIGHT Document ID: 0.7.18648.9536 18-1620-B-000106 Whelan, M Edward Ill From: Whe lan, M Edwa rd Ill Sent: Thursda y, April 10, 2003 11 :08 AM To: 'Kavanaugh , Brett ' Subject: FW: ant i-lobbying act ques tion (b) (5) I'm forward ing Dan' s though ts. ---Orig inal Message-From: Koffsky, Danie l L Sent: Thursda y, April 10, 2003 10:58 AM To: Whelan, M Edwa rd Ill Subject: RE: ant i-lobbyin g act ques tion (b) (5) (b) (5) 18-1620-B-000107 Document ID: 0.7.18648.9541 (b) (5) ---Or igina l Mess a ge-From : Whelan, M Edward Ill Sent: Thursd ay, April 10, 2003 9:48 AM To: Koffs ky, Daniel L Subject: FW: anti-lobbying act ques tion Thoughts? -- -Origina l Message- From: Brett_ M._ Kavanau gh@who.eo p.gov [mailto:Brett_ M._Kavanau gh@who.eo p.gov] Sent: Thursd ay, April 10, 2003 9 :45 AM To: Whelan , M Edward Ill Subject: ant i-lobbying act ques tion If the White House web site had some thing eq uivalent to the following, any problem under Anti(b) (5) Lobbying Act. VERSIGHT Document ID: 0.7.18648.9541 18-1620-B-000108 Whelan , M Edward Ill From: Whelan, M Edwa rd Ill Se nt: Thursd ay, April 10, 2003 2 :49 PM To: 'Kavanaugh, Brett ' Subje ct: FW: ant i-lobbying act ques tion fyi ---- Origina l Message ----From: Koffs ky, Dani el L Sent: Thursd ay, April 10, 2003 2:49 PM To: Whelan , M Edwa rd Ill Subject: RE: ant i-lobbying act ques tion (b) (5) {If you want more back ground, I have a CRS Report on anti-lobbying res t rictions from 1995. Also , the GAO Red book ha s ab out 40 pa ges on the various res trictions.) --Dan -- - Origina l Message --- From: Whelan, M Edwa rd Ill Sent : Thursd ay, April 10, 2003 9:48 AM duplicate VERSIGHT Document ID: 0.7.18648.9545 18-1620-B-000109 duplicate 18-1620-B-000110 Document ID: 01186489545 Whelan, M Edward III Whelan, M Edward III Monday, April 14, 2003 9:33 AM 'Kavanaugh, Brett' National Mediation Board From: Sent: To: Subject: Here is our informal advice responding to your questions: 1. h." (b) (5) y." : . It he to I d. ■ " 2. You asked whether (b) (5) . - . ■ This question may best be addressed in two subparts: a. (b) (5) - ? s. he nd an w. r (b) (5) o. . b. (b) (5) ? f (b) (5) . . . . . . (b) (5) . - , l f t . VERSIGHT Document ID: 0.7.18648.9546 18-1620-B-000111 Whelan , M Edward Ill From: Whelan, M Edwa rd Ill Se nt: Monday, April 14, 2003 7:31 PM To: ' Brett_ M._ Kavanaug h@who.eop .gov' Subje ct: Re : Nat iona l Med iat ion Board (b) (5) Altern at ively, we could do further rese arch int o the ca se law. -- -Origina l Message --From : Brett_ M._ Kavanau gh@who .eo p.gov To : Whelan, M Edwa rd Ill Sent: Mon Apr 14 18:52 :29 2003 Subject: Re: Nation al Med iat ion Board (b) (5) {Embedded image moved "M.Edward .Whelan@ usdo j.gov" To: Whe lan, M Edward Ill Sent: Mon Apr 14 1-8:30:22 2003 Subject: Re: Nat iona l Med iat ion Board (b) (5) {Embedded image moved "M. Edwa rd.Whe lan@usdoj.gov" To:Brett M. Kavanaugh/WHO/EOP@EOP Cc: (Rece ipt Notificat ion Reque sted ) (1PM Return Requested ) Date: 04 19 2003 11:07 :50 AM duplicate VERSIGHT Document ID: 0.7.18648.9555 18-1620-B-000118 Whelan , M Edward Ill From: Whelan, M Edwa rd Ill Sent: Tuesd ay, April 22, 2003 3:56 PM To: ' Brett_M._Kavanau gh@who.eo p.gov' Subject: RE: an oth er Koffsky Q (b) (5) -- -Origina l Mess a ge-From: Brett_ M._ Kavanau gh@who. eop.gov {ma ilto:Brett_M._Kavanau gh@who.eo p.gov] Sent: Tuesda y, April 22, 2003 10:37 AM To: Whelan , M Edwa rd Ill Subject: RE: anoth er Koff sky Q Did they app ly th is also to (b) (5) ? {Embedded image moved "M.Edwa rd.Whelan@u sdoj.gov" May 5, 1995 JUDGE ABNER J. MIKVA, COUNSEL TO THE PRESIDENT Dawn Johnsen, Deputy Assistant Attorney General Re: Whether 18 U.S.C. Section 603 Bars Civilian Executive Branch Employees and Officers from Making Contributions to a President's Authorized Re-election Campaign Committee. lederman You have asked for our opinion with respect to whether 18 U.S.C. Section 603 would bar civilian Executive Branch employees and officers from making contributions to a President's authorized re-election campaign committee. For the reasons expressed below, we conclude that such employees and officers would not violate Section 603 by making such contributions, without more. I. Between 1980 and 1993, 18 U.S.C. Section 603 provided as follows: (a) It shall be unlawful for an officer or employee of the United States or any department or agency thereof, or a person receiving any salary or compensation for services from money derived from the Treasury of the United States, to make any contribution within the meaning of section 301(8) of the Federal Election Campaign Act of 1971 to any other such officer, employee or person or to any Senator or Representative in, or Delegate or Resident Commissioner to, the Congress, if the person receiving such contribution is the employer or employing authority of the person making the contribution. Any person who VERSIGHT Document ID: 0.7.18648.9561 18-1620-B-000121 violates this section shall be fined not more than $5,000 or imprisoned not more than three years, or both. (b) For purposes of this section, a contribution to an authorized committee as defined in section 302(e)(1) of the Federal Election Campaign Act of 1971 shall be considered a contribution to the individual who has authorized such committee. See Pub. L. No. 96-187, Section 201(a)(4), 93 Stat. 1367 (1980). As this Office explained in a 1984 Memorandum to the White House Counsel, it was far from clear whether this iteration of Section 603 did, or constitutionally could, bar all Executive Branch employees from making contributions to a President's re- election campaign committee. See Memorandum to Fred F. Fielding, Counsel to the President, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, re: Application of 18 U.S.C. Section 603 to Federal Employee Contributions to the President's Authorized Re-election Campaign Committee (Feb. 6, 1984) ("1984 Olson Memo"). We concluded that "(s)erious uncertainty exists concerning whom the statute covers, under what circumstances it was intended to be applicable, and why it was promulgated." Id. at 2. In particular, it was uncertain whether the use of the phrase "employing authority" in Section 603 was so broad as to proscribe contributions to a President's reelection campaign by all Executive Branch employees; given the President's constitutional authority as Chief Executive and as Commander-inChief, a plausible reading of the language of Section 603 could have prohibited most, if not all, of the more than five million Executive Branch employees and military personnel from making such contributions. See id. at 6, 33. The ambiguity of Section 603's coverage was exacerbated by the fact that there has never been a reported prosecution under Section 603 or its predecessor statutes, /1/ and by the absence of any determinative legislative history concerning application of Section 603 in the Executive Branch, see id. at 18. In his statement upon signing into law the legislation creating the "employing authority" version of Section 603, President Carter stated that the prohibition would cause a "severe infringement of Federal employees' first amendment rights." Federal Election Campaign Act Amendments of 1979: Statement on Signing H.R. 5010 Into Law, 1 Pub. Papers of Jimmy Carter 37, 37 (Jan. 8, 1980). President Carter characterized Section 603 as "an unacceptable and unwise intrusion" on the First Amendment rights of federal employees that "raises grave constitutional concerns." Id. at 38. Accordingly, he urged that Section 603 "be promptly repealed or amended so as to remove its chilling effect on the rights of citizens to make voluntary contributions to the candidates of their choice." Id. The chief sponsors of the 1980 revision of Section 603 attempted to assure President Carter that the statute was not intended to impose such a broad prohibition, see 1984 Olson Memo at 18-20; nevertheless, prior to 1993, Congress failed to repeal the statute or amend it to reflect the narrow scope described and intended by its sponsors. This Office also was of the opinion that, if former Section 603 were read to proscribe contributions to a President's campaign from all (or virtually all) Executive Branch employees, it would in all likelihood be unconstitutional. See id. at 35. Therefore, we opined that the statute would best be interpreted more narrowly, so as to avoid such possible constitutional infirmities. Id. at 35-39. In particular, we reasoned that AMERICAN PVERSIGHT Document ID: 0.7.18648.9561 18-1620-B-000122 the constitutional considerations which bear upon the phrase "employer or employing authority" as applied to the President require that the phrase be construed narrowly to apply only to those persons in Government service who may reasonably be expected to be subject to some form of subtle pressure to contribute to the President's re-election committee because of the President's status as their immediate "employer or employing authority." Id. at 36 (emphasis added). See also id. at 3. /2/ Despite this conclusion, we nonetheless warned that "it is by no means certain that a court would adopt a construction of section 603 which prohibited contributions only when made by the President's 'inner circle' of political appointees." Id. at 39. And, because we were "unable to predict with confidence precisely how the statute would be construed by the courts," id. at 42, the White House consistently has advised Executive Branch employees not to contribute to a President's re-election campaign. See, e.g., Memorandum for the Heads of All Departments and Agencies, from C. Boyden Gray, Counsel to the President, re: 18 U.S.C. Section 603 (Nov. 15, 1991) ("regret(fully)" advising employees that though a broad reading of Section 603 "would raise grave constitutional concerns, prudence requires that any ambiguity in the language of this statute be resolved against placing any Presidential appointee or other Federal employee in the position of inadvertently violating Federal law"). II. As part of the Hatch Act Reform Amendments of 1993 ("HARA"), Congress added a new subsection (c) to Section 603. Pub. L. No. 103-94, Section 4(b), 107 Stat. 1001, 1005 ("HARA"). 18 U.S.C. Section 603(c), which became effective on February 3, 1994, see HARA Section 12(a), 107 Stat. at 1011, provides that (t)he prohibition in subsection (a) shall not apply to any activity of an employee (as defined in section 7322(1) of title 5) or any individual employed in or under the United States Postal Service or the Postal Rate Commission, unless that activity is prohibited by section 7323 or 7324 of such title. Congress's evident intent was to "conform" Section 603 to the Hatch Act, so that employees subject to the Hatch Act could not be convicted under Section 603 for engaging in activities that are not prohibited by the civil provisions of the Hatch Act itself. See, e.g., S. Rep. No. 57, 103d Cong., 1st Sess. 15-16 (1993), reprinted in 1993 U.S.C.C.A.N. 1802, 1816-17. For present purposes, this restriction on the scope of the prohibition in Section 603(a) raises but two questions: (A) which employees and officers may be subject to the limitation in Section 603(c); and, (B) with respect to those employees and officers who are covered by Section 603, whether such persons might violate Sections 7323 and 7324 of the HARA by making contributions to a President's re-election campaign committee. A. In addition to individuals "employed in or under the United States Postal Service or the Postal Rate Commission," to whom Section 603(c) makes explicit reference, Section 603(c) covers all persons who are defined as "employees" under the HARA, 5 U.S.C. Section 7322(1). Section 7322(1) reads: "(E)mployee" means any individual, other than the President and the Vice President, employed or holding office in -(A) an Executive agency other than the General AMERICAN PVERSIGHT Document ID: 0.7.18648.9561 18-1620-B-000123 Accounting Office; (B) a position within the competitive service which is not in an Executive agency; or (C) the government of the District of Columbia, other than the Mayor or a member of the City Council or the Recorder of Deeds; but does not include a member of the uniformed services. Because this definition includes all employees in "Executive agenc(ies)," it includes in its scope (but is not limited to) all Executive Branch employees and officers, with the exception of the President, the Vice President, persons employed in or under the United States Postal Service or the Postal Rate Commission, and members of the uniformed services. /3/ Section 603 by its terms does not bar the President and the Vice President from making contributions to their own campaign committee, and Section 603(c) explicitly includes within the scope of its exception persons "employed in or under the United States Postal Service or the Postal Rate Commission." Therefore, Section 603(c) applies to the entire Executive Branch with the possible exception of members of the uniformed services. /4/ Therefore, the prohibition in Section 603(a) does not apply to any activity of such persons unless that activity is prohibited by 5 U.S.C. Sections 7323 and 7324. B. There is nothing in Sections 7323 and 7324 that bars Executive Branch employees and officers from making contributions to a President's re-election campaign committee, without more. Indeed, the Hatch Act itself has never barred such action. Prior to the HARA, the Office of Personnel Management ("OPM") interpreted the Hatch Act to permit employees to make financial contributions to a political party or organization. See 5 C.F.R. Section 733.111(a)(8) (Jan. 1, 1994) (pre-HARA regulations). /5/ Subsequent to the HARA, OPM has reiterated this regulation, and explicitly has added that an employee may make a contribution to a campaign committee of a candidate for public office. See 5 C.F.R. Sections 734.208(a), 734.404(d) (Jan. 1, 1995) (proposed post-HARA regulations). Therefore, because an Executive Branch employee or officer would not violate Section 7323 or Section 7324 simply by making a contribution to a President's re-election campaign committee, it follows that, pursuant to 18 U.S.C. Section 603(c), such an Executive Branch employee or officer (other than a member of the uniformed services) would not violate the criminal prohibition found in Section 603(a) simply by making such a contribution. III. Two caveats should be mentioned. First, there is one conceivable (albeit unlikely) circumstance under which the making of a contribution to a President's campaign committee might violate Section 7324, and therefore be subject to criminal sanctions under 18 U.S.C. Section 603. Congress indicated in section 4 of the HARA, 107 Stat. at 1005 (creating 18 U.S.C. Section 610) that "making . . . any political contribution" is "political activity." /6/ Thus, making a contribution to a President's re-election campaign committee is "political activity" under the HARA. Under Section 7324, almost all HARA- covered employees may not engage in "political activity": (i) while on duty; (ii) while in "any room or building occupied in the discharge of official duties by an individual employed or holding office in the Government of the United States or any agency or instrumentality thereof"; (iii) while wearing a uniform or official AMERICAN PVERSIGHT Document ID: 0.7.18648.9561 18-1620-B-000124 insignia identifying the employee's office or position; or (iv) while using any vehicle owned or leased by the federal government. 5 U.S.C. Sections 7324(a)(1)-(4). /7/ It follows that an Executive Branch employee covered under Section 7324(a) could violate that provision by making a contribution to the President's campaign committee while on duty or while in a federal building -- for example, by hand-delivering a contribution to another federal employee who is an officer of that committee. In the unlikely event of such a violation of Section 7324, the employee could be subject to the criminal sanctions of Section 603, as well. Second, it should be kept in mind that, even where Section 603 does not bar Executive Branch employees and officers from making political contributions, nonetheless there remain limitations on the solicitation of such contributions by federal employees and officers and by the President. See, e.g., 5 U.S.C. Section 7323(a)(2), 18 U.S.C. Sections 602, 607. /8/ This Opinion does not address the scope of those solicitation limitations. /9/ CONCLUSION Civilian employees and officers in the Executive Branch would not violate 18 U.S.C. Section 603, as amended, simply by making a contribution to a President's authorized re-election campaign committee, without more. /1/ The Criminal Division has informed us that it is unaware of any prosecutions ever being brought under Section 603. /2/ We further explained that, under such a circumscribed reading, a "reasonable expectation of such political pressure could be argued to exist as a result of three elements in an employment relationship involving the President: (1) the President personally appoints the contributor, or employs him pursuant to his discretionary authority under 3 U.S.C. Section 105; (2) the President personally supervises the performance of the contributor; and (3) the contributor works in an office involved with the political activities of the President." Id. at 36-37. /3/ Section 7322(1) refers to employees in "an Executive agency." "Executive agency" is defined in 5 U.S.C. Section 105 to include "Executive department(s)," "Government corporation(s)," and "independent establishment(s)." The "Executive department(s)" are defined in 5 U.S.C. Section 101 to include all Cabinet-level agencies. "Government corporation(s)" are defined in 5 U.S.C. Section 103 to include corporations owned and/or controlled by the United States. An "independent establishment" is defined in 5 U.S.C. Section 104(1) to mean, inter alia, "an establishment in the executive branch (other than the United States Postal Service or the Postal Rate Commission) which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment." We do not in this Opinion address whether any particular entity or establishment is "in the executive branch" for purposes of Title 5. /4/ We do not address herein the status of members of the uniformed services under Section 603. We simply note that, if Section 603(c) does not apply to members of the uniformed services, then the discussion in the 1984 Olson Memo concerning the ambiguity, AMERICAN PVERSIGHT Document ID: 0.7.18648.9561 18-1620-B-000125 constitutionality, and possible limiting constructions of Section 603 would continue to be of relevance with respect to such persons. /5/ This interpretation conformed to the regulation promulgated by the Civil Service Commission at the dawn of the Hatch Act in 1939. See CSC v. National Ass'n of Letter Carriers, 413 U.S. 548, 584 (1973) (quoting CSC Form 1236, "Political Activity and Political Assessments of Federal Officeholders and Employees," Section 17, at 7 (1939)). Congress effectively adopted this 1939 CSC regulation as a substantive part of the Hatch Act itself. See Memorandum for James B. King, Director, Office of Personnel Management, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, re: Whether Use of Federal Payroll Allocation System by Executive Branch Employees for Contributions to Political Action Committees Would Violate the Hatch Act Reform Amendments of 1993 or 18 U.S.C. Sections 602 and 607, at 17-19 (Feb. 22, 1995) ("1995 Dellinger Memo"). /6/ "Political contribution," in turn, is defined to include "any gift . . . or deposit of money or anything of value, made for any political purpose." 5 U.S.C. Section 7322(3)(A). See also 1995 Dellinger Memo at 26-28 (discussing Congress's obvious intent that "political activity" be read as broadly as possible). /7/ An exception to these prohibitions is made for certain employees "the duties and responsibilities of whose position(s) continue outside normal duty hours and while away from the normal duty post," and who are either (i) "employee(s) paid from an appropriation for the Executive Office of the President"; or (ii) "employee(s) appointed by the President, by and with the advice and consent of the Senate, whose position(s) (are) located within the United States, who determine() policies to be pursued by the United States in relations with foreign powers or in the nationwide administration of Federal laws." 5 U.S.C. Section 7324(b)(2). Such employees "may engage in political activity otherwise prohibited by subsection (a)," 5 U.S.C. Section 7324(b)(1), such as political activity on duty, but only "if the costs associated with that political activity are not paid for by money derived from the Treasury of the United States." Id. Section 7324(b)(1). /8/ See 1995 Dellinger Memo at 7-12 (discussing the meaning of "solicit" in these statutes). /9/ One clarification is worth brief mention, however. Though 18 U.S.C. Section 602(a)(4) prohibits the President, as well as other federal employees, from knowingly soliciting political contributions from other federal officers and employees, Congress intended that "(i)n order for a solicitation to be a violation of this section, it must be actually known that the person who is being solicited is a federal employee"; thus, "(m)erely mailing to a list (that) no doubt contain(s) names of federal employees is not a violation of (Section 602)." H.R. Rep. No. 422, 96th Cong., 1st Sess. 25 (1979), reprinted in 1979 U.S.C.C.A.N. 2860, 2885. AMERICAN PVERSIGHT Document ID: 0.7.18648.9561 18-1620-B-000126 Brett_M._Kavanaugh@who.eop.gov Brett_M._Kavanaugh@who.eop.go v From: Sent: Monday, May 19, 2003 9:55 AM To: Whelan, M Edward Ill Subject: draft memo (b) (5) Attachments: memo 5 19 03.doc Can you all review thi s draft memo as well. Thanks. {See attach ed file: VERSIGHT Document ID: 0.7.18648.9565 (b) (5) memo 5 19 03.doc) 18-1620-B-000127 Whelan , M Edward Ill From: Whelan, M Edward Ill Sent: Monday, May 19, 2003 12:44 PM To: ' Brett_M._Kavanaug h@who.eo p.gov' Subject: RE: draft memo The memo looks good . We have these comments (prese nted in the order of the memo): (b) (5) (b) (5) (b) (5) (b) (5) (b) (5) ---- Original Message-- -From: Brett_M._Kavanau gh@who.eo p.gov [mailto:Brett_M._Kavanau gh@who.eo p.gov] Sent: Monday, May 19, 2003 9:55 AM duplicate VERSIGHT Document ID: 0.7.18648.9562 18-1620-B-000128 Whelan, M Edward III From: Sent: To: Whelan, M Edward III Monday, May 19, 2003 2:56 PM 'Kavanaugh, Brett' Here are some typical OLC statements:  It is a well settled principle of law, applied frequently by both the Supreme Court and the executive branch, that statutes that do not expressly apply to the President must be construed as not applying to him if such application would involve a possible conflict with his constitutional prerogatives. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992).  If Congress intends to trench upon a core Presidential power, it must do so in terms that admit of no ambiguity. See, e.g., Franklin v. Massachusetts, 112 S. Ct. 2767, 2775 (1992). Let's talk. VERSIGHT Document ID: 0.7.18648.9563 18-1620-B-000129 Whelan , M Edward Ill From: Whelan, M Edwa rd Ill Sent: Monday, May 19, 2003 5:48 PM To: ' Brett_M._Kavanaug h@who.eo p.gov' Subject: RE: th oughts (b) (5) ----Or iginal Message- ---From : Brett_ M._ Kavanau gh@who.eo p.gov [ma ilto:Brett_M._Kavanau gh@who.eo p.gov] Sent: Monday, May 19, 2003 4 :35 PM To: Whelan, M Edwa rd Ill Subject: thoughts (b) (5) (b) (5) VERSIGHT Document ID: 0.7.18648.9564 18-1620-B-000130 18-1620-B-000131 Document ID: 01186489564 Whelan, M Edward III From: Sent: To: Subject: Attachments: Attached. I've made a few other minor changes. VERSIGHT Document ID: 0.7.18648.9568 Whelan, M Edward III Wednesday, May 21, 2003 12:17 PM 'Kavanaugh, Brett' section 603 opinion kavanaugh haddon2.wpd (b) (5) 18-1620-B-000132 Whelan, M Edward Ill Whe lan, M Edwa rd Ill From: Sent: Tuesda y, May 27, 2003 7:58 AM To: 'Kavanaugh , Brett ' Subject: FW: Attachments: (b) (5) •. wpd Please find attach ed Dan's draft , along with a coup le comments be low. ---Or igina l Message---From: Koffsky, Danie l L Sent: Frida y, May 23, 2003 5:31 PM To: Whelan , M Edwa rd Ill Subject: RE: Ed: I'm attach ing a draft of the summa ry for which Brett asked. One issue is iden tified in th e language that I've put in bold in the draft ; an other issue isn 't dea lt with, because it's outs ide what Brett reques t ed , but I wan t to note it for you. (b) (5) VERSIGHT Document ID: 0.7.18648.9572 18-1620-B-000133 (b) (5) (b) (5) - - -Dan --Or igina l Message--- -From: Whe lan , M Edward Ill Sent: Tuesda y, May 20, 2003 1:30 PM To: Koffsky, Daniel L Subject: FW: Would you please hand le? ---Or igina l Mes sage-From: Brett_M._Kavanaugh@who.eop.gov {mailto:Brett_M._Kavanaugh@who.eop.gov ] Sent: Tuesday , May 20, 2003 1:16 PM To: Whelan , M Edward Ill Subject: Can Dan do a summary of the rules and regs (as you all interp ret them ) app licab le to VERSIGHT Document ID: 0.7.18648.9572 (b) (5) 18-1620-B-000134 Whelan, M Edward III From: Sent: To: Subject: Whelan, M Edward III Monday, June 02, 2003 2:32 PM 'Kavanaugh, Brett' FW: Dellinger opinion on Anti-Lobbying Act fyi -----Original Message----From: Koffsky, Daniel L Sent: Monday, June 02, 2003 2:21 PM To: Whelan, M Edward III RE: Dellinger opinion on Anti-Lobbying Act Subject: rt. (b) (5) . in . (1 : f (b) (5) " r " . (2 (b) (5) l , . (3 (b) (5) -----Original Message----From: Whelan, M Edward III Sent: Monday, June 02, 2003 1:41 PM To: Koffsky, Daniel L Subject: Dellinger opinion on Anti-Lobbying Act - Brett asks . That's correct, right? VERSIGHT Document ID: 0.7.18648.9570 (b) (5) 18-1620-B-000135 Whelan, M Edward Ill From: Whe lan, M Edwa rd Ill Sent: Monday , June 02, 2003 4:29 PM To: 'Kavanaugh , Brett ' Subject: FW: se ction 623 ----Or igina l Message ----From: Koffsky, Danie l L Sent: Monday, June 02, 2003 4:28 PM To: Whelan , M Edwa rd Ill Subjec t: RE: se ction 623 Ed: The 1995 guidance doesn 't sa y much about approp riat ions riders. I've copied below a coup le of ema ils from April 10 that attempt to explain what the riders mean. I'm pretty sure that you forwarded at leas t the first of these e-ma ils to Brett. (b) (5) --Dan (b) (5) 18-1620-B-000136 Document ID: 0.7.18648.9574 (b) (5) (b) (5) {If you want more background , I have a CRS Report on ant i-lobbying restr ictions from 1995. Also, the GAO Red book ha s about 40 page s on the various restr ictions.) --Dan ----Or igina l Message-- --18-1620-B-000137 Document ID: 0.7.18648.9574 From: Whe lan , M Edward Ill Sent: Monda y, June 02, 2003 3:03 PM To: Koffsky, Daniel L Subject: FW: se ction 623 FYI: After forwarding to Brett your e-mail on the Anti-Lobbying Act, I received (app are ntly in reply) thee mail below. Would you please review? -- -Origina l Message --From: Brett_M._Kavanau gh@who.eo p.gov [mailto:Brett_M._Kavanau gh@who.eo p.gov] Sent: Monday, June 02, 2003 2:38 PM To: Whelan , M Edward Ill Subject: FW: se ction 623 (b) (5) ? (b) (5) SEC. 623. No part of any funds app ropriat ed in this or any other Act sha ll be used by an age ncy of th e executive bran ch, other than for normal an d recognized exe cutive-leg islat ive relat ionship.s, for publicity or propa ganda purposes , an d for the prepa rat ion, distribution or use of any kit, pamph let, booklet, publicat ion, radio, t elevision or film prese ntat ion des igned t o support or defe at leg islat ion pending before the Congres.s, except in prese ntat ion to the Congress itse lf. VERSIGHT Document ID: 0.7.18648.9574 18-1620-B-000138 Brett_M._Kavanaugh@who.eop.gov Brett_ M._Kavanau gh@who.eo p.gov From: Sent: Thursd ay, Augus t 28, 2003 12 :14 AM To: Whelan, M Edwa rd Ill Subject: RE: (b) (5) ? Interes ting. Had thoug ht ab out this as well. Not sure of status. ----Or iginal Message-- --From : M.Edwa rd.Wh elan@ usdo j.gov (mailto :M.Edwa rd .Whelan@usdoj.gov) Sent: Monda y, August 11, 2003 8:50 AM To:Kavanau gh, BrettM. (b) (5) Subject: D VERSIGHT Document ID: 0.7.18648.9576 18-1620-B-000139 Whelan , M Edward Ill From: Whelan, M Edwa rd Ill Sent: Friday, February 20, 2004 11:17 AM To: ' Brett_M._ Kavanau gh@who.eo p.gov' Subject: RE: Basica lly I'll be the de an of a facu lty that does n't have stu de nts an d that is focused on th e dee per iss ues unde rlying cu rrent controvers ies . At the very beg inning, that will involve a lot of mana ge ment, fundraising, etc., but once I ge t se tt led I should have t ime t o do so me resear ch and writ in g of my own. I don't know how fam iliar you are with the Center. It's a gre at place . George Weige l is a se nior fellow th ere, an d Eric Cohen, who I unders tood works close ly with th e Pres ide nt's bioethics counci l, heads up a burgeo ning biotech progra m. Fr. Neuha us (of First Things ), Robby George (of Princeton), an d Jean e Kirkpat rick are the mos t act ive members of the board. Hope you're doing well. -- -Origina l Mess a ge--From: Brett_ M._ Kavanau gh@who.eo p.gov (ma ilto:Brett_M._Kavanaugh@wh o.eo p.gov] Sent: Friday, Februa ry 20, 2004 11:03 AM To: Whelan , M Edward Ill Subject: RE: Excellen t. What will you be doing? ----Or igina l Mess a ge----From: M.Edwa rd .Whelan@u sdoj.gov [ma ilto:M.Edward .Whelan@u sdoj.gov] Sent: Friday, February 20, 2004 11:02 AM To: Kavanau gh, Brett M. Subject: Brett: Just wanted to let you know that I have acc epted a pos ition as the new Pres ide nt of the Ethics & Public Policy Center. My la st day at OLC will likely be March 19. I hope to have th e o cca sion to work toge ther with you and the Administrat ion in my new capacity. Ed VERSIGHT Document ID: 0.7.18648.9589 18-1620-B-000140 Whelan, M Edward III From: Sent: To: Whelan, M Edward III Wednesday, March 03, 2004 11:07 AM 'Kavanaugh, Brett' Pardon my request for a favor: I'd be very interested in a brief meeting with Karl Rove once I start at the Ethics and Public Policy Center, as I think that EPPC will be involved in lots of matters of interest to the White House. It would be ideal if I could meet with him late in the week of March 22 (my first week in the new job), but I would of course be grateful to meet with him at any time. Is that something you could help me arrange? VERSIGHT Document ID: 0.7.18648.9594 18-1620-B-000141 Whelan, M Edward III From: Sent: To: Subject: Whelan, M Edward III Tuesday, March 16, 2004 4:57 PM 'Kavanaugh, Brett' Ruth's Chris If you want to make sure that we're still around when you're able to come over, you're welcome to give me a call ( ) or e-mail me. N.B.: The address is 724 9th Street; it's not the one up (b) (6) Connecticut Ave. VERSIGHT Document ID: 0.7.18648.9596 18-1620-B-000142 Whelan, M Edward III From: Sent: To: Cc: Subject: Whelan, M Edward III Friday, March 19, 2004 6:40 PM 'ewhelan@eppc.org' Boyle, Brian D; Bradshaw, Sheldon (CRT); Caterini, John; Clement, Paul D; Colborn, Paul P; Francisco, Noel; Gannon, Curtis; Goldsmith, Jack; Hart, Rosemary; Hofer, Patrick F.; 'Kavanaugh, Brett'; Lerner, Renee; Madan, Rafael; Nielson, Howard; Philbin, Patrick test -- please ignore (This is my means of transferring your e-mail addresses to my new job.) VERSIGHT Document ID: 0.7.18648.9598 18-1620-B-000143 Brian_R. Naranjo@nse.eop.gov From: Sent: Brian_ R._ Naranjo@nsc.eo p.gov Wed nesd ay, December 07, 2005 4:31 PM To: John_B._Wieg mann@n sc.eo p.gov; Harriet_Miers @who.eo p.gov; Brett_M._Kavanaugh@who.eo p.gov Ce: Bradbury, Steve; Pres tes , Brian Subject: Attachments: RE: Press Q&A re Rice Stat ement _(b) (5) , tmp.htm Brad -- I showed th is to Or. Crouch. He reviewed it, is fine with it, an d asks t o make sure t hat Ms. Miers and Mr. Bradbury a re fine with it too. BRN -- --Origina l Message ---From: Wieg mann , John B. Sent: Wed nesd ay, December 07, 2005 3:47 PM To: Wieg mann, John B.; Miers, Harriet; Kavanaugh, Brett M.; Naranjo, Brian R. Cc: 'Steve.Bradbury@usdoj.gov'; ' Brian.Pres tes @usdoj.gov' Subject: RE: Press Q&A re Rice Stateme nt _(b) (5) , (b) (5) Sorry, I hit the se nd button too fas t on this. Below is a draft q&a on :. I need to ge t clearanc e on the substanc e an d on its use before I se nd it to our press peo ple for commen t. Brian N., can you please sha re wit h JO asa p? From: Wieg ma nn, John B. Sent: Wed nesd ay, Dece mber 07, 2005 3:43 PM To: Miers , Harriet; Kavanaugh, Brett M.; Naranjo, Brian R. Subject: Press Q&A re Rice Cc: 'Steve.Bradbury@usdoj.gov'; ' Brian.Pres tes @usdoj.gov' Statemen t _(b) (5) , (b) (5) (b) (5) VERSIGHT Document ID: 0.7.18648.5464 18-1620-B-000144 (b) (5) (b) (5) (b) (5) (b) (5) Q: (b) (5) (b) (5) (b) (5) VERSIGHT Document ID: 0.7.18648.5464 18-1620-B-000145 Brad - I showed this to Dr. Crouch. He reviewed it, is fine with it, and asks to make sure that Ms . Miers and Mr. Bradbury are fine with it too . BRN duplicate p\tERSIGHT Document ID: 0.7.18648.5464-000001 18-1620-B-000146 18-1620-B-000147 Document ID: 0.7.18648.5464-000001 Michael O'Neill@judiciary-rep.senate.gov From: Sent: Michae l_ O' Neill@judiciary-rep.senate.gov To: Hert ling, Richard ; Seide l, Rebecca ; McNulty, Pau l J; Clement , Paul D; Sampson , Kyle; Katsas , Gregory {CIV); da ve_ blake@usdo j .gov; Fisher , Alice ; Mosche lla, William ; Siga l.Mande lker@usdoj.gov; Brand, Rache l; Elwood , John ; Tay lor, Jeffre y (OAG); Dan_ Bryant@usdoj.gov; Dahl, Alexander ; rene _ i._ august ine@ who.eop.gov ; Brenda_ Becker@vp.senate.gov; jbrosnahan@ who.eop.gov ; jam ie_ E._ Brown@who.eop.gov; Brett_M_Kavanaugh@ who.eop.gov; Dabney_Fr iedr ich@who.eop.gov; Saturda y, December 10, 2005 2:54 PM (b)(6): Douglas Ginsburg (D.C. Cir) (b)(6): Thomas Griffith (D.C. Cir.) William_K._ Kelley@who.eop.gov; matthew _kirk@who.eop.gov; Rohit_ Kumar@frist.senate.gov; (b)(6): Richard Leon (D.D.C.) Gary_Ma lphrus@opd.eop.gov; harr iet.m iers@who.eop.gov ; kristen _ silverberg@ who.eop.gov; (b)(6): "thomasv3" (personal) J_ E_ Williams@ who.eop.gov ; Candida_ P._ Wolff@who.eop.gov Cc: Lissa_ Camacho@jud iciary-rep.senate.gov Subject: Christmas Party Invitat ion Attachments: tmp.htm Happ y Holidays! You are cord iall y invited to join us for a We Can't Beli eve We are Bothering to do It This late (but we figured this counts as our Chr istmas card) Holida y Open House on December 17th, 2005 Feel free to drop by an ytime from 7:00 PM unt il 9:30 PM At the Home of VERSIGHT Document ID: 0.7.18648.5008 18-1620-B-000148 Meg 8: Mike O'Neil! (6) 18-1620-B-000149 Document ID: 0.7.18648.5008 Happy Holidays! You are cordially invited to join us for a We Can 't Believe We are Bothering to do It This Late (but we figured this counts as our Christmas card) Holiday Open House on December 17th , 2005 Feel free to drop by anytime from 7:00 PM until 9:30 PM At the Home of Meg & Mike O'Neill (b) (6) VERSIGHT Document ID: 0.7.18648.5008-000001 18-1620-B-000150 Bradbury, Steve From: Bradbury, Steve Sent: Monday , December 19, 2005 7:44 AM To: ' Brett_ M._ Kavanaugh@ who.eop.gov ' Ce: 'Harriet_M iers@ who.eop.gov ' Subject: Re: Q and A for your review ... (b) (5) Some sugge sted ed its or comments: First, (b) (5) (b) (5) (b) (5) " Thx. ----Or igina l Message---- From: Brett_ M._ Kavanaugh@who.eop.gov To: Bradbury, Steve Sent: Mon Dec 19 07:08:27 2005 Subject: Q and A for your review ... (b) (5) VERSIGHT Document ID: 0.7.18648.5503 18-1620-B-000151 18-1620-B-000152 Document ID: 01186485503 Bradbury, Steve From: Sent: To: Bradbury, Steve Monday, December 19, 2005 9:06 PM 'Harriet_Miers@who.eop.gov'; 'Brett_M._Kavanaugh@who.eop.gov'; Sampson, Kyle; Elwood, Courtney; 'John_M._Mitnick@who.eop.gov'; 'John_B._Wiegmann@nsc.eop.gov' Cc: Eisenberg, John New TPs re NSA legal authority Subject: Attachments: NSA Activities_Legal Authority_Talkers_4.doc Attached for further staffing at WH and OAG review is a new set of talking points on the legal authority for the NSA activities, which attempts to incorporate all comments received thus far (b) (5) l. Thx. Steve VERSIGHT Document ID: 0.7.18648.5589 18-1620-B-000153 Sampson, Kyle From: Sampson, Kyle Sent: Tue sd ay, Decembe r 20, 2005 6:05 AM To: 'Harriet_Miers@ who.eop.gov '; Bradbury , Steve; Elwood , Courtney ; John _ B._ Wiegmann@nsc.eop.gov ; Brett_M._Kavanaugh@ who.eop.gov ; John_M._ Mitnick@who.eop.gov Cc: Eisenberg , John Subject: RE: NSAta lking points No object ion. ETA? ----Or igina l Mes sage ---From: Harriet_M iers@ who.eop.gov [ma ilto: Harriet_M iers@ who.eop.gov ) Sent: Tuesday , December 20, 2005 5:52 AM To: Bradbury, Steve; Sampson , Kyle; Elwood , Courtney; John_ B._ Wiegmann@nsc.eop.gov ; Brett_M._Kavanaugh@ who.eop.gov; John_ M._ Mitnick@who.eop.gov Cc: Eise nberg , John Subject: RE: NSAta lking points Will look forward to gett ing it. Thanks. ---Or igina l Mes sage-From: Steve.Bradbury@u sdoj.gov [ma ilto:Steve.Bradbury@u sd oj.gov) Sent: Tuesd ay, Decembe r 20, 2005 5:44 AM To: Kyle.Sampson@usdo j.gov; Courtney.Elwood@usdoj.gov ; Wiegmann , John B.; Kavanaugh, Brett M.; Mitn ick, John M.; Miers , Harriet Cc: John.Eise nbe rg@u sdoj.gov Subject: NSAta lking points Pis hold off on further review of the revised ta lkers I se nt last night. (b) (5) I intend to rearrange the lega l points •, as follows: {1)- (b) (5) (b) (5) (b) (5) Abse nt object ion to th is rearrangement , I intend to push forward with it and circulate a ne w draft ASAP this morning. Steve VERSIGHT Document ID: 0.7.18648.5594 18-1620-B-000154 Bradbury, Steve Bradbury, Steve Tuesday, December 20, 2005 8:17 AM 'Harriet_Miers@who.eop.gov'; 'Brett_M._Kavanaugh@who.eop.gov'; 'John_M._Mitnick@who.eop.gov'; 'John_B._Wiegmann@nsc.eop.gov'; Sampson, Kyle; Elwood, Courtney Cc: Eisenberg, John New NSA talking points -- 12/20 Subject: Attachments: NSA Activities_Legal Authority_Talkers_12_20.doc From: Sent: To: As promised, attached are the newly reordered talking points on legal authority for the NSA activities. think these are now ready to go, subject to any final comments. Thx VERSIGHT Document ID: 0.7.18648.5601 I 18-1620-B-000155 Bradbury, Steve From: Bradbury, Steve Sent: Tuesd ay, December 20, 2005 9:31 AM To: ' Brett_M._Kavanaugh@who.eo p.gov' Subject: RE: New NSAta lking points - 12/20 Definitely. I'm ge ttin g a number of additiona l good sugges tions from OAG, OVP, an d others at OLC. So th ere 'll be yet a furth er turnaround an d perhap s at that point it will be best for you t o circu lat e for comment t o Gen. Hayde n. Alternat ively, it' s fine, if you've already done so, t o circulat e to him the vers ion I se nt earlier this morning. I did speak with Harriet ab out this . Thx. ----Or igina l Mess a ge----From: Brett_M._Kavanaugh@who.eo p.gov [mailto:Brett_M._Kavanaugh@who.eo p.gov] Sent: Tuesda y, December 20, 2005 9:10 AM To: Bradbury, Steve Subject: RE: New NSAta lking points -- 12/20 Steve: I think we should make sure General Hayde n sees th ese before th ey go out. {You may receive same message from Harriet.) -- -O rigina l Message-- - From: Steve .Bradbury@usdoj.gov [mailto:Steve.Bradbury@usdoj.gov] Sent : Tuesd ay, December 20, 2005 8:17 AM duplicate VERSIGHT Document ID: 0.7.18648.5605 18-1620-B-000156 Bradbury, Steve From: Bradbury, Steve Sent: Tuesd ay, December 20, 2005 1:01 PM To: 'Harriet_Miers @who.eo p.gov'; Brett_M._Kavanaugh@who.eo p.gov Subject: RE: Updat ed NSA ta lking points I've cut th e sub-bullet you sugges ted an d fixed the one ab ove it additiona l quotes ou t, per your comment. (b) (5) (b) (5) - · -- --Origina l Mess a ge---From: Harriet_Miers @who.eo p.gov [mailto:Harriet_Miers @who.eo p.gov] Sent: Tuesda y, Dece mber 20, 2005 12:29 PM To: Bradbury, Steve ; Brett_M._Kavanaugh@who.eo p.gov Subject: RE: Updat ed NSAta lking points (b) (5) (b) (5) - --Original Message-- -From: Steve.Bradbury@usdoj.gov [mailto:Steve.Bradbury@usdoj.gov] Sent: Tuesd ay, December 20, 2005 12:16 PM To:Kavanau gh, BrettM. Cc: Miers , Harriet Subject: RE: Updat ed NSAta lking points Others have sugges ted th e same, and we'll work those in. Thx. -- -Origina l Mess a ge-From: Brett_M._Kavanau gh@who.eo p.gov {mailto:Brett_M._Kavanau gh@who.eop .gov] Sent: Tuesda y, December 20, 2005 12:07 PM To: Bradbury, Steve c:, ,t-.;,..,...+, or. 11 ... r1....+,...,..1 MC:/\ +....11.,: ..,.,.. ...,,.. ;..,.+.-- v '-1 vlU Document ID: 0.7.18648.5622 I 18-1620-B-000157 .)U UJ~ Cl : lit. : uµ u ctt ~U 1'4.) J-\ lct lKHl g f.JUHll ::. (b) (5) ---O rigina l Message --From: Steve .Bradbury@usdoj.gov [mailto:Steve.Bradbury@usdoj.gov) Sent: Tuesda y, December 20, 2005 12:02 PM To: Wieg mann , John B.; Miers , Harriet ; Kavanaugh, Brett M.; Mitnick, John M. Cc: John. Eisen berg@usdoj .gov Subject: Updat ed NSAta lking points In res ponse t o se ver al good sugges tions from the AG an d others in OLC, we have provided more de ta il and case support in the points. Brett: You should sha re th is updat ed vers ion with Gen. Hayde n, even if he saw th e last vers ion. I have also now circulat ed this draft to OLA, OLP, an d OPA within OOJ to obta in their comments. I hope we can ach ieve fina l comfort an d sign off all around early this aft ernoon. We are simultaneous ly- (b) (5) draft letter from OOJ OLAto the Hill, and I will circulat e that dra ft shortly. Thx. Steve « NSA Activities_ Legal Authority_Ta lkers_ 12.20pm. doc» VERSIGHT Document ID: 0.7.18648.5622 18-1620-B-000158 Bradbury, Steve From: Bradbury, Steve Sent: Tuesd ay, December 20, 2005 1:56 PM To: 'Harriet_Miers @who.eo p.gov'; Brett_M._Kavanaugh@who.eo p.gov Subject: RE: Updat ed NSA ta lking points (b) (5) -- -Origina l Mess a ge-From: Harriet_Miers @who.eo p.gov [mailto:Harriet_Miers @who.eo p.gov] Sent: Tuesd a December 20 2005 12:29 PM duplicate VERSIGHT Document ID: 0.7.18648.5626 18-1620-B-000159 duplicate 18-1620-B-000160 Document ID: 0.7.18648.5626 Brett_M._Kavanaugh@who.eop.gov Brett_ M._Kavanaugh@who.eo p.gov From: Sent: Tuesd ay, December 20, 2005 2:25 PM To: Bradbury, Steve Subject: RE: Updat ed NSA ta lking points I think Harriet will ta lk to you ab out lates t stat us. -- -Origina l Mess a ge-From: Steve.Bradbury@usdoj.gov [mailt o:Steve .Bradbury@usdoj.gov) Sent: Tuesd ay, December 20, 2005 1:58 PM To: Miers , Harriet; Kavana ugh, Brett M. Subject: RE: Updat ed NSAta lking points Brett: Do you have a se nse whether Gen. Hayden or others within WH will have further comments? -- -Origina l Mess a ge-From: Harriet_Mier.s @who.eo p.gov [mailto:Harriet_Miers @who.eo p.gov) Sent: Tuesd a , December 20, 2005 12:29 PM duplicate 18-1620-B-000161 Document ID: 0.7.18648.5640 duplicate 18-1620-B-000162 Document ID: 01186485640 18-1620-B-000163 Document ID: 01186485640 William_K. Kelley@who.eop.gov From: William_K._ Kelley@who.eo p.gov Sent: Wed nesd ay, December 21, 2005 4:19 PM To : Brett_M._Kavanaugh@who.eo p.gov Ce: Bradbury, Steve; Harriet_Miers @who.eo p.gov Subject: Letter Staffing Attachments: tmp.htm ; NSALetter2.doc Brett--Attached in th e lat es t vers ion of the long letter for sta ffing t o DNI. No de cision ha s bee n made as to whether or when t o se nd th e letter, but DOJ would like to be in a position to do so pretty quickly. VERSIGHT Document ID: 0.7.18648.5647 18-1620-B-000164 Brett- A ttached in the latest version of the long letter for staffing to DNI. No decision has been made as to whether or when to send the letter , but DOJ would like to be in a position to do so pretty quickly. pVERSIGHT Document ID: 0.7.18648.5647-000002 18-1620-B-000165 Bradbury, Steve From: Bradbury, Steve Sent: Wed nesd ay, December 2 1, 2005 6:52 PM To: ' Brett_M._Kavanaugh@who.eo p.gov'; William_ K._ Kelley@who .eo p.g ov Subject: RE: Edit from Crouch ... Got it. Thx ---- Original Message- ---From : Brett_ M._ Kavanau gh@who.eo p.gov [ma ilto:Brett_M._Kavanau gh@who.eo p.gov] Sent: Wed nesd ay, December 2 1, 2005 6:50 PM To: Bradbury, Steve ; William_ K._ Kelley@who.eo p.gov Subject: Edit from Crouch ... One nit from Crouch -- in the long lett er sugges ted removing the word "at" on page 4 betwee n uprivacy11 an d "interest." Hayde n coming in a ny momen t. VERSIGHT Document ID: 0.7.18648.5659 18-1620-B-000166 Bradbury, Steve From: Bra dbury, Ste ve Sent: Wed nesd ay, De ce mber 2 1, 2005 6:55 PM To: ' Brett_ M._ Kavana ugh@who.eo p.gov'; William_ K._ Ke lle y@wh o .eo p.g ov Subject: RE: Ha yde n ... Gre at. Thx ---- Origina l Message- ---From : Brett_ M._ Kavanau gh@who.eo p.gov [ma ilto :Bre tt_ M._ Ka vanau gh@wh o.eo p.go v] Se nt: Wed nesd ay, De ce mber 2 1, 2005 6:53 PM To : Bra dbury, Ste ve ; Brett_ M._ Kava naug h@wh o.eo p .gov; William_ K._ Ke lle y@who .eo p.gov Subje ct: Hayde n ... On th e ta lking poin ts, e nd of point 2, chan ge ' (b) (5) to (b) (5) That' s it. Cle a red fro m here on my e nd. You will want to mak e sure th e pre cise plan for re le a se is app roved by Harrie t. Please se nd me copies of fina ls for my re cords . Thanks. VERSIGHT Document ID: 0.7.18648.5662 18-1620-B-000167 Bradbury, Steve From: Bradbury, Steve Sent: Wed nesd ay, December 21, 2005 7:05 PM To: ' Brett_M._Kavanaugh@who.eo p.gov' Subject: RE: Letter ... Okay. I'll wait t o he ar. Thx! ---- Original Message- ---From: Brett_M._Kavanau gh@who.eo p.gov [mailto:Brett_M._Kavanau gh@who.eo p.gov] Sent: Wed nesd ay, December 21, 2005 7:03 PM To: Bradbury, Steve Subject: Letter ... I left messages for Bill. It see ms that you only have th e final ta lkers back from him. So we need to ta lk to him t o clear up/ a void confusion. VERSIGHT Document ID: 0.7.18648.5665 18-1620-B-000168 William_K. Kelley@who.eop.gov From: William_K._ Kelley@who.eo p.gov Sent: Wed nesd ay, December 21, 2005 7:19 PM To : Bradbury, Steve; Brett_M._Kavanaugh@who.eo p.gov Ce: William_K._ Kelley@who.eo p.gov; Harriet_Miers @who.eo p.gov Subject: Letter Attachments: tmp.htm ; NSALetter2.doc Ms. Miers ha d me replace_ the 4th page . VERSIGHT Document ID: 0.7.18648.5823 (b) (5) .. with •- (b) (5) " in the first line of the se cond para graph on 18-1620-B-000169 Ms. Miers had me replace •- (b) (5) VERSIGHT Document ID: 0.7.18648.5823-000002 !''with •- (b) (5) " in the first line of the second paragraph on the 4th page. 18-1620-B-000170 William_K. Kelley@who.eop.gov From: William_K._ Kelley@who.eo p.gov Sent: Wed nesd ay, December 21, 2005 7:40 PM To : Bradbury, Steve; Brett_M._Kavanaugh@who.eop.gov Ce: Harriet_Miers @who.eo p.gov Subject: Re : Letter I'm fine with all Bre tt's sugges tions . ---- Origina l Mess a ge---From: Kavanaugh, Brett M. To: Kelley, William K.; 'Steve .Bradbury@usdoj.gov' CC: Miers , Harriet Sent: Wed Dec 2119 :38:33 2005 Subject: RE: Letter Two nits : (b) (5) -- I think th ere is a miss ing "but" before "it express ly dist inguished " at t op of page 2 in dis cuss ion of Keith case . -- Also you have JD's nit on pa ge 4 of de let ing the word "at" betwee n "privacy" an d "interes t." Thanks . Good from here . -- --Origina l Mess a ge---From: Kelley, Willia m K. Sent: Wed nesd ay, December 21, 2005 7:26 PM To: 'Steve.Bradbury@usdoj.gov'; Kavanaugh, Brett M. Cc: Miers , Harriet Subject: Re : Letter Unless Brett or Harriet have ed its, then yes . VERSIGHT Document ID: 0.7.18648.5828 18-1620-B-000171 ---Or igina l Message-- --From : Ste ve .Brad bu ry@u sdo j. go v To: Kavan a ugh, Brett M. ; Ke lle y, Willia m K. CC: Miers , Harrie t Se nt : Wed De c 2119 :25:25 2005 Subje ct: RE: Le tt er Tha nk you . So with th ese ed its a re we s igned off? -- -O rigina l Mess a ge-- - From: William _ K._ Ke lle y@wh o .eo p.go v [ma ilto :Willia m_ K._ Ke lle y@wh o.eo p.go v) Se nt : Wed nesda , De ce mb er 21, 2005 7:19 PM duplicate VERSIGHT Document ID: 0.7.18648.5828 18-1620-B-000172 Bradbury, Steve From: Bradbury, Steve Sent: Wednesday , December 21, 2005 8:39 PM To: ' Brett_M._Kavanaugh@who.eop.gov ' Ce: 'Harriet_M iers@ who.eop.gov ' Subject: Re: Great, thx. I have some improvements to the- (b) (5) language myse lf, which I'll go over with Bill. ---Or igina l Message ---From: Brett_M._Kavanaugh@ who.eop.gov To: Bradbury, Steve CC: Harriet_M iers@who.eop.gov Sent: Wed Dec 21 20:32:33 2005 Subject: Re: Ok by me on that change. Bill is calling you on the- (b) (5) point. Thx. ---Or igina l Message ---From: Steve.Bradbury@usdoj.gov To: Kavanaugh, Brett M. CC: Miers , Harriet Sent: Wed Dec 21 20:20:32 2005 Subject: Re: Great. Then still wa iting for Bill's sign off on On second look, I don 't like ' intend to change it back to ' (b) (5) • FYI: (b) (5) (b) (5) ----Or igina l Message---- From: Brett_M._Kavanaugh@who.eop.gov To: Bradbury, Steve CC: Harriet_M iers@ who.eop.gov Sent: Wed Dec 21 20:14:33 2005 Subject: To confirm: Bartlett , Wolff, and Wallace are good with the letter going. VERSIGHT Document ID: 0.7.18648.5845 18-1620-B-000173 Bradbury, Steve From: Bradbury, Steve Sent: Wed nesd ay, December 2 1, 2005 8:45 PM To: ' Brett_M._Kavanaugh@who.eo p.gov' Subject: Re : Will do. Thx ---- Original Message- ---From : Brett_ M._ Kavanau gh@who.eo p.gov To: Brad bury, Steve Sent: Wed Dec 21 20:40:27 2005 Subject: Can you se nd me fina l fina ls aft er you ta lk to bill. Than ks. {And thank s for your pat ience.). VERSIGHT Document ID: 0.7.18648.5846 18-1620-B-000174 Harriet_Miers@w lno.eop.gov From: Sent: Harriet_Miers @who.eo p.gov To: Bradbury, Steve; Brett_M._ Kavanau gh@who .eop.gov Subject: RE: Wed nesd ay, December 2 1, 2005 9 :13 PM Bravo. ---- Original Message-- --From: Steve.Bradbury@usdoj.gov [ma ilto:Steve.Bradbury@usdo j.gov] Sent : Wed nesd ay, December 21, 2005 8:52 PM To: Kavanau gh, Brett M.; Miers , Harriet Subject : Re : (b) (5) -- -Origina l Mess a ge-From: Harriet_ Mier.s @who.eo p.gov To: Bradbury, St eve ; Brett_M._Kavan augh@who.eo p.gov Sent : Wed Dec 21 20:35:06 2005 Subject : RE: (b) (5) we are waiting on his sign off? -- --Origina l Message-- -From: Steve .Bradbury@usdo j .gov [ma ilto :Steve .Bradbury@usdoj.gov) Sent: Wed nesd ay, Decem ber 21, 2005 8 :21 PM duplicate 18-1620-B-000175 Document ID: 0.7.18648.5850 18-1620-B-000176 Document ID: 01186485850 Bradbury, Steve Bradbury, Steve From: Sent: Wed nesd ay, Decem ber 2 1, 2005 9 :50 PM To: ' Brett_ M._ Kavana ugh@who.eo p.gov' Subject: Fina l lett er an d ta lkers Lett er_ NSA Leg al Authority_ Fina l.doc; NSA Leg a l Authority_ Fina l.doc Attachments: Here are the fina ls. We'll mee t with the AG in the morning re se nd ing the lett er. Thx for a ll your help. VERSIGHT Document ID: 0.7.18648.5862 18-1620-B-000177 Bradbury, Steve From: Sent: To: Subject: Attachments: Bradbury, Steve Wednesday, December 21, 2005 10:00 PM 'Brett_M._Kavanaugh@who.eop.gov' Letter: Use this version Letter_NSA Legal Authority_Final.doc Harriet asked me to add "the" before "Congress" at various points, and this final-final version does that. So pls use this one. Sorry! (And thx again.) VERSIGHT Document ID: 0.7.18648.5861 18-1620-B-000178 Bradbury, Steve From: Bradbury, Steve Sent: Thursday, December 22, 2005 11 :41 AM To: 'William_K._Kelley@who.eo p.gov'; Brett_M._Kavanaug h@who.eo p.g ov Subject: RE: One more sugges ted ed it DOJ has not se nt th e TPs out yet an d is still de bat ing how it may use them and with whom. DOJ will likely go with th e le tter first. -- -Origina l Mess a ge-From: William_K._ Kelley@who.eo p.gov {mailto:William_K._ Kelley@who.eo p.gov) Sent: Thursda y, December 22, 2005 11:36 AM To: Bradbury, Steve ; Brett_M._Kavanaugh@who.eo p.gov Subject: RE: One more sugges ted ed it No problem. I ass ume so. ----Or iginal Mess a ge----From: Steve.Bradbury@usdoj.gov [mailto:Steve.Bradbury@usdoj.gov) Sent: Thursd ay, December 22, 2005 11:29 AM To: Kelley, William K.; Kavanaugh, Brett M. Subject: One more .sugges ted ed it (b) (5) I see no problem with Has th e WH se nt th e talkers out yet? Thx VERSIGHT Document ID: 0.7.18648.5871 (b) (5) 18-1620-B-000179 Bradbury, Steve From: Sent: To: Bradbury, Steve Thursday, December 22, 2005 11:45 AM 'William_K._Kelley@who.eop.gov'; 'Brett_M._Kavanaugh@who.eop.gov'; 'bwalton@who.eop.gov'; Scolinos, Tasia; Moschella, William; Sampson, Kyle; Elwood, Courtney Cc: Eisenberg, John PDF of slightly revised NSA talkers Subject: Attachments: NSA Legal Authority_Final_2.pdf This PDF version of the talkers (b) (5) version in any prospective external distribution that may be approved. VERSIGHT Document ID: 0.7.18648.5873 . Pls use this Thx 18-1620-B-000180 Bradbury, Steve From: Sent: Bradbury, Steve Thursday, December 22, 2005 1:09 PM To: 'William_K._Kelley@who.eo p.gov'; 'Harriet_Miers@who.eo p.gov'; ' Brett_M._Kava na ugh@who.eo p.gov'; 'John_M._ Mitnick@who.eo p.gov'; 'John_B._Wieg mann@ns c.eo p.gov'; 'Candida_P._Wolff@who.eo p.gov' Subject: 12.22.05.NSA.letter.pdf Attachments: 12.22.05.NSA.letter.pdf Attached is a PDF of the signed letter from Will Moschella to the leaders of the Intel Committees re the leg al authority for th e NSA act ivities . This letter will be sen t at 2pm today. VERSIGHT Document ID: 0.7.18648.5874 18-1620-B-000181 U.S.S. Department orJustice Justice U. Department of' Office of Legislative Affairs Affairs Office of Legislative Oll1ce ntt rhc rhc A,rli~;mt A" i, 1ant nr 1\nomcy O IIIL/iir ai~, i0 December 22, 2005 December 22,2005 The Honorable Honorable Pat Pat Roberts Roberts The Chairman Chairman Senate Select Select Committcc Committee on Intelligence Senate on Intelligence United States States Senatc Senate United Washington, D.C. Washington, D.C. 20510 205 10 The Honorable John John D. D. Rockefeller, Rockefeller, IV The Honorable IV Vice Chairman Chainnan Vice Senate Select Committee on Intelligence Intelligence Senate Select Committee on United States Senate United States Senate Washington, D.C. 20510 Washington, D.C. 205 10 The Honorable Peter Hoekstra Hoekstra Thc Honorable Peter Chairman Chairman Permanent Sclect Select Committee Permanent Committee on Intelligence Intelligence on U.S. House House of U.S. of Representatives Representatives Washington, 205 15 Washington, D.C. D.C. 205 l5 The Honorable Jane Jane Harman Harman The Honorable Ranking Minority Minority Member Member Ranking Permanent Select Committee Committee Permanent Select on Intelligence Intelligence on U.S. House House of of Representatives Representatives U.S. Washington, 20515 Washington, D.C. D.C. 205 15 Dear Chaim1en Roberts and and Hoekstra, Vice Chairman Chairman Rockefeller, Rockefeller, and and Ranking Member Harman: Hannan : Dear Chairmen Roberts Hoekstra. Vice Ranking Member As you you know, know, in response to to unauthorized unauthorized disclosures disclosures in in the the media, media, the the President President has has As in responsc described certain certain activitics activities of the National National Security Security Agency Agency ("NSA") ("NSA") that that he he has authorized since since described of the has authorized shortly after September 200 I. by the the President, President, the NSA intercepts intercepts certain certain shortly after Septcmber 111, 1,200 1. As As described described by the NSA international communications communications into into and and out out of of the the United United States States of to al al Qaeda Qaeda or or an an international of people people linked linked to affiliated terrorist terrorist organization. organization. The The purpose purpose of of these these intercepts intercepts is establish an an early is to to establish early warning warning affiliated system to to detect detect and another catastrophic terrorist attack attack on the IJnited United States. States. The The system and prevent catastrophic terrorist on the prcvent another President has has made made clear that he will use his constitutional and statutory statutory authorities authorities to to protect protect the the President clear that he will use his constitutional and American people people from from further terrorist attacks, attacks, and and the the NSA NSA activities the President President described described are are Amer~can further terrorist activities the part of of that that effort. Leaders of of the the Congress Congress were were briefed briefed on on these these activities activities more than aa dozen part effort. Leaders more than dozen times. tlnies. The purpose purpose of of this letter is is to an additional brief summary summary of of the the legal legal authority authority The this letter to provide provide an additional brief supporting activities described the President. supporting the the NSA NSA activities described by by the President. As an an initial initial matter, matter, II emphasize emphasize aa few few points. points. The President stated stated that that these these activities activities are are As The President "crucial national security." security." The The President President further further explained that '"the disclosure crucial to to our our national explained that "the unauthorized unauthorized disclosure of risk. Revealing of this this effort effort damages damages our our national national security security and and puts puts our our citizens citizens at at risk. Revealing classified classified information is is illegal alerts our our enemies, and endangers endangers our our country." country ." These critical national national information illegal,, alerts enemies, and These critical security activities activities remain classified. All All United United States States laws policies governing governing the the protection protection security remain classified. laws and and policies to the the and and nondisclosure nondisclosure of of national national security security information. information , including including the the information infonnation relating relating to " VERSIGHT Document ID: 0.7.18648.5874-000001 18-1620-B-000182 activities described described by by the the President, President, remain remain in in full full force force and effect. The The unauthorized unauthorized disclosure activities and effect. disclosure of classified classified information violates federal federal criminal criminal law. law. The Government may may provide provide further further of infomiation violates The Government classified briefings briefings to to the Congre ss on on these these activities activities in in an manner. Any Any such such classified the Congress an appropriate appropriate manner. briefings will will be be conducted conducted in in aa manner that will will not not endanger endanger national national security. briefings manner that security. Under Article Article II of the including in in his his capacity as Commander in Chief, Chief, the the Under 11 of the Constitution, Constitution, including capacity as Commander in President has has the the responsibility responsibility to to protect protect the the Nation Nation from from further further attacks, attacks, and and the the Constitution Constitution President gives him him all all necessary to fulfill fulfill that that duty. See, e.g., e.g., Prize Prize Cases, Cases, 67 67 U.S. U.S. (2 (2 Black) Black) 635, 635, gives necessary authority authority to duty. See, 668 ((11863) (stressing that that if if the the Nation is invaded, invaded , "the "the President President is is not not only only authorized authorized but but hound bound 668 863) (stressing Nation is to resist resist by without waiting waiting for special legislative legislative authority") Campbell vv.. Clinton, to by force force ........ without for any any special authority");; Campbell Clinton, 203 F.3d F.Jd 19, 27 (D.C. (D.C . Cir. Cir. 2000) (Silberman, J., L concurring) concurring) ("[Tlhe ("[T]he Prize Prize Cases Cases .. .. .. stand for the the 19,27 2000) (Silberman, stand for 203 proposition that that the the President independent authority authority to repel aggressive aggressive acts acts by by third third parties parties proposition President has has independent to repel even without without specific specific congressional courts may not review the level of force force even congressional authorization authorization,, and and courts may not review the level of selected.") ; id. at 40 (Tatel, J., concurring). The Congress recognized this constitutional authority selected."); id. at 40 (Tatel, J., concurring). The Congress recognized this constitutional authority in the the preamble preamble to to the the Authorization Authorization for the Use Use of ("AUMF") of of September 18, in for the of Military Military Force Force ("AUMF") September 18, 200 I , 115 115 Stat. Stat. 224 224 (2001) ("[T]he President has authority authority under under the the Constitution Constitution to to take take action action to to 2001, (2001) ("[Tlhe President has deter prevent acts acts of of international international terrorism terrorism against the United United States."), and in in the the War War Powers Powers deter and and prevent against the States."), and see 50 50 U.S.C. U.S.C. 8§ 1541(c) 1541(c) ("The ("The constitutional constitutional powers powers of of the the President President as as Commander Commander in in Resolution , see Resolution, Chief to introduce States Armed Armed Forces into hostilities[] [extend to] national Chief to introduce United United States Forces into hostilities[] ..... . [extend to] aa national emergency by attack attack upon upon the the United United States, States, its its territories territories or possessions, or armed emergency created created by or possessions, or its its armed forces.") forces.").. This constitutional authority authority includes the authority to order warrantless foreign intelligence This constitutional includes the authority to order warrantless foreign intelligence surveillance within within the as all all federal federal appellate appellate courts, courts, including including at least four four circuits, circuits, surveillance the United United States, States, as at least to have have addressed addressed the the issue have concluded. concluded. See, See, e.g., e.g., In In re re Sealed Case, 310 310 F.3d F.3d 717, 742 (FISA (FISA to issue have Sealed Case, 717, 742 Ct. of of Review Review 2002) 2002) ("[A)ll the other other courts courts to to have have decided decided the the issue issue (have] that the President Ct. ("[AIII the [have] held held that the President did have have inherent inherent authority to conduct warrantless searches searches to to obtain foreign intelligence intelligence did authority to conduct warrantless obtain foreign infom1ation . .. .... We take for granted that that the the President President does does have have that that authority. authority ...... ." "). The information. We take for granted ). The Supreme Court has said that warrants are generally required in the context of purer y domestic Supreme Court has said that warrants are generally required in the context of purely donrestic threats, hut but it threats . See See United United States States v. v. United United StatesDistrict States District threats. it expressly expressly distinguished.foreign distinguished,foreign threats. 407 U.S. U.S. 297,308 297,308 (1972). As Justice Justice Byron White recognized recognized almost 40 years years ago, ago, Court, 407 Cotrrt, (1972). As Byron White almost 40 Presidents have have long long exercised exercised the authority to to conduct conduct warrantless surveillance for for national national Presidents the authority warrantless surveillance security purposes, and unnecessary "if "if the the President of the the United United States States or or his his chief security purposes, and aa warrant warrant is is unnecessary President of chief legal the Attorney and legal officer, officer, the Attorney General, General, has has considered considered the the requirements requirements of of national national security security and authorized electronic electronic surveillance surveillance as as reasonable." Katz v. v. United United States, States, 389 389 U.S. U .S. 347, 347, 363-64 363-64 authorized reasonable." Katz (1967) (White, concurring) . (1967) (White, J., J., concurring). The President's direct the NSA to The President's constitutional constitutional authority authority to to direct the NSA to conduct conduct the the activities activities he he described is AUMF. The described is supplemented supplemented by by statutory statutory authority authority under under the the AUMF. The AUMF AUMF authorizes authorizes the the President use all President "to "to use all necessary necessary and and appropriate appropriate force force against against those those nations, nations, organizations, organizations, or or persons authorized, committed, or aided persons he he determines determines planned, planned, authorized, committed, or aided the the terrorist terrorist attacks attacks of of September September 111, 1, 2001, . . . in order to prevent any future acts of international terrorism against the United 2001, ... in order to prevent any future acts of international terrorism against the United States." The AUMF action within Jee also States." 5§ 2(a), 2(a) . The AUMF clearly clearly contemplates contemplates action within the the United United States, States, see also id. id. "render it both necessary necessary and that the pmbl. pmbl. (the (the attacks attacks of of September September 1 11I "render it both and appropriate appropriate that the United United States States exercise its rights to exercise its rights to self-defense self-defense and and to to protect protect United United States States citizens citizens both both at at home home and and abroad"). abroad"). The force against The AUMF AUMF cannot cannot be be read read as as limited limited to to authorizing authorizing the the use use of of force against Afghanistan, Afghanistan, as as some some 2 VERSIGHT Document ID: 0.7.18648.5874-000001 18-1620-B-000183 have argued. Indeed, Indeed, those those who who directly directly "committed" "committed" the the attacks attacks of of September resided in in the the have argued. September 11 11 resided United States States for for months months before before those those attacks. attacks. The The reality reality of the September plot demonstrates demonstrates United of the September I111 plot that the the authorization authorization of of force force covers activities both on foreign foreign soil soil and and in in America. America. that covers activities both on ln Hamdi v. Runv,:feld, 542 U.S. U.S. 507 (2004 ), the the Supreme Court addressed addressed the the scope scope of of the Han~div. R~inzsfeld,542 507 (2004), Supreme Court the In AUMF. At least five Justices Justices concluded that the the AUMF AUMF authorized the President President to to detain detain aa U.S. U.S. AUMF. At least five concluded that authorized the citizen in the the United States because because "detention "detention to prevent aa combatant's combatant's return return to to the the battlefield battlefield is is aa citizen in United States to prevent fundamental incident incident of of waging war" and and is is therefore therefore included included in in the the "necessary and appropriate fundamental waging war" "necessary and appropriate force" authorized by by the the Congress. Congress. ld at 518-19(plurality 518-19 (plurality opinion opinion of of O'Connor, O'Connor, J.); J.); see see id. 587 force" authorized Id.. at id. at at 587 (Thomas, J., J., dissenting). dissenting). These five Justices AUMF "clearly and unmistakably unmistakably These five Justices concluded concluded that that the the AUMF "clearly and (Thomas, authorize[s]" the the "fundaniental "fundamental incident[s] incident(s] of of waging waging war." war." Id. Id. at 518-19 (plurality opinion); see authorize[s]" at 518-19(plurality opinion); see at 587 587 (Thomas, (Thomas, J., dissenting). id. at id. J., dissenting). Communications intelligence intelligence targeted targeted at at the enemy is is aa fundamental incident of of the the use use ooff Con~munications the enemy fundamental incident military throughout history, critical part military force. force. Indeed, Indeed, throughout history, signals signals intelligence intelligence has has formed formed aa critical part of of waging waging war. In the War, each tapped the the telegraph telegraph lines lines of of the the other. other. In In the the World World Wars, Wars, the the war. In the Civil Civil War, each side side tapped United States States intercepted intercepted telegrams into and and out out ofthe of the country The AUMF AUMF cannot cannot be be read read to to United telegrams into country.. The exclude this this long-recognized long-recognized and to conduct conduct communications communications intelligence intelligence exclude and essential essential authority authority to targeted at at the the enemy. enemy. We We cannot cannot fight fight aa war blind . Because Because communications intelligence targeted war blind. communications intelligence activities constitute, constitute, to to use use the the language language o off Hamdi, Hamdi , aa fundamental incident o off waging waging war, war, the the activities fundamental incident AUMF clearlv c/earlv und and unnzistakuhlj unmistakably authorizes such activities directed against against the AUMF authorizes such activities directed the communications communications of of our enemy. Accordingly, the is at at its Sheet & & Tub? Tube our enemy. Accordingly, the President's President's "authority "authority is its maximum." maximum." Youngstown Youngsrown Sheet U.S. 579,635 579, 635 (1952) ( 1952) (Jackson, (Jackson, J., J., concurring); concurring); see Dames & Moore v. v. Regan, Regan, Co. v. Sawyer, Sawyer, 343 Co. v. 343 U.S. see Dames & Moore 453 U.S. U.S. 654, 654, 668 668 (1981); ( 198 I); cl Youngstown, 343 U.S. at 585 585 (noting (noting the the absence absence of of aa statute statute "from 453 cf: Y O U I I ~ S ~343 O WU.S. I I , at "from which [the asserted authority] authority] c[ould] c[ould] be be fairly fairly implied"). implied"). which [the asserted The President's authorization of of targeted electronic surveillance the NSA NSA is is also President's authorization targeted electronic surveillance by by the also The consistent with with the the Foreign Foreign Intelligence SurveiHance Act Act ("FISA''). Section 25 25 11(2)(f) I 1(2)(f) oftitle of title 18 18 consistent Intelligence Surveillance ("FISA"). Section provides, as as relevant relevant here, here, that the procedures procedures ofFISA of FISA and and two chapters of of title title 18 18 "shall "shall be be the the prov~des, that the two chapters exclusive means means by which electronic electronic surveillance.. surveillance ... . may of FISA, in exclusive by which may be be conducted." conducted." Section Section 109 109 ofFISA, in tum, makes it it unlawful unlawful to to conduct electronic surveillance, surveillance, "except as authorized authorized by by statute." statute." 50 50 turn, makes conduct electronic "except as U.S.C. 5§ 1809(a)(l). I 809(a)( I). Importantly, Importantly, section section 109's I 09's exception for electronic electronic surveillance surveillance "authorized "authorized U.S.C. exception for by statute" statute" is broad, especially by is broad, especially considered considered in in the the context context of of surrounding surrounding provisions. provisions. Sec See 18 18 U.S.C. U.S.C. §5 25 l ( l) ("Except ("Except asotherwise as otherwise specifically specifically provided provided in in this chapter any any person person who+a) who-(a) 251l l(1) this chapter intentionally electronic communication[] communication[] ..... . shall shall be punished ...... intentionally intercepts intercepts ..... . any any wire, wire, oral, oral, or or electronic be punished (emphasis added}; id. 4§ 25 2511 (2 )(e) (providing (providing aa defense to liability liability to individuals "conduct[ing] "conduct[ing] ..") " ) (emphasis added); id. 11(2)(e) defense to to individuals electronic as authorized that Act [FISA]") (emphasis (emphasis added). added). electronic surveillance, surveillance, ... . . . as authorized by by thatAct[FISA]") broadly excepting surveillance undertaken By By expressly expressly and and broadly excepting from from its its prohibition prohibition electronic electronic surveillance undertaken "as authorized 109 of FISA permits "procedures" of FISA "as authorized by by statute," statute." section section 109 of FISA permits an an exception exception to to the the "procedures" ofFISA 1(2)(f) where where authorized statute, even referred 25l 1(2)(t) authorized by by another another statute, even if if the the other other referred to to in in 18 18 U.S.C. U.S.C. § 251 authorizing statute does specifically amend section 25 authorizing statute does not not specifically amend section 25 11(2)(f). l l (2)(t). The The AUMF AUMF satisfies satisfies section section for statutory surveillance,just of the I109's 09' s requirement requirement for statutory authorization authorization ofelectronic of electronic surveillance, just as as aa majority majority of the Court in Hanzdi Court in Hamdi concluded concluded that that it it satisfies satisfies the the requirement requirement in in 18 18 U.S.C. lJ.S.C. 9§ 4001(a) 400l(a) that that no no U.S. U.S. citizen be be detained States "except "except pursuant an Act See Hu~ndi, 542 citizen detained by by the the United United States pursuant to to an Act of of Congress." Congress." See Hamdi, 542 a 3 VERSIGHT Document ID: 0.7.18648.5874-000001 18-1620-B-000184 U.S. at at 519 519 (explaining (explaining that that "it "it is is ofno moment that that the the AUMF AUMF does not use use specific specific language of U.S. of no moment does not language of id . at at 587 (Thomas, J., J., dissenting). detention"); detention"); see sec id. 587 (Thomas, dissenting). Some might suggest that that FISA FISA could be read read to to require require that that aa subsequent subsequent statutory statutory Some might suggest could be authorization must must come come in in the the form form of an amendment amendment to to FISA FISA itself. itself. But under established established authorization ofan But under principles of of statutory statutory construction, construction, the the AUMF AUMF and and FISA FISA must must be be constnied constmed in in harmony harmony to to avoid avoid principles any potential conflict between FISA and the President's Article II authority as Commander in any potential conflict between FISA and the President's Article I1 authority as Commander in Chief See. .. Zad~yrias Zad1J>cfasv. v. Davis, Davis, 533 533 U.S. U.S . 678, 678,689 (2001); INSv. INS v. S St.f. Cvr, (vr, 533 533 U.S. U.S. 289, 289,300 Chief. See, e.g e.g., 689 (2001); 300 (200 I). Accordingly. whether the the AUMF AUMF is is aa statute statute that that satisfies satisfies the the (2001). Accordingly. any any ambiguity ambiguity as as to to whether requirements of of FISA FISA and allows electronic electronic surveillance surveillance in in the the conflict conflict with with a1 al Qaeda Qaeda without without requirements and allows complying with with FISA FISA procedures be resolved in favor an interpretation interpretation that that is is consistent consistent complying procedures must must be resolved in favor ooff an with the long-recognized authority. authority. with the President's President's long-recognized The NSA activities described described by by the President are are also also consistent consistent with with the the Fourth Fourth The NSA activities the President Amendment and and the the protection protection of of civil civil liberties. liberties. The The Fourth Fourth Amendment's Amendment's "central "central requirement requirement is is Amendment one of reasonableness." Iflinois v. McArthur, 531 U.S. 326, 330 (200 I) (internal quotation marks one of reasonableness." Illinois v. McArthur, 53 1 U.S. 326,330 (2001) (internal quotation marks omitted). For searches conducted in the the course of ordinary ordinary criminal criminal law law enforcement, enforcement, For searches conducted in course of omitted). reasonableness generally warrant. See See Bd. Bd. o_f Educ. v. v. Earls, Earls, 536 536 U.S. U.S. 822, 822, 828 reasonableness generally requires requires securing securing aa warrant. ofEduc, 828 (2002). Outside Outside the the ordinary criminal law law enforcement enforcement context, context, however, however, the the Supreme Court has, has, (2002). ordinary criminal Supreme Court at with the the warrant, warrant, instead instead adjudging adjudging the the reasonableness reasonableness of of aa search search under under the the at times, times, dispensed dispensed with totality of of the the circumstances. circumstances. See See United United States States v. v. Knights, Knights, 534 534 U.S. U.S. 112, 112, 118 118 (2001). (2001). In In totality particular, the the Supreme Supreme Court Court has has long long recognized recognized that that "special "special needs, needs, beyond beyond the the normal normal need need for for particular, law enforcement," can can justify justify departure from the the usual usual warrant warrant requirement. requirement. Vernonia Vernonia School School Dis!. Dist. law enforcement," departure from 471 v. Acton, Aclon, 55 15 I 5 U.S. 646, 653 653 ((1995); 1995); see also City of Indianapolis v. v. Edmot~d, Edmond, 531 531 U.S. U.S. 32.4132, 4147J v. U.S. 646, see also Ci@ ofIndianapolis 42 (2000) (2000) (striking down checkpoint checkpoint where where "primary purpose was was to detect evidence evidence of ordinary 42 (striking down "primary purpose to detect of ordinary criminal wrongdoing"). criminal wrongdoing"). Foreign intelligence intelligence collection, collection, especially especially in the midst midst of of an an armed armed conflict conflict in in which which the in the the Foreign adversary has already launched catastrophic catastrophic attacks attacks within within the the United United States, States, fits within adversary has already launched fits squarely squarely within the "special exception to to the the warrant warrant requirement. requirement. Foreign Foreign intelligence intelligence collection collection the "special needs" needs" exception undertaken to to prevent prevent further devastating attacks attacks on on our our Nation Nation serves the highest highest government government undertaken further devastating serves the purpose through through means means other other than traditional law law enforcement. enforcement. See re Sealed Sealed Case, Case, 33 10 IO F.3d F.3d at at purpose than traditional See In In re 745; United States States v. Duggan, 743 743 F.2d F.2d 59. 59, 72 72 (2d Cir. 1984)(recognizing 1984) (recognizing that that the Fourth 745; United v. Duggan, (2d Cir. the Fourth Amendment implications of foreign foreign intelligence intelligence surveillance surveillance are are far far different from ordinary ordinary Amendment implications of different from wiretapping. because because they they are are not not principally used for for criminal criminal prosecution). prosecution). wiretapping, principally used Intercepting comn~unications communications into into and out of the United United States of persons persons linked linked to to al al Qaeda Qaeda Intercepting and out of the States of in order to detect and and prevent catastrophic attack attack is is clearly clearly reasonable. reasonable. Reasonableness Reasonableness is in order to detect prevent aa catastrophic is generally determined "balancing the nature of of the the intnision intmsion on on the individual's privacy privacy against against generally determined by by "balancing the nature the individual's the promotion of of legitimate governmental interests." interests." Earls, Earls, 536 U.S. at at 829. 829. There There is is undeniably undeniably the promotion legitimate governmental 536 U.S. an important important and and legitimate legitimate privacy privacy interest interest at at stake with respect respect to to the the activities activities described described by by the the an stake with President. balanced, however, President. That That must must be be balanced, however, against against the the Government's Government's compelling compelling interest interest in in the the security of of the the Nation. Nation, see, see, e.g., e.g., Haig Haig v. v. Agee, Agee, 453 453 U.S. 280, 307 307 (1981) ( 1981) ("It ("It is is obvious and security U.S. 280, obvious and unarguable that that no no governmental interest is is more compelling than than the the security security ooffthe the Nation.") Nation.") governmental interest more con~pelling unarguable (citation and marks omitted). are reviewed (citation and quotation quotation marks omitted). The The fact fact that that the the NSA NSA activities activities are reviewed and and 4 VERSIGHT Document ID: 0.7.18648.5874-000001 18-1620-B-000185 reauthorized approximately every 45 days days to to ensure that they they continue continue to to be be necessary and reauthorized approximately every 45 ensure that necessary and appropriate the reasonableness reasonableness of of these these activities. activities. appropriate further further demonstrates demonstrates the As explained explained above. above, the the President determined that that it it was was necessary necessary following following September September 1 I 1 I As President determined to early warning detection system. system. FISA FISA could could not not have have provided provided the the speed speed and and agility agility create an an early warning detection to create required for for the the early early warning warning detection detection system. In addition, addition, any legislative change, change, other other than than the the required system. In any legislative AUMF, President might might have sought specifically specifically to to create create such an early early warning warning system system AUMF, that that the the President have sought such an would have been public and would have have tipped tipped off our enemies enemies concerning concerning our our intelligence intelligence would have been public and would off our limitations and and capabilities. capabilities. Nevertheless, want to to stress stress that that the the United United States States makes makes full full use use of of limitations Nevertheless, II want FISA to to address the terrorist terrorist threat, threat, and and FISA has proven proven to to be important tool, tool, especially especially in in FISA address the FISA has be aa very very important longer-term investigations. investigations. In In addition, addition, the United States is constantly constantly assessing assessing all all available available legal legal longer-term the United States is options, any developments options, taking taking full full advantage advantage of of any developments in in the the law. law. We hope information is is helpful helpful. We hope this this information Sincerely, Sincerely, v~ f. r1{)5cLlJ_ William E. Moschella William E. Moschella Assistant Attorney Attorney General General Assistant 5 VERSIGHT Document ID: 0.7.18648.5874-000001 18-1620-B-000186 Eisenberg, John Eisenberg, John Thursday, December 22, 2005 5:04 PM Bradbury, Steve; Sampson, Kyle; Elwood, Courtney; Scolinos, Tasia; Moschella, William; 'William_K._Kelley@who.eop.gov'; 'bwalton@who.eop.gov'; 'Brett_M._Kavanaugh@who.eop.gov' Subject: RE: NSA legal authority talking points Attachments: NSA Legal Authority_Final_3.pdf From: Sent: To: There was a small error in the last version: Senate Intelligence Committee should have been House Intelligence Committee. Here's the new version. _____________________________________________ Bradbury, Steve From: Sent: Thursday, December 22, 2005 9:16 AM To: Sampson, Kyle; Elwood, Courtney; Scolinos, Tasia; Moschella, William; 'William_K._Kelley@who.eop.gov'; 'bwalton@who.eop.gov'; 'Brett_M._Kavanaugh@who.eop.gov' Cc: Eisenberg, John Subject: NSA legal authority talking points Here are the final talkers in PDF format. << File: NSA Legal Authority_Final.pdf >> VERSIGHT Document ID: 0.7.18648.5949 18-1620-B-000187 LEGAL AUTHORITY FOR THE RECENTLY DISCLOSED NSA ACTIVITIES 1. In response to unauthorized disclosures in the media, the President has described certain activities of the National Security Agency (“NSA”) that he has authorized since shortly after 9/11. As described by the President, the NSA intercepts certain international communications into and out of the United States of people linked to al Qaeda or an affiliated terrorist organization. The purpose of these intercepts is to establish an early warning system to detect and prevent another catastrophic terrorist attack on the United States. Leaders of Congress from both parties were briefed on these activities more than a dozen times. 2. The President has made clear that he will use his constitutional and statutory authorities to protect the American people from further terrorist attacks. The surveillance conducted here is at the heart of the need to protect the Nation from attacks on our soil, since it involves communications into or out of the United States of persons linked to al Qaeda. 3. Under Article II of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks, and the Constitution gives him all necessary authority to fulfill that duty, a point Congress recognized in the preamble to the Authorization for the Use of Military Force (“AUMF”) of September 18, 2001, 115 Stat. 224 (2001): “[T]he President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” A. This constitutional authority includes the authority to order foreign intelligence surveillance within the U.S. without seeking a warrant, as all federal appellate courts, including at least four circuits, to have addressed the issue have concluded. See, e.g., In re Sealed Case, 310 F.3d 717, 742 (FISA Ct. of Review 2002) (“[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . . . . We take for granted that the President does have that authority . . . .”); United States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984) (collecting authorities). The Supreme Court has said that warrants are generally required in the context of purely domestic threats, but it expressly distinguished foreign threats. See United States v. United States District Court, 407 U.S. 297, 308 (1972) (“Keith”). B. Presidents of both parties have consistently asserted the authority to conduct foreign intelligence surveillance without a warrant. At the time FISA was passed, President Carter’s Attorney General stated explicitly that the President would interpret FISA not to interfere with the President’s constitutional powers and responsibilities. Foreign Intelligence Electronic Surveillance Act of 1978: Hearings on H.R. 5794, H.R. 9745, H.R. 7308, and H.R. 5632 Before the Subcomm. on Legislation of the House Comm. on Intelligence, 95th Cong., 2d Sess. 15 (1978) (testimony of Attorney General Griffin Bell). President Clinton’s Deputy Attorney General, Jamie Gorelick, explained to the House Intelligence Committee that “[t]he Department of Justice believes, and the case law supports, that the President has inherent authority to conduct warrantless physical searches for foreign intelligence purposes, and that the President may, as has been done, delegate this authority to the Attorney General.” (July 14, 1994). AMERICAN PVERSIGHT Document ID: 0.7.18648.5949-000001 18-1620-B-000188 C. As Justice Byron White noted almost 40 years ago, “[w]iretapping to protect the security of the Nation has been authorized by successive Presidents.” Katz v. United States, 389 U.S. 347, 363 (1967) (White, J., concurring). 4. The President’s constitutional authority to authorize the NSA activities is supplemented by statutory authority under the AUMF. A. The AUMF authorizes the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, . . . in order to prevent any future acts of international terrorism against the United States.” § 2(a). The AUMF clearly contemplates action within the U.S., see also id. pmbl. (the attacks of September 11 “render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad”); it is not limited to Afghanistan. Indeed, those who directly “committed” the attacks of September 11 resided in the United States for months before those attacks. The reality of the September 11 plot demonstrates that the authorization of force covers activities both on foreign soil and in America. B. A majority of the Supreme Court has explained that the AUMF “clearly and unmistakably authorize[s]” the “fundamental incident[s] of waging war.” Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) (plurality opinion of O’Connor, J.); see id. at 587 (Thomas, J., dissenting). C. Communications intelligence targeted at the enemy is a fundamental incident of the use of military force; we cannot fight a war blind. Indeed, throughout history, signals intelligence has formed a critical part of waging war. In the Civil War, each side tapped the telegraph lines of the other. In the World Wars, the U.S. intercepted telegrams into and out of the country. The AUMF uses expansive language that plainly encompasses the longrecognized and essential authority to conduct traditional communications intelligence targeted at the enemy. D. Because communications intelligence activities constitute, to use the language of Hamdi, a fundamental incident of waging war, the AUMF clearly and unmistakably authorizes such activities directed against the communications of our enemy. Accordingly, the President’s “authority is at its maximum.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring); see Dames & Moore v. Regan, 453 U.S. 654, 668 (1981). 5. The President’s authorization of targeted electronic surveillance by the NSA is consistent with the Foreign Intelligence Surveillance Act (“FISA”). A. Section 2511(2)(f) of title 18 provides that the procedures of FISA and two chapters of title 18 “shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” Section 109 of FISA, in turn, makes it unlawful to conduct electronic surveillance to obtain the content of such international communications when intercepted on cables in the U.S., “except as authorized by statute.” 50 U.S.C. 1809(a)(1). B. By expressly excepting from its prohibition electronic surveillance undertaken “as authorized by statute,” section 109 of FISA permits an exception to the “procedures” of 2 AMERICAN PVERSIGHT Document ID: 0.7.18648.5949-000001 18-1620-B-000189 FISA referred to in 18 U.S.C. 2511(2)(f) where authorized by another statute. The AUMF satisfies section 109’s requirement for statutory authorization of electronic surveillance, just as a majority of the Court in Hamdi concluded that the AUMF satisfies the requirement in 18 U.S.C. 4001(a) that no U.S. citizen be detained by the United States “except pursuant to an Act of Congress.” See Hamdi, 542 U.S. at 519 (“it is of no moment that the AUMF does not use specific language of detention”); see id. at 587 (Thomas, J., dissenting). C. Even if it were also plausible to read FISA to contemplate that a subsequent statutory authorization must come in the form of an amendment to FISA itself, established principles of statutory construction require interpreting FISA to allow the AUMF to authorize necessary signals intelligence, thereby avoiding an interpretation of FISA that would raise grave constitutional questions. 6. If FISA were applied to prevent or frustrate the President’s ability to create an early warning system to detect and prevent al Qaeda plots against the U.S., that application of FISA would be unconstitutional. The Court of Review that supervises the FISA court recognized as much, “taking for granted that the President does have” the authority “to conduct warrantless searches to obtain foreign intelligence information,” and concluding that “FISA could not encroach on the President’s constitutional power.” In re Sealed Case, 310 F.3d 717 (FISA Ct. of Review 2002). 7. The NSA activities described by the President are fully consistent with the Fourth Amendment and the protection of civil liberties. A. The touchstone of the Fourth Amendment is reasonableness. B. The Supreme Court has long recognized that “special needs, beyond the normal need for law enforcement,” will justify departure from the usual warrant requirement. Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995). Courts have recognized that the Fourth Amendment implications of national security surveillance are far different from ordinary wiretapping, because they are not principally used for criminal prosecution. See, e.g., United States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984). See also Katz v. United States, 389 U.S. 347, 363-64 (White, J., concurring) (warrants not required “if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable”). C. Intercepting calls into and out of the U.S. of persons linked to al Qaeda in order to detect and prevent a catastrophic attack is such a “special need” and is clearly reasonable for Fourth Amendment purposes, particularly in light of the fact that the NSA activities are reviewed and reauthorized approximately every 45 days to ensure that they continue to be necessary and appropriate. 8. FISA could not have provided the speed and agility required for the early warning detection system the President determined was necessary following 9/11. A. In any event, the United States makes use of FISA to address the terrorist threat as appropriate, and FISA has proven to be a very important tool, especially in longer-term investigations. 3 AMERICAN PVERSIGHT Document ID: 0.7.18648.5949-000001 18-1620-B-000190 B. The United States is constantly assessing all available legal options, taking full advantage of any developments in the law. 9. Any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities. 4 AMERICAN PVERSIGHT Document ID: 0.7.18648.5949-000001 18-1620-B-000191 U.S. Department of Justice Office of Legal Counsel Washington, D.C. 20530 August 31, 2018 Gabe Roth Executive Director Fix the Court gabe@fixthecourt.com Re: FOIA Tracking No. FYl 7-207; Fix the Court v. DOJ, D.D.C. No. 18-cv-1620 Dear Mr. Roth: This letter partially responds to your May 8, 2017 Freedom oflnformation Act ("FOIA") request to the Office of Legal Counsel ("OLC") seeking, as narrowed, "[a]ll correspondence sent by the Assistant Attorney General in charge of the Office of Legal Counsel and his or her primary def)uty to Brett M. Kavanaugh and all correspondence sent by Brett M. Kavanaugh to the Assistant Attorney General in charge of the Office of Legal Counsel and his or her primary deputy from January 20, 2001, to May 30, 2006," including carbon copied communications. As you know, the request is also the subject of the above-captioned litigation. Since the last partial response, we have processed 403 pages of responsive records. We have enclosed 195 pages with redactions and withheld the remaining 208 pages in full. Our redactions are based on FOIA Exemption Three, 5 U.S.C . § 552(b)(3), FOIA Exemption Five, 5 U.S.C. § 552(b)(5), or FOIA Exemption Six, 5 U.S.C. § 552(b)(6). The full withholdings are based on Exemption Five. The redactions based on Exemption Three, which exempts material protected from disclosure by statute, withhold material protected from disclosure by 18 U.S.C. §3521(b)(l)(g). For your information, Exemption Five exempts material protected by the attorney-client, deliberative process, and presidential communications privileges, as well as the attorney work product doctrine and other privileges. Exemption Six exempts material the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. We have determined that none of the withheld material is appropriate for discretionary release. We are continuing to process responsive records. For your information, Congress excluded three discrete categories oflaw enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. § 552(c). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist. Your counsel may contact Danielle Wolfson Young of the Civil Division, Federal Programs Branch, at 202-616-2035 or at danielle.young2@usdoj.gov, to discuss any aspect of your request. Additionally, you may contact the Office of Government Information Services ("OGIS") at the National Archives and Records Administration to inquire about the FOIA AV1LHICAN pVERSIGHT mediation services they offer. The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration , Room 2510, 8601 Adelphi Road, College Park, Maryland 20740-6001 , e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769. Although your request is the subject of ongoing litigation, and administrative appeals are not ordinarily acted upon in such situations , I am required by statute and regulation to inform you of your right to file an administrative appeal. You may administratively appeal by writing to the Director, Office oflnformation Policy ("OIP"), United States Department of Justice, Suite 11050, 1425 New York Avenue, NW , Washington , DC 20530-0001, or you may submit an appeal through OIP's FOIAonline portal by creating an account on the following web site: https ://foiaonline.regulations.gov/foia/action/public/home. Your appeal must be postmarked or electronically transmitted within 90 days of the date of my response to your request. If you submit your appeal by mail, both the letter and the envelope should be clearly marked "Freedom of Information Act Appeal." Sincerely, Au//:~ Paul P. Colborn Special Counsel Enclosures cc: Danielle Wolfson Young, Trial Attorney Civil Division, Federal Programs Branch Elizabeth France , Counsel American Oversight AMERICAN PVERSIGHT 2 Colbo rn, Paul P From : Colborn, Paul P Sent: Thursday, January 03, 2002 4:52 PM To : ' Brett_M._Kavanaugh@who.eo p.gov' Ce: Whelan , M Edward Ill Subject: RE: (b) (5) Office of Administrat ion Brett: Any chanc e we can mee t on th is subject th is month before Congress returns t o mak e our lives even busier? -- Paul -- --Origina l Mess a ge---From: Brett_M._Kavanau gh@who.eo p.gov [mailto:Brett_M._Kavanaugh@who.eo p.gov] Sent: Tuesd ay, November 13, 200 1 10:28 PM To: Colborn, Paul P (b) (5) Subject: Re : Office of Administrat ion We have tons of judicial interviews over next 5 days on top of a ton of other stuff. Can it wait until wee k of 26th? (Embedded image moved "Colborn, Paul P" to file : 11/07/200 1 06:00:28 PM pic12679 .pcx) Record Type : Record To: Brett M. Kavanau gh/W HO/ EOP@EOP cc: Subject: (b) (5) ·Office of Administrat ion Brett, did you ge t my phone mess age from awhile ago suggesting that we have a mee ting with OA? I VERSl(jH I Document ID: 0.7.18648.5658 18-1620-C-000001 know you've got a lot going on. So, this is just a gen tle reminder. -- Paul pVERSIGHT Document ID: 0.7.18648.5658 18-1620-C-000002 Collins, Dan From: Collins, Dan Sent: Tuesd ay, January 08, 2002 11:44 AM To: ' Brett_M._Kavanaug h@who.eop .gov' Ce: Thorse n, Carl; Bryan t, Dan; Whelan , M Edward Ill; Martens, Matth ew; Chertoff, Micha el; Horowitz, Micha el-CRM; Colborn, Paul P Subject: Attachments: RE: First draft of letter to Burton letter t o Burton markup.doc Importance: High BrettI t hink you've done a t errific job putting toge ther, in a short period of time, a well-written letter tha t hits the right t one . I just have a few sugges tions, which for ease of refere nce, I've put in t he att ached red-lined vers ion. {Please note : the cha nges will NOT be intelligible if you use "QuickView" t o view it; it must be opened with Microso ft Word .) Some of the sugges ted changes are se lf-explanat ory. For the ones that might not be, my thoughts are as follows : (b) (5) (b) (5) (b) (5) (b) (5) (b) (5) In making my sugges ted ed its, I am relying upon those with more knowledge of the documents th an I (who are cc'ed ) to confirm that the ed its are correct an d acc urate. Please don't hes itat e t,o speak up if there is anyth ing trnat you th ink isn't phrased right, etc. Than ks . --Dan -- -Origina l Mess a ge-VI '-A Document ID: 0.7.18648.5673 I 18-1620-C-000003 From: Brett_M._Kavanaugh@who. eop .gov {mailto:Brett_M._Kavanaugh@who. eop.go v] Sent: Monda y, Janu ary 07, 2002 6:59 PM To: Thorsen , Carl Cc: Thorsen , Carl; Bryant, Dan; Collins, Dan; Whelan , M Edward Ill; Marten s, Matth ew;. Chertoff, Micha el; Horowitz, Michae l-CRM; Colborn, Paul P Subject: First draft of letter to Burton Attached is a fir.s t some what rough draft. I propose that everyone provide me a round of ed its and comments by mid-da y an d that I re-circulat e by mid-aft ernoo n if poss ible, and that we then see where we are. Of course , gett ing it right needs to take preceden ce over this sched ule, so we will just do th e bes t we can in t erms of ge tting it done quickly. Thanks .{See attach ed file : letter to Burton 1 07 02.doc) VERSIGHT Document ID: 0.7.18648.5673 18-1620-C-000004 Brett_M._Kavanaugh@who.eop.gov From: Sent: Brett_M._Kavanaugh@who.eop.gov Tue sd ay, January 08, 2002 1:56 PM To: Ciongoli, Ada m; Thorse n, Carl; Bryant, Dan; Collins , Dan; Whelan, M Edwa rd Ill; Martens , Matth ew; Chertoff, Micha el; Horowitz, Micha el-CRM; Colborn, Pau l P; Thorse n, Carl Subject: Status of dra ft lett er to Burton Thanks for everyone 's comments. We also ha d many comments intern ally here. I will circulate a new dra ft later this afternoon. I think we need to move the ta rge t time for send ing this to tomorrow. Thank s . VERSIGHT Document ID: 0.7.18648.5670 18-1620-C-000005 Whelan , M Edward Ill Whelan, M Edwa rd Ill From: Sent: Tuesd ay, January 08, 2002 1:56 PM To: 'Kavanaugh, Brett ' Subject: FW: First draft of lett er to Burton lett er to Burton 1 07 02 red lined .doc; lett er to Burton 1 07 02.doc Attachments: rese nding -- -O rigina l Mess a ge--- From: Whelan , M Edward Ill Sent: Tuesd ay, January 08, 2002 11:49 AM To: ' Brett_ M._ Kavana ugh@who.eo p.gov'; Thorse n, Carl Cc: Thorse n, Carl; Bryant , Dan; Collins, Dan; Mart ens, Matth ew; Chertoff, Micha el; Horowitz, Micha el-CRM; Colborn, Pau l P Subject: RE: First draft of lett er t o Burton Brett: OLC's comments ar e included in the attac hed vers ions (one with the red lined chan ges hidde n, the (b) (5) other with them revealed ). We have tried to , but invite att en tion to our effo rt. Mos t of th e other chan ges shou ld be se lf-explanat ory, but we wou ld be happy to discuss . We have not yet see n the Burton lett er to Judge Gonzales an d might have additiona l comm ents after we do. Ed -- -Origina l Mess a ge-From: Brett_ M._ Kavanau gh@who. eo p.gov {ma ilto:Brett_M._Kavanau gh@who.eo p.gov] duplicate VERSIGHT Document ID: 0.7.18648.5674 18-1620-C-000006 Brett_M._Kavanaugh@who.eop.gov From: Sent: Brett_M._ Kavanaugh@ who.eop.go v Tue sd ay, January 08, 2002 7:13 PM To: Ciongo li, Ada m; Thorse n, Carl; Bryant, Dan; Collins, Dan; Burton, Faith; Whelan , M Edward Ill; Mart ens, Matth ew; Chertoff, Michael; Horowitz, Michael-CRM; Colborn, Paul P; Thorsen , Carl Subject: Second dra ft of lett er to Burton Attachments: lett er t o Burton 1 08 02.doc Please give me comments by noon tomo rrow. It would be help ful to receive a single se t of DOJ comme nts if poss ible. Thank s . {See attach ed file : lett er to Burton 1 08 02.doc ) VERSIGHT Document ID: 0.7.18648.5676 18-1620-C-000007 Brett_M._ Kavanaugh@who.eop.go v Brett_ M._Kavanau gh@who.eop. gov From: Sent: Wed ne sd ay, January 09, 2002 5:38 PM To: Colborn, Pau l P; Whelan, M Edwa rd Ill Subjec t: FOR FINALQUICK REVIEW Attachments : lett er to Burton 1 09 02 530 pm.doc ca ll me on ce ll phon e or at 456 -2632 with any chan ges before 6:00. thank s. {See attach ed file : lett er to Burton 1 09 02 530 pm.doc) VERSIGHT Document ID: 0.7.18648.5810 18-1620-C-000008 Brett_M._Kavanaugh@who.eop.gov From: Sent: Brett_M._Kavanaugh@who.eop.gov Wednesd ay, January 09, 2002 6:40 PM To: Ciongoli, Ada m; Thorse n, Carl; Bryant, Dan; Collins, Dan; Burton, Faith; Whelan , M Edward Ill; Martens, Matth ew; Chertoff, Michael; Horowitz, Michael-CRM; Colborn, Paul P Subject: Third draft of letter to Burton Attachments: letter to Burton 1 09 02 630 pm.doc (b) (5) Please review carefully. The new estimat ed time for se nding the letter is tomo rrow morning. Apologies for de lay, but it is obvious ly an important letter. {See attached file : letter to Burton 1 09 02 630 pm.doc) VERSIGHT Document ID: 0.7.18648.5811 18-1620-C-000009 Brett_M._Kavanaugh@who.eop.gov From: Sent: Brett_M._ Kavanaugh@ who.eop.go v Thursday , January 10, 2002 9:00 AM To: Ciongoli, Adam; Thorsen, Carl; Bryant, Dan; Collins, Dan; Burton, Faith; Whelan, M Edwa rd Ill; Martens, Matthew; Chertoff, Michael; Horowitz, Michael-CRM; Colborn, Paul P Subject: Fourth draft of lett er to Burton Attachments: lett er t o Burton 1 10 02 845 am.doc (b) (5) please try to call me by 10:00 a.m.) Thanks. {See attach ed file: lett er to Burton 110 02 845 am.doc) VERSIGHT Document ID: 0.7.18648.5815 . Please funne l comments through Ed. (Ed, 18-1620-C-000010 Brett_M._Kavanaugh@who.eop.gov Brett_M._Kavanaugh@who.eop.gov From: Sent: Thursda y, January 10, 2002 9:31 PM To: Colborn, Paul P; Whelan, M Edward Ill; Catherine_S._Anderson @oa. eo p.gov Subject: (b) (5) · Office of Administration Can we meet Frida y at 10 at EEOB156 to discuss this? Or we could do a conference call with call-in numbers (that is, without speaker phones ) to save you all the trip. Let me know. VERSIGHT Document ID: 0.7.18648.5814 18-1620-C-000011 Brett_M._Kavanaugh@who.eop.gov Brett_M._Kavanau gh@who.eo p.gov From: Sent: Wed nesd ay, Jan uary 16, 2002 1:53 PM To: Whelan, M Edward Ill Subject: RE: FEMA matt er Attachments: pic10366 .pcx I would like t o re port back quickly on the initial ques tion; mayb e by end of day t omorro w on that? {Embedded image moved "Whelan , M Edward Ill" to file : 01/ 16/ 2002 0 1:49 :27 PM pic10366.pcx) Record Type : Record To: Brett M. Kavanaug h/W HO/ EOP@EOP cc: Subject: RE: FEMAmatt er Than ks. Any dead lin e? Also, if you haven't done so alread y, p lease send pp. 17 et seq . of th e memo . -- - Origina l Message-- - From : Brett_ M._ Kavanaug h@who.eo p.gov [ma ilto:Brett _M._Kavanau gh@who.eo p.gov) Sent: Wed nesd ay, Ja nuary 16, 2002 1:43 PM To: Whelan, M Edward Ill Subject: RE: FEMA matt er Per a req ues t, we would like OLC to review FEMA proced ures for this kind of matt er an d de termine (b) (5) whether (b) (5) VERSIGHT Document ID: 0.7.18648.5829 18-1620-C-000012 {Embedded image moved "Whelan , M Edward Ill" to file: 01/15/2002 04:06:03 PM pic12361.pcx ) RecordType: Record To: Brett M. Kavanaugh/W HO/EOP@EOP cc: Subject: RE:FEMA matt er I received only th e f irst 16 pages of th e memo. Also, let's discuss , at your conven ien ce, what you wou ld like OLCto do on this. ----Or igina l Message--- From: Whelan , M Edward Ill Sent: Monday, January 14, 2002 3:25 PM To: 'Kavanaugh, Brett' Subject: FEMA matter (b) (5) I believe you sa id that you would be faxing me some info on FEMA's . Just wanted you to know that I haven 't received anyth ing yet. VERSIGHT Document ID: 0.7.18648.5829 18-1620-C-000013 18-1620-C-000014 Document ID: 0.7.18648.5829-000001 Kobach, Kris W From: Sent: To: Cc: Subject: Kobach, Kris W Wednesday, January 16, 2002 3:52 PM Burton, Faith; Colborn, Paul P; Whelan, M Edward III; Martens, Matthew; Horowitz, Michael-CRM; Chertoff, Michael O'Brien, Patrick; Rybicki, James E; 'Brett_M._Kavanaugh@who.eop.gov' RE: Draft questions for hearing I can take the first three questions. Kris -----Original Message----From: Burton, Faith Wednesday, January 16, 2002 3:43 PM Sent: To: Colborn, Paul P; Whelan, M Edward III; Kobach, Kris W; Martens, Matthew; Horowitz, Michael-CRM; Chertoff, Michael Cc: O'Brien, Patrick; Rybicki, James E; 'Brett_M._Kavanaugh@who.eop.gov' Subject: Draft questions for hearing Who can prepare answers? << File: burton.qs.wpd >> VERSIGHT Document ID: 0.7.18648.5831 18-1620-C-000015 Brett_M._Kavanaugh@who.eop.gov Brett_M._Kavanaugh@who.eop.gov From: Sent: Thu rsda y, January 17, 2002 2:48 PM To: Whe lan, M Edward Ill Ce: Colborn , Paul P Subject: RE: Attachments: pic13 174.pcx funny , that wa s the se nt e nce my mother se ized on when she read thi s ... it wa s particu larly n ice to re a d the cata logue of ed ito ria l comment ... the one su bstant ive ly interest ing point wa s that a rch ivists be lieve 12 years is too short a per iod {Embedded image move d "Wh e lan , M Edward Ill" to file : 01/17/2002 02:41:19 PM pic13 174.pcx) Re cord Type : Re cord To : Brett M. Kavanaugh/WHO/ EOP@EOP cc: "Colborn , Pau l P" {Re ce ipt Notificat ion Reques ted ) Subje ct: RE: We ll, I guess th e good ne ws is that it's now in th e pub lic re cord that "Kavanau gh himse lf wa s inte llige nt , sincere , informat ive , an d con struct ive ." ----O rigina l Mess a ge-- -From : Brett_M._Kavanaugh@ who. eo p.g ov !ma ilto :Brett _ M._ Kavanau gh@wh o.eo p.gov] Se nt: Thursda y, January 17, 2002 2:15 PM To: Whe lan, M Edward Ill Cc: Colborn, Pau l P Subject: Vt=K"l\jHT Document ID: 0.7.18648.5835 18-1620-C-000016 http://nat iona ljourna l.com / cgi-bin/i fe tch4 ?ENG+NJMAG+7-njma gtoc + 103654 1-DBSCORE+ 256 + 1+35 + F+7+26 +1 +PD%2f0 1 %2f12%2f2002%2 d%3e0 1%2f12%2f2002 VERSIGHT Document ID: 0.7.18648.5835 18-1620-C-000017 18-1620-C-000018 Document ID: 0.7.18648.5835-000001 Brett_M._Kavanaugh@who.eop.gov Brett_ M._Kavanau gh@who.eo p.gov From: Sent: Friday, Jan uary 18, 2002 8 :42 AM To: Whelan, M Edwa rd Ill Subject: Re : Burton 1/23 hearing UPDATE (b) (5) ----- - Fo rwa rded by Brett M. Kavanaugh/WHO/ EOP on 01/ 18/20 02 08:40 AM----- Alberto R. Gonzales 01/ 17/200 2 08:03:ll.6PM Record Type : Record To: Brett M. Kavanaug h/WHO/ EOP@EOP cc: bee: Subject: Re: Burton 1/23 hearing UPDATE {Document link: Brett M. Kavanaugh) (b) (5) Should we mention this fact in th e lett er to Burton? VERSIGHT Document ID: 0.7.18648.5837 18-1620-C-000019 Colbo rn, Paul P From : Colbo rn, Pa ul P Sent: Friday, January 18, 2002 5: 15 PM To: Burt on, Faith ; Horowitz, Micha e l-CRM; O' Brie n, Pat ; ' Brett _ M._ Kavanau gh@ who. e op.wp d' ; Che rtoff, Micha e l; Mart e ns, Matth e w; Whe lan, M Edwa rd Ill; Kobach, Kris W; Collins, Danie l P Cc: Bryant, Dan; Thorse n, Carl Subject: RE: Summary of Re ce nt Pre cede nt s Attachments : prosdo cs .acc om.wpd (b) (5) . I'll plan to polish th is a s we ge t closer t o whe ne ver th e res ch ed uled he a ring is to be . -- --Origina l Mess a ge ---From: Burt on, Faith Se nt: Friday, January 18, 2002 12:52 PM To: Colborn, Pau l P; Horo witz, Micha e l-CRM; O' Brie n, Pa t; ' Brett_ M._ Kavana u gh@wh o.eo p.wp d'; Che rtoff, Micha e l; Mart e ns, Matth e w; Whe lan , M Edwa rd Ill; Kobach , Kris W; Collins , Dan ie l P Cc: Long, Linda E Subje ct: RE: BURTO N HEARING POSTPONED? Just con firmed with David Kass , th e Burton he ar ing for 1/23 ha s bee n pos tp oned , no ne w dat e ye t. More lat er . FB -- -O rigina l Mess a ge-- - From: Colborn , Pa ul P Se nt: Friday , Ja nuary 18, 2002 12:44 PM To: Horowit z, Michae l-CRM; Burton, Faith; O' Brie n, Pat Subje ct: RE: BURTON HEARING POSTPONED? Can OLA confirm thi s ? -- -O rigina l Mess a ge --- From: Micha e l-CRM Horo witz Se nt : Friday , January 18, 2002 12:42 PM To: Burton , Faith; Colborn, Pau l P; O' Brie n, Pat Subje ct: Fwd : BURTON HEARING POSTPONED? Date : 0 1/ 18/2002 12:46 pm -0500 (Friday ) Vt=K"l~M Document ID: 0.7.18648.5848 I 18-1620-C-000020 From: Michael-CRM Horo wit z To: Burton , Faith; Colborn, Paul; O' Brien , Pat; Whelan, Edwa rd Subject: Fwd: BURTON HEARING POSTPONED? fyi VERSIGHT Document ID: 0.7.18648.5848 18-1620-C-000021 Whelan, M Edward III From: Sent: To: Subject: Whelan, M Edward III Wednesday, January 23, 2002 10:07 AM 'Kavanaugh, Brett' RE: FEMA Brett: If you're comfortable with our answer to the threshold question, we'll move to examine the merits. If you'd like us to do that, please send us a full copy of the Latham & Watkins letter, including the attachments. (As I mentioned before, we received only the first 16 pages via fax.) If you don't want us to do any more on this, let us know. -- Ed -----Original Message----Whelan, M Edward III From: Sent: Friday, January 18, 2002 5:58 PM 'Kavanaugh, Brett' To: Subject: FW: FEMA Per Dan Koffsky's analysis below, the bottom line i (b) (5) . . These conclusions assume that there are not any facts of which we are unaware tha . (b) (5) t -----Original Message----Koffsky, Daniel L From: Sent: Friday, January 18, 2002 5:51 PM To: Whelan, M Edward III Subject: FEMA (b) (5) (b) (5) VERSIGHT Document ID: 0.7.18648.5859 18-1620-C-000022 (b) (5) Two final points: . First (b) (5) t. Second (b) (5) . 18-1620-C-000023 Document ID: 0.7.18648.5859 Brett_M._Kavanaugh@who.eop.gov Brett_M._ Kavanaugh@ who.eop.go v From: Sent: Thursda y, January 24, 2002 3:14 PM To: Whelan, M Edwa rd Ill Subject: FEMA You were miss irng th e las t pa ge . It is bein g FAXed now. Please proceed and assess on th e mer its. Thanks. VERSIGHT Document ID: 0.7.18648.5864 18-1620-C-000024 Comstock, Barbara From: Comstock, Barbara Sent: Thursda y, January 24, 2002 7:12 PM To: ' Brett_M._Kavanaugh@ who.eop.gov '; Thorsen , Carl Cc: Ciongo li, Adam ; Sierra , Bryan; Bryant, Dan; Collins , Dan; Israe lite, David; Herbert , James; Kobach, Kris W; Whe lan , M Edwa rd Ill; Martens, Matthe w; Chertoff, Michae l; Horowitz, Michae l-CRM; O' Brien, Pat; Colborn, Pau l P; 'David_W._ Hobbs@ who.eop.go v' Subject: RE: FW: New Schedu le for Boston FBI-DOJ Hear ings http://www.nat iona lreview.com/c ontributors/ levin012402.shtm l A nice piece from Mark Levin defend ing our pos ition on Burton info et a l. ---Or igina l Message --From: Brett_M._ Kavanaugh@ who.eop.gov [ma ilto:Brett_M._ Kavanaugh@ who.eop.gov ) Sent: Thursda y, Jan.uary 24, 2002 11:39 AM To: Thorsen , Carl Cc: Ciongo li, Adam; Comstock , Barbara; Sierra , Bryan; Bryant, Dan; Collins, Dan; Israe lite, David; Burton, Faith; Herbert , James; Kobac h, Kris W; Whe lan, M Edwa rd Ill; Martens , Matthew ; Chertoff, Michae l; Horowitz, Michae l-CRM; O' Brien , Pat ; Colborn, Pau l P; David_ W._Hobbs@ who.eop.gov Subject: Re: FW: New Schedu le for Boston FBI-DOJ Hear ings (b) (5) {Embedded image moved "Thorsen, Carl" to file: 01/ 24/2002 10:56:55 AM pic21275.pcx ) VERSIGHT Document ID: 0.7.18648.5866 18-1620-C-000025 Record Type: Record To: See the distribut ion list at th e bottom of this message cc: "O' Brien , Pat" <.Pat.O ' Brien@usdo j.gov> {Receipt Notificat ion Requested ) {1PMReturn Requested), "Bryant, Dan" {Rece ipt Notificat ion Requested) {1PM Return Requested ) Subject: FW: New Schedule for Bost on FBI-DOJ Hear ings (b) (5) > > > « ...OLE_Obj... >> > For Immed iate Release: Contact: > Mark Corallo/ Beth Frigola > January 23, 2002 > {202} 225-5074 > > > Committee Announces New Hear ing Schedule for> Continuing Probe of Just ice Department Misconduc t in Boston > > Washington, D.C.-- Chairman Dan Burton {R-IN) toda y announced new da tes >fora ser ies of hear ings in February as part of the Governmen t Reform > Committee 's cont inuing invest iga tion into th e FBl's hand ling of mob> informants in Boston. > > February 6: This hear ing will focus on th e Pres iden t's claim of execu tive > privilege in response to th e Committee 's subpoena for documen ts related to> the invest iga tion of Justice Department misconduct in Boston. > Specifically, the Committee will explore instances in which previous > Administrations have provided similar document s to Congress. > > February 13 and ll.4:The Committee will focus on the role of federa l agents > in the 1971 murder tria l of notor ious mob assass in Joe "The Animal" > Barboza. After the witness protect ion plan w as created for Barboza and> after he was plac ed in th e program , Barboza committed another murder. At> the tim e, California sta te prosecutors were alarmed by the Federa l > Governmen t's support of a wellknown killer. Thirty years later, the > Committee ha s uncovered a wea lth of evidence that the Barboza case was > just the tip of the iceberg in a thirty-year period that may be the > darkes t chapter in Federa l law enforcemen t history. Two former FBIagents > and a former federa l prosecutor who part icipated in the t rial will > t estify, as will severa l California attorneys who were also irnvolved. > > The February 14 hear ing will also focus on whether the federa l governmen t > withheld excu lpatory evidence during prosecut ions in th e 1960s and 1970s - > including dea th pena lty cases. > vt=n31GHT Document ID: 0.7.18648.5866 18-1620-C-000026 > Februa ry 27: The Committ ee will consider the need for leg islat ion to > address se vera l issues that have arisen as a resu lt of the Committ ee 's > invest iga tion. The Committ ee will hear te stimony from lawyers fam iliar> with elemen ts of the Committ ee 's invest igat ion. It will also hear> tes t imony from academ ics who spe cia lize in prosecu torial miscond uct. > > In addition, the Committ ee will ca ll witne sses to tes tify at field > hea rings in Boston in March. The da tes of th ese hea ring have yet to be > schedu led . > > Who: House Government Refor m Committ ee > Dan Burton {R-IN), Chairman > > Where : 2154 Rayburn House Office Building > > When : February 6, 2002 - 10:00 a.m. > February 13, 2002 - 10:00 a.m. > Februa ry 14, 2002 - 10:00 a.m. > February 27, 2002 - 10:00 a.m. > > February 6: "The History of Congress iona l Access to Deliberat ive > Justice Departm en t Docum en ts" > > Witnesses : Dan Bryant , Ass istant Attorney Gener al, > Office of> Legislat ive Affairs, Just ice Departm en t > Morton Rosen berg , Specia list in American Public Law, > > Congress iona l Research Service > Professor Mark Rozell, Cath olic Univers ity of > America > > February 13 & 14: "The California Murder Trial of Joe 'The Anima l' > Barboza : Did the Federa l Government Support the Release of a Dangerous > Mafia Assass in?" > > Witnesses 2/13: Mart ee n Miller, Defe nse Council for Jose ph > Barboza > Ed Cameron , Former Inves tiga tor, Sonoma Coun ty> Dist rict> Attorn ey's Office > Tim Brown, Former Inves tigator , Sonom a County> Sheriff's > Office > Depart ment of Justice Represe ntat ive > > Witnesses 2/14: Dennis Condon, FBI Specia l Age nt {Ret.) > H. Pau l Rico, FBI Specia l Age nt {Ret.) > Honorab le Edward Harrington , Senior Massa chuse tt s > > District Judge , Former Attorney-in-Charge , DOJ > Organ ized Crime Strike Force for New England > > Departm en t of Ju.s tice Representat ive > > > February 27: "Just ice Depa rtmen t Misconduct in Boston: Are > Leg islat ive Solutions Requ ired? " > Witn esses : > Victo r Garo, Esq., Attorn ey for Mr. Salvat i > Austin McGuigan , Former Connecticut Chief State 's > Attorne y> Freder ick M. Lawrence, Boston Univers ity Law> Professor > Stephen Duke, Yale Univers ity law Professor > > - 30 > «01 2302 FBI-DOJ Hear ing Schedu le revised .doc» > VERSIGHT Document ID: 0.7.18648.5866 18-1620-C-000027 Thorsen, Carl From: Thorsen , Carl Sent: Friday, February 01, 2002 2:44 PM To: Colborn, Paul P; Burton, Faith; Bryant, Dan; Whe lan , M Edwar d Ill; Horowitz, Michae l-CRM; Bybee , Jay Ce: ' Brett_ M._Kavanaugh@ who.eop.gov '; Rybicki, James E Subject: RE: FW: Revised draft to Burton on precedents , etc. (b) (5) ·. We need to work this out and ge t it sent. ---Or igina l Message---From: Colborn, Pau l P Sent: Frida y, February 01, 2002 2:08 PM To: Thorsen , Carl; Burton, Faith; Bryant, Dan; Whe lan , M Edward Ill; Horowitz, Michae l-CRM; Bybee, Jay Cc: ' Brett_M._ Kavanau gh@who.eop.gov '; Rybicki, James E Subject: RE: FW: Revised draft to Burton on precedents , etc. That is not correct. As my ema il ea rlier this morning sa id, "OLC cont inues to prefer the formu lat ion th at (b) (5) .." And my ema il later in th e (b) (5) ----Or igina l Message ----From: Thorsen , Carl Sent: Frida y, February 01, 2002 1:32 PM To: Burton, Faith; Colborn , Paul P; Bryant, Dan; Whe lan , M Edwa rd Ill; Horowitz, Michae l-CRM Cc: ' Brett_ M._ Kavanaugh@who.eop.gov '; Rybicki, James E Subject: RE: FW: Revised draft t o Burton on precedents , etc. I'm under the impress ion we have interna l agreement that this draft lett er is read y for Dan 's signature , pend ing WH Counse l approva l. Someone pis sa y so if that 's not correct. ----Or igina l Message---From: Burton, Faith Sent: Friday, February 01, 2002 12:20 PM To: Colborn , Pau l P; Bryant, Dan; Bybee, Jay; Thorsen , Carl; Whe lan , M Edward Ill; Horowit z, Michae l-CRM; Chertoff , Michael Cc: ' Brett_ M._ Kavanaugh@ who.eop.go v'; Rybicki, Jam es E Subject: RE: FW: Revised draft to Burton on precedents , etc. (b) (5) This version includes revised language at th e end of , discuss ion, based upon Kris Kobach's research , and a modest revision in the carry-over para. on p. 5, based upon comments from VERSIGH Document ID: 0.7.18648.5027 18-1620-C-000028 the FBI. I am out of the office this afternoo n; Jim Rybicki in OLAha s th e attachm ents t o this letter . Faith -- -O rigina l Message-- - From: Colborn, Paul P Sent : Friday, February 01, 2002 11:40 AM To: Bryant , Dan; Bybee, Jay; Thorse n, Carl; Burton, Faith; Whelan , M Edward Ill; Horowitz, Michae l-CRM; Chertoff, Michae l Cc: ' Brett_M._Kavanau gh@who.eo p.gov' Subject: FW: FW: Re vised draft to Burton on precede nts, etc. Here are Brett's comments on the draft. proceed ? (b) (5) . Any thoughts on how to ----Or igina l Mess a ge----From: Brett_M._Kavanau gh@who.eo p.gov [mailto:Brett_M._Kavanau gh@who.eo p.gov] Sent: Friday, February 01, 2002 9:54 AM To: Colborn, Paul P Subject: Re: FW: Re vised draft to Burton on precede nts, etc. (b) (5) 1. I would make the balded lan gua ge : • " (b) (5) 3. I cont inue to r,e commend that we de lete the pa ragraph s re 4. In that vein, I am curious that I might de lete those paragraph s as well. (b) (5) (b) (5) . If so, {Embedded image moved "Colborn, Pau l P" to file: 02/0 1/2002 09:41 :36 AM pic24548.pcx) VERSIGHT Document ID: 0.7.18648.5027 18-1620-C-000029 Record Type : Record To: Brett M. Kavanau gh/W HO/ EOP@EOP cc: Subject: FW: Revised draft to Burton on precede nts, etc. --- Origina l Mess a ge--From: Burton, Faith Sent: Thursd ay, January 31, 2002 6:14 PM To: Bryant, Dan; Thorse n, Carl; Colborn, Paul P; Whelan, M Edwa rd Ill; Horowit z, Michae l-CRM; Chertoff, Micha el Subject: Revised draft to Burton on precede nts, etc . (b) (5) . Comments welcome ea rly t omorrow, please . Thank s . Faith VERSIGHT Document ID: 0.7.18648.5027 18-1620-C-000030 Rybicki, James E Rybicki, James E Sunday, February 3, 2002 1:49 PM Thorsen, Carl; Burton, Faith; 'brett_m._kavanaugh@who.eop.gov'; Colborn, Paul P; Whelan, M Edward III; Horowitz, Michael-CRM; Comstock, Barbara; Sierra, Bryan; Bryant, Dan; Chertoff, Michael Subject: 2/1/02 Letter to Chairman Burton Attachments: 2.01.02.Burton.Pres.wpd From: Sent: To: FYI...The attached letter from AAG Bryant was faxed to Chairman Burton (Jim Wilson) and RMM Waxman (Mike Yeager) at 7pm on Friday 2/1/02. I will have signed copies at the Monday prep session. VERSIGHT Document ID: 0.7.18648.5876 18-1620-C-000031 U.S. Department of Justice Office of Legislative Affairs Office of the Assistant Attorney General Washington, D.C. 20530 The Honorable Dan Burton Chairman Committee on Government Reform U.S. House of Representatives Washington, DC 20515 Dear Mr. Chairman: This responds to your letters, dated January 29, 2002 and September 7, 2001, in connection with the Committee hearing that is now scheduled for February 6, 2002. In advance of the hearing, I want to correct the apparent misunderstanding regarding the Administration’s position on deliberative documents generally and deliberative prosecutorial documents in particular. We have no policy that bars congressional access to all deliberative documents. As Judge Gonzales’s letter, dated January 10, 2002, stated: As a general matter, the Executive Branch will treat requests for Department of Justice deliberative documents from closed matters in the same way it treats requests for Executive Branch deliberative documents more generally: through a process of appropriate accommodation and negotiation to preserve the respective constitutional roles of the two Branches. Our particular concern in the current controversy pertains to the narrow and especially sensitive categories of advice memoranda to the Attorney General and deliberative documents making recommendation regarding whether or not to bring criminal charges against individuals. We believe that the public interest in avoiding the politicization of the criminal justice process requires greater protection for those documents which, in turn, influences the accommodation process. This is not an "inflexible position," but rather a statement of a principled interest in ensuring the integrity of prosecutorial decision-making. We remain prepared to work with the Committee to reach an appropriate accommodation regarding the Boston documents and hope that a meeting between Committee and Department representatives can be re-scheduled as soon as possible, and preferably before the February 6 hearing. We believe that substantial progress can be made at such a meeting in resolving the issues relating to the Committee’s interest in these documents. 1 VERSIGHT Document ID: 0.7.18648.5876-000001 18-1620-C-000032 Turning now to the first of the numbered paragraphs of your January 29, 2002 letter: As you know, the Department has often provided Congress with access to deliberative documents of one sort or another. Consequently, it would be impossible to catalogue all of the occasions in which that has occurred. Deliberative documents take many forms and many are not particularly sensitive once a case is closed. In some instances, such materials have not been segregated from other case-related materials that are provided to congressional oversight committees. Consequently, the Department keeps no records of deliberative documents, per se, that are disclosed to congressional committees in conjunction with factual records. Your second and third numbered paragraphs appear to seek information about the Department’s internal deliberations relating to the preparation of our testimony before your Committee and the President’s assertion of executive privilege. In preparing the testimony, I have consulted with Departmental components with expertise in the matters before us and, particularly with appropriate attorneys in those components. As head of the Criminal Division, Assistant Attorney General Michael Chertoff has primary responsibility for Department policies relating to criminal investigations and prosecutorial decision-making. He is best equipped to lead the Department’s participation with you in an accommodation process, which we believe is the appropriate course for resolving the issues relating to these prosecutorial documents. As you recall, we asked the Committee to schedule its last hearing on this matter so that he could testify. While that did not occur, Mr. Chertoff is available next week and, as we have advised Committee staff, the Attorney General has determined that he would like Mr. Chertoff to participate as a witness at this hearing. In response to your question about the factors that led to the recommendation to the President regarding the subpoenaed documents, the Department has concluded that the disclosure outside of the executive branch of these types of core deliberative prosecutorial documents would undermine the integrity of the prosecutorial function. We are concerned that such disclosures would chill the candid exchange of views that is essential to the criminal justice process and make it more difficult for the Attorney General and other high-level decision-makers to obtain full and frank advice from their colleagues and subordinates. In response to your letter dated September 7, 2001, which is referenced in the fourth numbered paragraph of your January 29 letter, we have developed information relating to the numbered items in the letter. We are not in a position to provide comprehensive information about requests for deliberative prosecutorial documents prior to the Clinton Administration because the Department does not maintain records of such precedents in any readily retrievable form, but the following summaries may be helpful. We would, of course, appreciate receiving from you information about any additional precedents that you believe are relevant to your request and especially those that should be considered as we prepare for the February 6 hearing. In 1992, the House Science, Space, and Technology Subcommittee on Investigations and Oversight initiated an inquiry into the Department’s plea agreement with Rockwell International Corporation, which related to criminal violations of environmental laws at the Rocky Flats nuclear weapons facility, outside of Denver. The Subcommittee wanted information about the 2 AMERICAN PVERSIGHT Document ID: 0.7.18648.5876-000001 18-1620-C-000033 Department’s decision not to prosecute individuals and asked to interview the line prosecutors about those decisions. The Department made an exception to the established policy against making such individuals available to Congress with regard to two prosecutors who had answered questions from the media at a press conference on the Rocky Flats settlement. Our position, however, remained that the prosecutors could not disclose information about internal deliberations leading up to the declination decisions. When other issues regarding the Subcommittee staff interviews could not be resolved, the attorneys were subpoenaed to testify before a closed Subcommittee hearing. They provided extensive testimony but declined to answer questions seeking deliberative information. Thereafter, Chairman Wolpe sent a letter to the President demanding that he either assert executive privilege regarding the deliberative process information or direct the Department to permit its witnesses to answer those outstanding hearing questions. When the Department did not agree to this ultimatum, the Chairman advised that he would defer contempt proceedings if the United States Attorney from Denver would testify before the Subcommittee on October 5, 1992. The United States Attorney had a long-standing family commitment on that date, which he felt obligated to fulfill, although he offered to attend on any date after October 6. The Chairman refused to reschedule the hearing, the Department determined not to seek an assertion of executive privilege, and the parties returned to the accommodation process. They finally agreed that in staff interviews, the Department attorney witnesses could disclose information about their deliberations pursuant to an agreement whereby the interviews were transcribed and transcripts could be used publicly only to refresh recollection or impeach the testimony of a witness. The deliberative prosecutorial documents were made available for use at the interviews and while staff could take notes on the documents, they could not disclose the notes publicly and the deliberative documents were returned to the Department at the conclusion of each interview. The limitations on disclosure of the interview transcripts also applied to any transcript references to the deliberative documents. In 1980, a special Senate Judiciary Subcommittee conducted an inquiry about the Department’s investigation and conclusions regarding alleged violations of the Foreign Agents Registration Act by the President’s brother, Billy Carter. It appears that, while the matter was pending, then Attorney General Civiletti discussed Mr. Carter’s failure to register under the Act with the President, which underscored the Committee’s interest in the Department’s process leading up to the declination. We understand that the Subcommittee records indicate that deliberative prosecutorial memoranda, as well as factual investigative records, were disclosed. We have not located any information indicating that the Department expressed concerns about the disclosure of the deliberative prosecutorial documents or otherwise sought an accommodation, let alone any assertion of executive privilege. Our information regarding the General Dynamics matter, which was the subject of the Senate inquiry in 1984 that is referenced in item 5 of your September 7 letter, indicates that deliberative prosecutorial memoranda were provided to Congress. The circumstances and terms of this disclosure are unclear and I do not know whether the Department considered its implications as we have in the instant matter. 3 AMERICAN PVERSIGHT Document ID: 0.7.18648.5876-000001 18-1620-C-000034 In response to the third item of your September 7 request, we have identified two instances that may be helpful. In 1909, President Theodore Roosevelt withheld information of precisely the same nature as that at issue today--information surrounding a decision whether or not to take action against the target of an investigation. The Attorney General had conducted an investigation of the U.S. Steel Corporation’s acquisition of the Tennessee Coal and Iron Company two years earlier, and had declined to institute legal action against U.S. Steel. The Senate requested information regarding the reasons for his decision and any opinions written by the Attorney General or under his authority on the matter. President Roosevelt refused to provide documents regarding the Attorney General’s decision not to take legal action. Roosevelt explained: I have thus given to the Senate all the information in the possession of the executive department which appears to me to be material or relevant, on the subject of the resolution. I feel bound, however, to add that I have instructed the Attorney-General not to respond to that portion of the resolution which calls for a statement of his reasons for nonaction. I have done so because I do not conceive it to be within the authority of the Senate to give directions of this character to the head of an executive department, or to demand from him reasons for his action. Heads of the executive departments are subject to the Constitution, and to the laws passed by the Congress in pursuance of the Constitution, and to the directions of the President of the United States, but to no other direction whatever. In a second matter, beginning in 1957, the House Judiciary Subcommittee on Antitrust conducted an investigation regarding the Department’s enforcement of consent decrees. The Department refused to make available any of its files relating to the American Telephone and Telegraph consent decree, including memoranda and recommendations from Antitrust Division staff. In refusing to disclose the documents, Deputy Attorney General William Rogers explicitly referred to President Eisenhower’s rationale for asserting executive privilege with respect to Defense Department deliberations during the course of the McCarthy investigations in 1954. President Eisenhower had justified this assertion of the privilege on the grounds that "it is essential to efficient and effective administration that employees of the Executive Branch be in a position to be completely candid in advising with each other on official matters," and he had also stressed that it was necessary "to maintain the proper separation of powers between the Executive and Legislative Branches of the Government in accordance with my responsibilities and duties under the Constitution." Deputy Attorney General Rogers also stated that "the essential process of full and flexible exchange might be seriously endangered were staff members hampered by the knowledge they might at some later date be forced to explain before Congress intermediate positions taken." Three Department representatives eventually testified before the Subcommittee, but they reaffirmed the Department's policy of withholding internal deliberative documents, but the documents which were never disclosed in this matter. The foregoing summary is by no means exhaustive, but I believe it illustrates how previous administrations have responded differently to congressional requests for deliberative prosecutorial information. Each Department has surely pursued the course it deemed necessary and appropriate in the particular circumstances it faced, as we have done in the instant matter. 4 AMERICAN PVERSIGHT Document ID: 0.7.18648.5876-000001 18-1620-C-000035 Based upon the circumstances surrounding this subpoena, the President concluded that his assertion of executive privilege was the appropriate course to protect the integrity of the criminal justice process and in invoking the privilege, he requested that the Department "remain willing to work informally with the Committee to provide such information as it can, consistent with these instructions and without violating the constitutional doctrine of separation of powers." It remains our hope that you will agree to meet with us in order to engage in that informal process with regard to the Boston documents. Lastly, in response to the fourth item in your September 7 letter, we have compiled the enclosed records, which we hope will be helpful to you. They include a published 1986 opinion of Office of Legal Counsel (OLC) Assistant Attorney General Charles Cooper, a published 1989 opinion of OLC Assistant Attorney General William Barr, a 1991 letter from Office of Legislative Affairs (OLA) Assistant Attorney General Lee Rawls to Senator Metzenbaum, and a January 27, 2000 letter from OLA Assistant Attorney General Robert Raben to Chairman John Linder of the House Rules Subcommittee on Rules and Organization of the House. These documents have informed the Department’s responses to requests for deliberative prosecutorial documents and our approach to the accommodation process. We are not identifying unpublished confidential advice memoranda from OLC to the Attorney General or other executive branch officials. I hope that this information is helpful to you. Please do not hesitate to contact me if you would like additional assistance about this or any other matter. Sincerely, Daniel J. Bryant Assistant Attorney General Enclosures cc: The Honorable Henry Waxman Ranking Minority Member 5 AMERICAN PVERSIGHT Document ID: 0.7.18648.5876-000001 18-1620-C-000036 Brett_M._Kavanaugh@who.eop.gov Bre tt_ M._ Kavanau gh@who.eo p.gov From: Sent: Tuesda y, February 5, 200 2 12:02 PM To: Burton, Faith Ce: Ciongoli, Adam ; Thorse n, Carl; Bryant, Dan; Collins, Dan ; Whelan, M Edward Ill; Martens, Matth ew; Chertoff, Micha el; Horowitz, Micha el-CRM; Colb orn, Pau l P Subject: Attachments: RE: Dan 's DRAFTOpening Stat emen t burton.statement.wp d; ATTACHMENT.TXT;pic2 4388 .pcx (b) (5) (b) (5) (b) (5) (b) (5) 3. In th e pa ra beg inning "Third," I very much th ink we should de lete th e se nt ence 4. In th e para beg inning "Fourt h," I found th e phrase ' (b) (5) (b) (5) (b) (5) (b) (5) {Embedded ima ge moved "Burt on, Faith" 18-1620-C-000037 Document ID: 0.7.18648.5885 to file : 02/05/2002 10:55:40 AM pic24388.pcx) Record Type : Record To: See th e distribut ion list at the bottom of this mess age cc: "Bryant , Dan" {Receipt Notificat ion Reques t ed ) {1PM Return Req ues t ed ) Subject: RE: Dan's DRAFTOpening Statement This vers ion incorporat es the input we've received an d we intend t o go it as the FINALat noon today; las t call. ---Or igina l Mess a ge--From: Thorse n, Carl Sent: Monda y, February 04, 2002 8:30 PM To: Collins, Dan; Ciongoli, Adam; Colborn, Paul P; Whelan, M Edward Ill; Burton, Faith; Horowitz, Micha el-CRM; Martens, Matth ew; Chertoff, Micha el; 'brett_m._kavanau gh@who.eo p.gov' Cc: Thorse n, Carl; Bryant , Dan Subject: Dan's DRAFTOpening Statement « File : dan. opening.burt on.wpd » Attached is the updat ed draft reflecting input from today's moot. Please kee p the ed its coming. Note : Its very poss ible that t omorrow morning's 10 am moot will be postponed so he can use that time t o prepa re an d that we'll do it in the aft ernoon, around 5:30 pm. Faith or I will let you know first thing in the morning. Carl Thorse n Deputy Ass istant Attorney General Office of Leg islat ive Affairs U.S. Departm ent of Justice q c;,n Po nn c:v lv ::m i~ V Document ID: 0.7.18648.5885 I Av o n1 10 NW 18-1620-C-000038 J,.JV I 'C l II •~ y , va , 1 10 f"'\V'CI ,uic , . ,. •• Washington , D.C. 20530 VERSIGHT Document ID: 0.7.18648.5885 18-1620-C-000039 Message Sent To:_____________________________________________________________ "Thorsen, Carl" (Receipt Notification Requested) (IPM Return Requested) "Collins, Dan" (Receipt Notification Requested) (IPM Return Requested) "Ciongoli, Adam" (Receipt Notification Requested) (IPM Return Requested) "Colborn, Paul P" (Receipt Notification Requested) (IPM Return Requested) "Whelan, M Edward III" (Receipt Notification Requested) (IPM Return Requested) "Horowitz, Michael-CRM" (Receipt Notification Requested) (IPM Return Requested) "Martens, Matthew" (Receipt Notification Requested) (IPM Return Requested) "Chertoff, Michael" (Receipt Notification Requested) (IPM Return Requested) Brett M. Kavanaugh/WHO/EOP@EOP AMERICAN PVERSIGHT Document ID: 0.7.18648.5885-000001 18-1620-C-000040 18-1620-C-000041 Document ID: 0.7.18648.5885-000003 Rybicki, James E Rybicki, James E Tuesday, February 5, 2002 2:23 PM Thorsen, Carl; Horowitz, Michael-CRM; Martens, Matthew; Burton, Faith; Colborn, Paul P; Whelan, M Edward III; 'brett_m._kavanaugh@who.eop.gov' Subject: 2.4.02 Letter from Chairman Burton to the Attorney General Attachments: 2.4.02.Letter.pdf From: Sent: To: VERSIGHT Document ID: 0.7.18648.6153 18-1620-C-000042 DAN BURTON. INotANA. CHAIRMAN BE ft.JAMIN A GILMAN. NEW YORK CONSTANCE A MORELLA. MARYLAND CHRISTOPHER SHAYS, CONNECTICUT ILEANA ROS-LEHTINEN, FLORIDA JOHN M McHUGH, NEW YORK STEPHEN HORN. CALIFORN IA JOHN L MICA , FLORIDA THOMAS M DAVIS, V IRGINIA MARKE SOUOER, INDIANA JOE SCARBOROUGH, FLORIDA STEVEN C . LATOURETTE, OHIO BOB BARR , GEORGIA DAN MILLEA . FLORIDA DOUG OSE, CALIFORNIA RON LEWIS , KENTUCKY JO ANN DAVIS, VIRG IN IA TODD RUSSELL PLATTS , PENNSY LVANIA DAVE WELDON , FLORIDA CHAIS CANNON, UT AJ-1 ADAM H PUTNAM . FLORIDA C.L "BUTCH " OTTER, IOAHO EDWARD L. SCHROCK, VA HENRY A. WAXMAN , CAL IFORNIA , RANKING MINORITY MEMBER ONE HUNDRED SEVENTH CONGRESS C!tongreof sstbe'mlnfteb ~tatcs 1!,ouseof li\epresentatibes COMMITTEE ON GOVERNMENT REFORM 2157 RAYBU RN H OUS E OFFI CE BUILOI NG WA SHINGTON, DC 20515-6143 MAJOl'l!TY (202)225-5074 MINORITY (202) 225-5051 TTY (202) 225-6852 www.house.gov/relorm TOM LANTOS, CALIFORNIA MAJOR R OWENS . NEW YORK EOOLPHUS TOWNS, NEW YORK PAULE. KAN.JORSKI, PENNSYLVANIA PATSYT . MINK , HAWAII CAROLYN 8 . MALONEY , NEW YORK ELEANOR HOLMES NORTON , DISTRICT Of COt.UMBIA ELUAHE CUMMINGS, MARYLAND DENNIS J KUCI N1CH, OHIO ROD R. BLAGOJEVICH, ILLINOIS DANNY K. DAV1S, ILLINOIS JOHN F. TIERNEY , MASSACHUSETTS JIM TURNER , TEXAS THOMASH. At.LEN. MAINE JANICE D SCHAKOWSKY . ILLINOIS W~. LACY CLAY . MlSSOURI BERNARD SANDERS , VERMONT, IND EPE NDENT February 4, 2002 The Honorable John Ashcroft Attorney General United States Department of Justice Washington, D.C. 20530 Dear General Ashcroft: I write in response to the February 1, 2002, letter from Assistant Attorney General Dan Bryant. I appreciate Mr. Br yant's efforts to clarify the Justice Department's position in its dispute with the Committee. The Justice Department now appears to take the position that it does not have any policy barring the production of deliberative Justice Department document s to Congress. Rather , as explained by Mr. Bryant , some cases are particularly sensitive, and require greater protection from Congress. Mr. Bryant further states that " [t]his is not an 'inflexible position. '" While Mr. Bryant's explanation of the Department 's policy sounds very reasonable , there are severa l factors which give me pause. First, it deviates dramatically from the inflexible policy which the Department initially announced to me, and which in fact brought us to the current impasse. Second , the newly-articulated case-by-case analysis appears to be a smokescreen to effect the initial inflexible policy. When I met with the Attorney General, White House Counsel Gonzales, and Justice Department staff in the Summer of 2001, we were informed that the Department would no longer produce deliberative prosecutorial documents to Congress . No exceptions were enunciated, and no "narrow and especially sensitive categories" of documents were identified . When my staff proposed a number of generous compromises with Department staff, the y were rebuffed. Because the Justice Department had articulated an inflexible policy, and had expressed no interest in accommodatin g the Committee's need to review the documents at issue, or even discuss why the Committee wanted to review the documents , it was clear that Congress' ability to conduct effective oversight was threatened. Therefore, I issued a subpoena. Regarding the "case- by-case" analysis, for all of the claims that the Department is engaged in accommodation with the Committee, there is no evidence that this is the case. Despite the claim that the Departm ent will review documents on a case -by-case basis to see if they can be provided to the Committee , there is every reason to believe that the Department, in A I A pVER SIGHT Document ID: 0.7.18648.6153-000001 18-1620-C-000043 The Honorable John Ashcroft February 4, 2002 Page 2 of 4 reality, will withhold all deliberative documents from Congress in the future. Indeed, it is difficult to think of a stronger case for Congressional access to deliberative documents than the Boston case, as there is extensive evidence of Justice Department wrongdoing , and the documents at issue are an average of22 years old. If the Department does not provide Congress with access to the Boston documents, it is clear that the Department will not provide access to deliberative documents in any case. As of today, the Department continues to refuse to allow the Committee to even review those documents. Thus, the case-by-case analysis articulated by the Justice Department on December 13, 2001, appears to be a canard. With respect to the issue presented by the Committee's February 6, 2002, hearing, it appears that the Department's basic position is that Congressional access to deliberative Justice Department documents is so common that it would be impossible to catalogue all of the cases in which it has occurred. This position squarely contradicts statements which have been made by a number of Justice Department and White House staff over the past several months that they are simply trying to reverse bad precedents set during the Clinton Administration, and are attempting to return to the policy of the Reagan Administration. For example, when he met with me on July 18, 2001, Assistant Attorney General Michael Chertoff stated that before 1993, the Justice Department did not provide deliberative materials to Congress. When this assertion was disputed, Mr. Chertoff stated that the articulated position prior to the Clinton Administration was that the Department could not turn over deliberative memos , and conceded only that there "may have been some slippage" from that policy . Now it appears that the Justice Department concedes that Congress has obtained access to deliberative Justice Department records, including prosecution and declination memoranda, well before the Clinton Administration. This is an important concession , as it demonstrates that the Justice Department and White House are attempting to create a new policy which reverses the clear historical record going back to the Teapot Dome scandal. Moreover, the cases cited by Mr. Bryant show that there has not been any policy against providing deliberative documents, and in fact, such documents have been provided to Congress without any objection from the Justice Department. In the Billy Carter case cited by Mr. Bryant, the Justice Department did not make any effort to resist turning over the records. In the General Dynamics case cited by Mr. Bryant , the Reagan Justice Department provided extensive deliberative documents to Congress after a cursory objection. It is difficult to dismiss the General Dynamics case by suggesting, as Mr. Bryant does , that the Reagan Administration may not have "considered its implications as we have in the instant manner." Rather , the Reagan Administration fully understood the implications of providing deliberative documents to Congress , and did so on numerous occasions. Nevertheless, I am concerned by the apparent lack of effort made by the Department in attempting to locate relevant precedent. There are a number of other cases documented in public records where the Department apparently provided deliberative prosecutorial records to Congress. Moreover, as you likely know, in a number of cases, deliberative documents have been shared with Congress , and there is no Committee hearing or report which documents the fact that access was provided . In these cases, the fact of Congressional access is kept confidential , usually at the request of the Justice Department. I hoped that Mr. Bryant would AM pVE r AN SIGHT_ Document ID: 0.7.18648.6153-000001 18-1620-C-000044 The Honorable John Ashcroft February 4, 2002 Page 3 of 4 make an effort to speak to prior Assistant Attorneys General for Legislative Affairs to learn of such cases, and include them in his testimony. While the Department was only able to locate three relevant cases where deliberative documents were provided to Congress, it cited two cases as examples in which executive privilege was claimed over deliberative prosecutorial documents. Neither appears to be very relevant to the issue before the Committee. While President Theodore Roosevelt did refuse to provide documents to the Senate, I hope that the Justice Department is not relying on President Roosevelt's claim as support for the action it is taking now. First, a substantial body of caselaw regarding executive privilege has developed in the last 93 years which limits the President's ability to withhold records from Congress. Second, President Roosevelt's position would deny Congress not only deliberative documents, but also any explanation from the Justice Department for its actions. This rules out any possibility of accommodation. The other case cited by the Department was not a claim of executive privilege at all. Rather , in a 1957 antitrust investigation by the House Judiciary Committee, the Justice Department simply declined to provide the records requested by the Committee. The President did not claim executive privilege. I believe that at the conclusion of the February 6 hearing, it will be clear that there have been a substantial number of cases in which Congress has received access to deliberative prosecutorial Justice Department records, and no modem cases where such records were withheld on the basis of executive privilege. If indeed that is the case, I think it will be clear that the Administration is creating an unprecedented policy to restrict Congressional oversight of the Justice Department. You have also requested that Mr. Chertofftestify together with Mr. Bryant at the February 6 hearing. I am not inclined to grant your request. I believe that Mr. Bryant is the Justice Department official best suited to respond to the Committee's inquiry. The February 6 hearin g will focus narrowly on the question of the history of Congressional access to deliberative Justice Department records. This is an issue which primarily concerns the Office of Legislative Affairs. Indeed , staff from the Office of Legislative Affairs have been discussin g this precise issue with my staff for many months. In previous administrations, staff from Mr. Bryant's office were frequently responsible for providing access to the types of documents currently under dispute . There will, however, be an occasion in the future when I will request that Mr. Chertoff and the Attorney General testify about the Justice Department 's concerns. In his February I, 2002, letter, Mr. Bryant also asked that a meeting between Committee and Justice Department staff take place before the February 6 hearing. I would welcome such a meeting. As you know, my staff and I have met or spoken with Justice Department staff dozens of times trying to resolve this issue. I would be pleased to continue discussions in an effort to A I AN pVER SIGHT Document ID: 0.7.18648.6153-000001 18-1620-C-000045 The Honorable John Ashcroft February 4, 2002 Page 4 of 4 resolve this disagreement. However , my position is unchanged - the Committee must have access to the Boston documents it has subpoenaed. n Sincerely, v~3~ Dan Burton Chairman cc: AM pVE r AN SIGHT_ Document ID: 0.7.18648.6153-000001 Members , Committee on Government Reform 18-1620-C-000046 Brett_M._Kavanaugh@who.eop.gov Bre tt_ M._ Kavanaugh@ who. eo p.gov From: Sent: Tuesda y, Feb ruary 5, 2002 4:09 PM To: Whe lan, M Edward Ill Subject: Re : CA4 Attachments: pic2 936 5.pc x Berenson is han .dling MD an d NC CA4 nom inat ions. {Embedded image moved "Wh e lan , M Edwa rd Ill" to file : 02/05 / 2002 03:52:38 PM pic29365.pcx ) Re co rd Type : Re cord To: Brett M. Kavanau gh/W HO/ EOP@ EOP cc: Subje ct: CA4 Who in you r office is han dling CA4 nom inat ions? {I hav e so meo ne I'd like to re comm end .) VERSIGHT Document ID: 0.7.18648.6158 18-1620-C-000047 18-1620-C-000048 Document ID: 0.7.18648.6158?000001 Whelan, M Edward III Whelan, M Edward III Tuesday, February 05, 2002 5:33 PM 'Kavanaugh, Brett' FW: Moot for Dan tonight From: Sent: To: Subject: FYI. (b) (5) . -----Original Message----From: Whelan, M Edward III Sent: Tuesday, February 05, 2002 5:32 PM To: Burton, Faith Colborn, Paul P Cc: Subject: RE: Moot for Dan tonight Would you please let me know what this meeting is about and f (b) (5) -----Original Message----From: Burton, Faith Sent: Tuesday, February 05, 2002 5:25 PM Thorsen, Carl; Colborn, Paul P; Collins, Dan; Whelan, M Edward III; Horowitz, Michael-CRM; Martens, Matthew; To: Chertoff, Michael; 'brett_m._kavanaugh@who.eop.gov' Bryant, Dan Cc: Subject: RE: Moot for Dan tonight This meeting has been cancelled due to Dan's meeting with Burton, et al at 6 pm. More later. -----Original Message----From: Thorsen, Carl Sent: Tuesday, February 05, 2002 12:11 PM To: Colborn, Paul P; Collins, Dan; Burton, Faith; Whelan, M Edward III; Horowitz, Michael-CRM; Martens, Matthew; Chertoff, Michael; 'brett_m._kavanaugh@who.eop.gov' Cc: Bryant, Dan Subject: Moot for Dan tonight We're planning to reconvene in the OLA Conf Room from 6-8 PM. -----Original Message----Colborn, Paul P From: Sent: Tuesday, February 05, 2002 11:29 AM To: Collins, Dan; Burton, Faith; Thorsen, Carl; Ciongoli, Adam; Whelan, M Edward III; Horowitz, Michael-CRM; Martens, Matthew; Chertoff, Michael; 'brett_m._kavanaugh@who.eop.gov' Cc: Bryant, Dan Subject: RE: Dan's DRAFT Opening Statement The difficulty I have with Dan's suggested change is . Dan, would your concern be reduced if (b) (5) (b) (5) -----Original Message----From: Collins, Dan Sent: Tuesday, February 05, 2002 11:21 AM To: Burton, Faith; Thorsen, Carl; Ciongoli, Adam; Colborn, Paul P; Whelan, M Edward III; Horowitz, Michael-CRM; VERSIGHT Document ID: 0.7.18648.6160 18-1620-C-000049 Cc: Subject: Martens, Matthew; Chertoff, Michael; 'brett_m._kavanaugh@who.eop.gov' Bryant, Dan RE: Dan's DRAFT Opening Statement On page 2, first full paragraph f (b) (5) . . Can we say instead: (b) (5) . . In the conclusion, I'd suggest saying ". (b) (5) (b) (5) " rather than ■ (b) (5) --Dan -----Original Message----Burton, Faith From: Sent: Tuesday, February 05, 2002 10:56 AM duplicate 18-1620-C-000050 Document ID: 0.7.18648.6160 duplicate 18-1620-C-000051 Document ID: 0.7.186486160 Colborn, Paul P From: Sent: To: Cc: Subject: Colborn, Paul P Thursday, February 07, 2002 10:14 AM Burton, Faith; Collins, Dan; 'Brett_M._Kavanaugh@who.eop.gov'; Chertoff, Michael; Horowitz, Michael-CRM; Martens, Matthew; Whelan, M Edward III; Bybee, Jay Thorsen, Carl RE: Draft letter to Chairman Burton re next step I'll await the call. -----Original Message----From: Burton, Faith Thursday, February 07, 2002 10:00 AM Sent: To: Collins, Dan; 'Brett_M._Kavanaugh@who.eop.gov'; Colborn, Paul P; Chertoff, Michael; Horowitz, Michael-CRM; Martens, Matthew; Whelan, M Edward III; Bybee, Jay Cc: Thorsen, Carl Subject: RE: Draft letter to Chairman Burton re next step Can we do a conference call on this at 10:15? Best way to work it on short notice is to have Brett call Carl at 4-3951 and we'll loop in OLC at 4-2048; Collins at 4-6753; and Crim at 3-8579 - is that doable for everyone? -----Original Message----From: Collins, Dan Sent: Wednesday, February 06, 2002 5:39 PM To: Burton, Faith; 'Brett_M._Kavanaugh@who.eop.gov'; Colborn, Paul P; Chertoff, Michael; Horowitz, Michael-CRM; Martens, Matthew; Whelan, M Edward III; Bybee, Jay Cc: Thorsen, Carl Subject: RE: Draft letter to Chairman Burton re next step What abou (b) (5) t ) -----Original Message----From: Burton, Faith Sent: Wednesday, February 06, 2002 5:25 PM To: 'Brett_M._Kavanaugh@who.eop.gov'; Colborn, Paul P; Chertoff, Michael; Horowitz, Michael-CRM; Martens, Matthew; Whelan, M Edward III; Collins, Dan; 'attyadv.opca@fbi.gov' Cc: Thorsen, Carl Subject: Draft letter to Chairman Burton re next step Please give me your comments by 11 a.m. << File: burton.harrington.wpd >> VERSIGHT Document ID: 0.7.18648.5056 18-1620-C-000052 Burton, Faith Burton, Faith Thursday, February 07, 2002 10:20 AM Thorsen, Carl; Collins, Dan; 'Brett_M._Kavanaugh@who.eop.gov'; Colborn, Paul P; Chertoff, Michael; Horowitz, Michael-CRM; Martens, Matthew; Whelan, M Edward III; Bybee, Jay Subject: RE: Draft letter to Chairman Burton re next step Attachments: burton.harrington.wpd From: Sent: To: Here's a revised version reflecting input from John Durham, who note . (b) (5) We'll await Brett's call to begin pulling everyone else in. -----Original Message----From: Thorsen, Carl Sent: Thursday, February 07, 2002 10:04 AM To: Collins, Dan; Burton, Faith; 'Brett_M._Kavanaugh@who.eop.gov'; Colborn, Paul P; Chertoff, Michael; Horowitz, Michael-CRM; Martens, Matthew; Whelan, M Edward III; Bybee, Jay Subject: RE: Draft letter to Chairman Burton re next step me too -----Original Message----From: Collins, Dan Sent: Thursday, February 07, 2002 10:03 AM To: Burton, Faith; 'Brett_M._Kavanaugh@who.eop.gov'; Colborn, Paul P; Chertoff, Michael; Horowitz, Michael-CRM; Martens, Matthew; Whelan, M Edward III; Bybee, Jay Cc: Thorsen, Carl Subject: RE: Draft letter to Chairman Burton re next step Works for me. -----Original Message----From: Burton, Faith Sent: Thursday, February 07, 2002 10:00 AM duplicate VERSIGHT Document ID: 0.7.18648.5064 18-1620-C-000053 duplicate 18-1620-C-000054 Document ID: 01186485064 Colborn, Paul P From: Sent: To: Cc: Subject: Colborn, Paul P Thursday, February 07, 2002 11:09 AM Burton, Faith; Collins, Dan; 'Brett_M._Kavanaugh@who.eop.gov'; Chertoff, Michael; Horowitz, Michael-CRM; Martens, Matthew; Whelan, M Edward III; Bybee, Jay; 'attyadv@opca.fbi.gov'; Durham, John; Herbert, James Thorsen, Carl RE: Draft letter to Chairman Burton re next step What do people think o - l (b) (5) . -----Original Message----From: Burton, Faith Sent: Thursday, February 07, 2002 11:05 AM To: Burton, Faith; Collins, Dan; 'Brett_M._Kavanaugh@who.eop.gov'; Colborn, Paul P; Chertoff, Michael; Horowitz, Michael-CRM; Martens, Matthew; Whelan, M Edward III; Bybee, Jay; 'attyadv@opca.fbi.gov'; Durham, John; Herbert, James Cc: Thorsen, Carl RE: Draft letter to Chairman Burton re next step Subject: Here's the revised version, per our conference call. message. << File: burton.harrington.wpd >> Brett, I'll send it to you in the text of my next -----Original Message----From: Burton, Faith Sent: Thursday, February 07, 2002 10:00 AM duplicate VERSIGHT Document ID: 0.7.18648.5069 18-1620-C-000055 duplicate 18-1620-C-000056 Document ID: 01186485069 Rybicki, James E Rybicki, James E Friday, February 08, 2002 5:06 PM Burton, Faith; 'Brett_M._Kavanaugh@who.eop.gov'; 'attyadv.opca@fbi.gov'; Durham, John; Herbert, James; Chertoff, Michael; Martens, Matthew; Colborn, Paul P; Whelan, M Edward III Cc: Thorsen, Carl 2.8.02 Letter to Chairman Burton Subject: Attachments: 2.8.02.Burton.ltr.wpd From: Sent: To: VERSIGHT Document ID: 0.7.18648.6191 18-1620-C-000057 Thorsen, Carl From: Sent: To: Subject: Thorsen, Carl Tuesday, February 12, 2002 11:12 AM Burton, Faith; 'Brett_M._Kavanaugh@who.eop.gov'; Whelan, M Edward III; Colborn, Paul P; Chertoff, Michael; Horowitz, Michael-CRM; Martens, Matthew; 'attyadv.opca@fbi.gov'; Collins, Dan; Comstock, Barbara RE: Burton Hearings this week In his letter Burton asked that the Department witness "be prepared to provide the Department's response to the testimony and address any issues relating to the Department's continued refusal to provide the Committee access to the subpoenaed Boston documents". - (b) (5) . -----Original Message----Burton, Faith From: Sent: Tuesday, February 12, 2002 10:44 AM 'Brett_M._Kavanaugh@who.eop.gov'; Whelan, M Edward III; Colborn, Paul P; Chertoff, Michael; Horowitz, To: Michael-CRM; Martens, Matthew; 'attyadv.opca@fbi.gov' Cc: Thorsen, Carl Subject: Burton Hearings this week Chairman Burton plans 2 days of hearings this week on the Boston FBI matter and, particularly, the Department's role in the 1971 Cal. prosecution of Barboza for a murder, which he allegedly committed . Harrington, Rico, and Condon testified on his behalf at sentencing to (b) (3) confirm threats against his life by mobster . (b) (3) The Committee's 2/11 letter, which is being circulated now via fax, requests a DOJ witness for each day of the hearings, but our informal information indicates that a single DOJ witness on the 2nd day, who will appear alone on the 2nd panel, will suffice. More later. VERSIGHT Document ID: 0.7.18648.6200 18-1620-C-000058 Colborn, Paul P From: Sent: To: Cc: Subject: Colborn, Paul P Tuesday, February 12, 2002 4:11 PM Burton, Faith; 'attyadv.opca@fbi.gov'; 'Brett_M._Kavanaugh@who.eop.gov'; Whelan, M Edward III; Collins, Dan; Chertoff, Michael; Martens, Matthew Thorsen, Carl; Bybee, Jay RE: Draft letter to Chairman Burton on Harrington memo OLC suggests the following changes: in the first sentence of the third paragraph, make "Executive Privilege" lower case in the next sentence of that paragraph, substitute " for sentence substitute " for (b) (5) (b) (5) t" (b) (5) (b) (5) r " and at the end of the -----Original Message----Burton, Faith From: Sent: Tuesday, February 12, 2002 3:49 PM To: 'attyadv.opca@fbi.gov'; 'Brett_M._Kavanaugh@who.eop.gov'; Whelan, M Edward III; Colborn, Paul P; Collins, Dan; Chertoff, Michael; Martens, Matthew Cc: Thorsen, Carl Subject: Draft letter to Chairman Burton on Harrington memo Please comment asap; we'd like to get this up today. Matt, I'm coming up to see you about docs. burton.212.wpd >> VERSIGHT Document ID: 0.7.18648.6204 << File: 18-1620-C-000059 Colborn, Paul P From: Sent: To: Cc: Subject: Colborn, Paul P Tuesday, February 12, 2002 4:19 PM Thorsen, Carl; Burton, Faith; 'attyadv.opca@fbi.gov'; Whelan, M Edward III; Collins, Dan; Chertoff, Michael; Martens, Matthew 'Brett_M._Kavanaugh@who.eop.gov'; Horowitz, Michael-CRM; Bryant, Dan RE: Draft letter to Chairman Burton on Harrington memo Jay would like to have two prep sessions tomorrow: a meeting at 10:00 to talk about the questions that might be put to him at the hearing and an actual moot at 4:00. We'd like to do these in the OLC conference room (room 3254). Please let me know if you can attend. -----Original Message----From: Thorsen, Carl Tuesday, February 12, 2002 4:10 PM Sent: To: Burton, Faith; 'attyadv.opca@fbi.gov'; Whelan, M Edward III; Colborn, Paul P; Collins, Dan; Chertoff, Michael; Martens, Matthew Cc: 'Brett_M._Kavanaugh@who.eop.gov' Subject: RE: Draft letter to Chairman Burton on Harrington memo A couple updates: 1) 5 PM Conf. call today (DOJ components only) with Chertoff (who's in NYC) to discuss a DOJ recommendatio t. Could one person from each (b) (5) component come down to Dan Bryant's office at 5 pm, or provide a phone number and we'll attempt to patch you in. 2) Jay Bybee has been confirmed as our witness for Thursday's hearing. a schedule for his prep. Ed Whelan will be in touch re. -----Original Message----From: Burton, Faith Tuesday, February 12, 2002 3:49 PM Sent: To: 'attyadv.opca@fbi.gov'; 'Brett_M._Kavanaugh@who.eop.gov'; Whelan, M Edward III; Colborn, Paul P; Collins, Dan; Chertoff, Michael; Martens, Matthew Cc: Thorsen, Carl Subject: Draft letter to Chairman Burton on Harrington memo Please comment asap; we'd like to get this up today. Matt, I'm coming up to see you about docs. burton.212.wpd >> VERSIGHT Document ID: 0.7.18648.6214 << File: 18-1620-C-000060 Brett_M._Kavanaugh@who.eop.gov Brett_M._ Kavanau gh@who.eop.go v From: Sent: Tuesday , February 12, 2002 4:26 PM To: Burton, Faith Ce: Thorsen , Carl; Collins , Dan; Whe lan, M Edward Ill; Martens, Matthew; Chertoff , Michae l; Colborn, Pau l P; 'attyadv.opca@fb i.gov' Subject: Attachments: Re: Draft letter to Chairman Burton on Harrington memo burton.212. wpd; ATTACHMENT.TXT; pic09506.pcx (b) (5) (b) (5) Also , you shou ld I thought the letter - (b) (5) (b) (5) (b) (5) I would de lete Judge Gonzales will need to see this letter ; therefore , after you rece ive comments from all and circulate a re-draft , I will present it to him. (Embedded image moved "Burton, Faith" to file: 02/12/2002 03:49:21 PM pic09506.pcx) Record Type: Record To: See the distribut ion list at the bottom of this message cc: "Thorsen , Carl" (Rece ipt Notificat ion Requested ) {1PM Return Requested) 18-1620-C-000061 Document ID: 0.7.18648.6209 Subject: Draft letter t o Chairman Burton on Harrington memo Please commen t asap ; we'd like to ge t this up toda y. Matt, I'm coming up to see you about docs . VERSIGHT Document ID: 0.7.18648.6209 18-1620-C-000062 Message Sent To:_____________________________________________________________ "Whelan, M Edward III" (Receipt Notification Requested) (IPM Return Requested) "Colborn, Paul P" (Receipt Notification Requested) (IPM Return Requested) "Collins, Dan" (Receipt Notification Requested) (IPM Return Requested) "'attyadv.opca@fbi.gov'" (Receipt Notification Requested) (IPM Return Requested) Brett M. Kavanaugh/WHO/EOP@EOP "Chertoff, Michael" (Receipt Notification Requested) (IPM Return Requested) "Martens, Matthew" (Receipt Notification Requested) (IPM Return Requested) AMERICAN PVERSIGHT Document ID: 0.7.18648.6209-000001 18-1620-C-000063 18-1620-C-000064 Document ID: 0.7.18648.6209-000003 Thorsen, Carl Thorsen, Carl Tuesday, February 12, 2002 4:59 PM Burton, Faith; 'attyadv.opca@fbi.gov'; 'Brett_M._Kavanaugh@who.eop.gov'; Whelan, M Edward III; Colborn, Paul P; Collins, Dan; Chertoff, Michael; Martens, Matthew Subject: RE: Draft letter to Chairman Burton on Harrington memo Attachments: burton.212.wpd From: Sent: To: (Quickly) edited per Brett's and OLC's suggestions. Please review. -----Original Message----From: Burton, Faith Sent: Tuesday, February 12, 2002 3:49 PM duplicate VERSIGHT Document ID: 0.7.18648.6212 18-1620-C-000065 Thorsen, Carl From: Thorsen , Carl Sent: Tuesda y, February 12, 2002 5:48 PM To: ' Brett_M._Kavanaugh@who.eop.gov ' Ce: Collins, Dan; Whelan, M Edwa rd Ill; Mart ens , Matth ew; Colborn, Pau l P; 'attyadv.opca@fb i.gov'; Burton, Faith; Bryant, Dan; Thorsen , Carl Subject: Draft lett er to Chairman Burton on Harrington memo Attachments: ha rrington _mem.wpd Brett, DOJ recomme nds that WHC approve the attached lett er. We've been moving quickly, and our folks will cont inue reviewing it, but all components h ave agreed to thi s lett er in concept. VERSIGHT Document ID: 0.7.18648.6218 18-1620-C-000066 Thorsen, Carl From: Thorsen , Carl Sent: Tuesda y, February 12, 2002 6:43 PM To: ' Brett_M._Kavanaugh@who.eop.gov ' Cc: Subject: Collins, Dan; Whelan, M Edward Ill; Martens , Matth ew; Colborn, Paul P; 'attyadv.opca@fb i.gov'; Burton, Faith; Bryant, Dan; Thorsen , Carl; Rybicki, James E Latest Vers ion of the latest letter to Burton Attachments: ha rrington_mem. wpd Brett, per your latest reques ted ed its. Please let us know in th e morning after Calio has re viewed and approved and we'll ge t it up th ere . DOJ staff - please re view this vers ion and let me know its okay, it reflects WH chan ges. VERSIGHT Document ID: 0.7.18648.6231 18-1620-C-000067 Colborn , Paul P From: Colborn, Paul P Sent: Wednesd ay, February 13, 2002 9 :42 AM To: ' Brett_M._Kavanau gh@who.eop .gov'; Thorsen , Carl Ce: Thorse n, Carl; Bryant, Dan; Collins, Dan; Burton, Faith; Rybicki, Jam es E; Whelan , M Edward Ill; Mart ens , Matthe w; 'attyadv.opca@fbi.gov '; Bybee, Jay Subject: RE: Brett's chan ges are fine with us. We think it is important t o make one more chan ge : in the final (b) (5) paragraph of the letter, su bstitute ' (b) (5) for ' (b) (5) ----Or igina l Message---From: Brett_ M._ Kavanau gh@who.eo p.gov {ma ilto:Brett _M._ Kavanaugh@who.eo p.gov] Sent: Wednesda y, February 13, 2002 9 :17 AM To: Thorsen , Carl Cc: Thorsen , Carl; Bryant, Dan; Collins, Dan; Burton, Faith; Rybicki, James E; Whelan , M Edwa rd Ill; Mart ens , Matth ew; Colborn, Paul P; attya dv.opca@ fbi.go v Subject: another round of sugges ted ed its from here : (b) (5) 1. Change the se cond sen tence in se cond paragraph to the following : ' (b) (5) (b) (5) (b) (5) (b) (5) (b) (5) (b) (5) VERSIGHT Document ID: 0.7.18648.6235 18-1620-C-000068 (b) (5) 4. Delete the se ntence (b) (5) 5. Move the se nt ence 6. In last se ntenc e, chan ge ' 7. VERSIGHT Document ID: 0.7.18648.6235 " (b) (5) (b) (5) " (b) (5) 18-1620-C-000069 Thorsen, Carl From: Thorsen , Carl Sent: Wednesda y, Februa ry 13, 2002 9:53 AM To: ' Brett_M._ Kavanau gh@who.eop.go v' Ce: Bryant, Dan; Collins, Dan; Burton, Faith; Rybicki, James E; Whelan, M Edwa rd Ill; Mart ens, Matthe w; Colborn, Paul P; 'attya dv.opca@fbi. gov' Subject: RE: Attachments: ha rrington _ mem. wpd Edits made , including Colborn's (which I like}. Please review and let me know. ----Or igina l Message ----From: Brett_ M._ Kavanau gh@who.eo p.gov [mailto:Brett _M._ Kavanaugh@wh o.eop.go v] Sent: Wednesd ay, Februa ry 13, 2002 9 :17 AM duplicate VERSIGHT Document ID: 0.7.18648.6238 18-1620-C-000070 18-1620-C-000071 Document ID: 01186486238 Colborn , Paul P From: Colborn, Paul P Sent: Wednesd ay, February 13, 2002 9:57 AM To: Thorsen , Carl; ' Brett_M._ Kavanaugh@who .eo p.gov' Ce: Bryant, Dan; Collins, Dan; Burton, Faith; Rybicki, James E; Whelan, M Edward Ill; Mart ens, Matthe w; 'attyadv.opca@fb i.gov' Subject: RE: -· I think you should su bstitut e ' (b) (5) 11 for 1 (b) (5) 11 : in th e (b) (5) ----Or igina l Message---From: Thorsen , Carl duplicate VERSIGHT Document ID: 0.7.18648.6240 18-1620-C-000072 18-1620-C-000073 Document ID: 01186486240 Burton, Faith From: Burton, Faith Sent: Wednesda y, Februa ry 13, 2002 11:06 AM To: Thorsen , Carl; ' Brett_ M._ Kavanaugh@who.eo p.gov' Ce: Bryant, Dan; Collins, Dan; Rybicki, Jam es E; Whelan, M Edward Ill; Mart ens , Matthe w; Colborn, Paul P; 'attyadv.opca@fbi.gov ' Subject: RE: Brett, please let me know when you have sign-off on this lett er; Carl ha s gone t o the Burton hea ring. Thanks. ----Or igina l Message---From: Thorsen , Carl Sent: Wednesda y, February 13, 2002 9 :53 AM duplicate 18-1620-C-000074 Document ID: 0.7.18648.6241 duplicate 18-1620-C-000075 Document ID: 01186486241 Thorsen, Carl From: Sent: To: Subject: Thorsen, Carl Wednesday, February 13, 2002 2:47 PM Martens, Matthew; Colborn, Paul P; Whelan, M Edward III; Collins, Dan; Bryant, Dan; Burton, Faith; 'brett_m._kavanaugh@who.eop.gov' Burton Review of Harrington Memo Burton's staff just called, they asked that unless we hear back from them (after they've discussed our letter with the Chairman I presume) we bring it up at 4:30 PM today for their review. Unless someone disagrees, I'll plan to do that alone so Faith and Matt can participate in Jay's prep session. Carl Thorsen Deputy Assistant Attorney General Office of Legislative Affairs U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530 VERSIGHT Document ID: 0.7.18648.6244 18-1620-C-000076 Brett_M._Kavanaugh@who.eop.gov From: Sent: Brett_M._Kavanaugh@who.eop.gov Wednesd ay, Februa ry 13, 2002 6:28 PM To: Thorsen , Carl; Bryant, Dan; Collins, Dan; Burton, Faith; Whelan, M Edwa rd Ill; Mart ens, Matth ew; Chertoff , Micha el; Colborn , Pau l P; Brett_M._Kavanaugh@who.eop.gov Cc: Bybee, Jay Subject: Re: Jay Bybee's open ing rema rks for hea ring That is important VERSIGHT Document ID: 0.7.18648.6245 18-1620-C-000077 PPColborn@aol.com From: PPColborn@ao l.com Sent: Wednesd ay, Februa ry 20, 2002 12:36 PM To: Mart ens , Matth ew; Horowitz, Michae l-CRM; Chertoff, Michae l; Whe lan, M Edwa rd Ill; Colborn, Pau l P; Burton, Faith; Collins, Dan; Thorse n, Carl; brett_m ._ kavana ugh@who. eo p.gov Cc: Herbe rt, James; Durham, John; Bybee , Jay; Bryant, Dan Subject: Re: Call this morn ing from Jim Wilson re. documents Attachments: tmp.htm (b) (5) VERSIGHT Document ID: 0.7.18648.6257 18-1620-C-000078 Brett_M._Kavanaugh@who.eop.gov Brett_ M._Kavana ugh@who.eo p.gov From: Sent: Wed nesd ay, February 20, 2002 2:30 PM To: Whelan, M Edward Ill Subject: RE: Call this morning from Jim Wilso n re. documents Attachments: pic28041.pcx I e-ma iled Carl th at I agree with you on this issue . {Embedded image moved "Whelan , M Edward Ill" to file : 02/ 20/ 2002 02:08 :39 PM pic2804 1.pcx) Record Type : Record To: See the distribution list at th e bott om of this message cc: See the distribut ion list at the bott om of this message Subjec t: RE: Call this morning fro m Jim Wilso n re. documents (b) (5) -· ---Or iginal Mess a ge----From : Thorse n, Carl Sent : Wednesd ay, Februa ry 20, 2002 1:36 PM To: Whelan , M Edward Ill; Collins, Dan; Chertoff, Michae l; 'brett_ m._ kavanau gh@who.eo p.gov'; Burton, Faith; Colborn, Pau l P; Horowit z, Michae l-CRM; Mart ens, Matth ew Cc: 'ppcolborn@a ol.com'; Bryant, Dan; Bybee , Jay; Durham , John; Herbert, VERSIGH Document ID: 0.7.18648.6264 18-1620-C-000079 Jame s Subject: RE: Call this morning from Jim Wilson re . documents (b) (5) ---O rigina l Message-- From: Whe lan , M E•dward Ill Sent: Wednes day, February 20, 2002 1:16 PM To: Thorsen, Carl; Collins, Dan; Chertoff, Michae l; 'brett_ m._ kavanaugh@who.eop.gov '; Burton, Faith; Colborn , Pau l P; Horowitz, Michae l-CRM; Marten s, Matthew Cc: 'ppco lborn@ao l.com'; Bryant, Dan; Bybee, Jay; Durham, John; Herbert , Jame s Subject: RE: Call th is morning from Jim Wilson re. documents (b) (5) ---Or igina l Mes sa ge--From: Thorse n, Carl Sent: Wednesday , Feb ruary 20, 2002 12:01 PM To: Collins, Dan; Chertoff, Michae l; 'brett _ m._ kavanaugh@who.eop.gov '; Burton, Faith; Colborn , Pau l P; Whe lan, M Edward Ill; Horowitz, Michae l-CRM; Marten s, Matthew Cc: 'ppco lborn@ao l.com'; Bryant, Dan; Bybee, Jay; Durham, John; Herbert, Jame s Subject: RE: Call this morning from Jim Wilson re. documents (b) (5) ----Or igina l Mess age ---From: Collins, Dan Sent: Wedne sd ay, February 20, 2002 11:49 AM To: Chertoff, Michae l; 'brett _m._ kavanaugh@who.eop.gov '; Burton, Faith; Colborn , Pau l P; Tho rse n, Carl; Whe lan, M Edward Ill; Horowitz, Michae l-CRM; Martens , Matthe w Cc: 'ppco lborn@ao l.com'; Bryant, Dan; Bybee, Jay; Durham , John; Herbert , James Subject: RE: Call this morning from Jim Wilso n re. documents Me too. ----Or igina l Mess age---vlU Document ID: 0.7.18648.6264 I 18-1620-C-000080 From: Michae l Chertoff Sent: Wednesday , February 20 , 2002 11:45 AM To: brett_m._kavanaugh@ who.eop.gov ; Burton , Faith ; Colborn , Pau l P; Thorsen , Carl; Collins , Dan; Whe lan , M Edward Ill; Horo witz, Michae l-CRM; Martens , Matthe w Cc: ppco lborn@ao Lcom; Bryant, Dan ; Bybee , Jay ; Durham , John; Herbert , James Subjec t : RE: Call th is morn ing from Jim Wilson re. documents Date: 02/ 20/ 2002 11:51 am -0500 {Wednesday } From: Michae l Chertoff To: "brett _ m._kavanaugh@ wh o.eop.gov@ inetg w" .WTGATE2.CRMGW; "FBurton". WTGATE2.CRMGW; "PColborn ".WTGATE2.CRMGW; "wCThorsen ".WTGATE2.CRMGW; "wDCollins4 ".WTGATE2.CRMGW; "wMWhe lan ".WTGATE2.CRMGW; Horo witz, Michae l-CRM; Martens , Matthe w CC: "ppco lborn@ao l.com@ inetg w".WTGATE2.CRMGW; "wDBryan t".WTGATE2.CRMGW; "wJBybee ".WTGATE2.CRMGW; "wJDurham ".WTGATE2.CRMGW; "wJHerbert ".WTGATE2.CRMGW Subject: RE: Call this morn ing from Jim Wilson re. doc UJmen ts I agree with Ed >» Whe lan , M Edw ard Ill 02/ 20/ 02 11:39AM »> 1. (b) (5) (b) (5) -----Or igina l Message---From: Burton, Faith Sen t : Wednesda y, February 20, 2002 11:34 AM To: Thorsen , Carl; Colborn , Pau l P; Whe la n, M Edward Ill; Horo wit z, Michae l-CRM; Martens , Matthe w;. Collins , Dan ; ' bre tt_m._ kavanaugh@ who.eop.gov ' Cc: Bryant , Dan; Chertoff , Michae l; Bybee , Ja y; Durham , John ; Herbert , James Subjec t : RE: Call this morn ing from Jim Wilson re. documen ts (b) (5) ----Or igina l Message-From: Thorsen , Carl Sen t : Wednesda y, February 20 , 2002 11:29 AM To: Colborn , Pau l P; Whe lan , M Edward Ill; Horo wit z, Michae l-CRM; Martens , Matt he w; Collins , Dan; 'brett_m. _ ka vanaugh@ who.eop.go v' Cc: Bryant , Dan ; Burton , Faith; Chertoff , Michae l; Bybee , Ja y; Durham , John ; Herbert , James Subjec t : Call this morn ing from Jim W ilson re. documents VERSIGHT Document ID: 0.7.18648.6264 18-1620-C-000081 Jim Wilson left me a message to reques t a copy of the Harrington memo for use in th eir depos ition of Condon. He indicated that they very much want a copy, but expects he knows what our pos ition will be . (b) (5) He's lea ving later t ,oda y for this meet ing, so I presume the depo is tomorro w. Also , he indicated th ey'd like to meet as soon as poss ible thi s wee k, presumab ly to d iscuss their need for the other documen ts. I think its their turn to come down here and Mike C. shou ld prob ab ly do this meet ing with a few others , agreed? When is he ava ilab,le? Carl Thorse n Deputy Ass istant Attorne y Genera l Office of Leg islativ e Affairs U.S. Departmen t of Justice 950 Penns ylvania Avenue , NW Wash ington , D.C. 20530 Message Sent To :____________________________ _ "Thorsen , Carl" (Receipt Notificat ion Requested ) {1PMReturn Requested) "Collins, Dan" (Receipt Notificat ion Requested) ( 1PMReturn Requested) "Burton, Faith" (Receipt Notificati on Requested ) "Colborn, Pau l P" (Receipt Notificati on Requested ) "Chertoff , Micha el" (Receipt Notificati on Requested ) {1PMReturn Requested) Brett M. Kavanaugh/W HO/EOP@EOP "Horowitz, Micha el-CRM" (Receipt Notificat ion Requested ) "Mart ens , Matth ew" (Rece ipt Notificat ion Requested ) VERSIGHT Document ID: 0.7.18648.6264 18-1620-C-000082 Mess age Copied To :__________________________ _ "Bryant , Dan" (Receipt Not ificat ion Reques ted ) "Bybee , Jay" (Receipt Notificat ion Reques ted ) "Durham , John" (Receipt Notificat ion Req ues ted ) "Herbert, James " (Rece ipt Notificat ion Req ues ted ) "'ppcolborn@a ol.com'" (Receipt Notificat ion Req ues ted ) VERSIGHT Document ID: 0.7.18648.6264 18-1620-C-000083 18-1620-C-000084 Document ID: 0.7.18648.6264-000001 Thorsen, Carl From: Sent: To: Cc: Subject: Thorsen, Carl Friday, February 22, 2002 10:27 AM Burton, Faith; Colborn, Paul P; Whelan, M Edward III; Horowitz, Michael-CRM; Martens, Matthew; Collins, Dan; 'brett_m._kavanaugh@who.eop.gov' Bryant, Dan; Chertoff, Michael; Bybee, Jay; Durham, John; Herbert, James RE: Call this morning from Jim Wilson re. documents -- UPDATE I spoke with Burton's staff to discuss their bottom line needs for possession of the Harrington memo during depositions. They feel that the larger issue will take some time to resolve between the brances. In the meantime they propose that we send the redacted Harrington memo up immediately so they can use it in Boston today for the Condon dep, including showing it to him. They will return it to us immediately after the dep and the will agree not to use this as a precedent against us for discussing the larger issue of providing memoranda/um to them. . (b) (5) . -----Original Message----From: Burton, Faith Sent: Wednesday, February 20, 2002 11:34 AM duplicate VERSIGHT Document ID: 0.7.18648.6273 18-1620-C-000085 duplicate 18-1620-C-000086 Document ID: 01186486273 Brett_M._Kavanaugh@who.eop.gov Brett_ M._ Kavanaugh@who.eop.gov From: Sent: Friday , February 22, 2002 12:56 PM To: Collins , Dan Ce: Thorsen , Carl; Bryant, Dan; Burton, Faith; Bybee, Jay; Whe lan , M Edward Ill; Chertoff, Michae l; Horowitz, Michae l-CRM; Colborn , Pau l P Subject: Attachments: RE: Draft letter to Burton on Condon dep accommodat ion for review asap burton.condon. wpd; ATTACHMENT.TXT ; pic29807.pcx I th ink Dan's suggested revision is good. {Embedded image moved "Collins, Dan" to file: 02/22/2002 12:49:52 PM pic29807 .pcx) Record Type: Record To: See the distr ibut ion list at the bottom of this message cc: "Thorse n, Carl" {Receipt Notificat ion Requested ) {1PM Return Requested ), "Bryant, Dan" {Receipt Notification Requested) (1PM Return Requested), "Long, Linda E" {Receipt Notificat ion Requested) {1PM Return Reque sted ) Subject: RE: Draft letter to Burton on Condon dep accommodat ion for review asap (b) (5) --Dan 18-1620-C-000087 Document ID: 0.7.18648.6275 --- Origina l Mess a ge- -From: Burton, Faith Sent: Friday, February 22, 2002 12:2 1 PM To: ' Brett_ M._ Kavana ugh@who.eo p.gov'; 'atty ad v.opca@fb i.gov'; Durham, John ; Herbert, Jam es ; Che rtoff, Micha el; Horowitz, Micha el-CRM; Bybee , Jay; Whelan, M Edward Ill; Colborn , Pau l P; Collins, Dan Cc: Thorse n, Carl; Bryant , Dan; Long, Linda E Subject: Draft lett er to Burton on Condon de p acco mmodat ion for review asap The subject de p bega n at 12 noon today in Boston; our plan is t o ge t this an d the docume nt to them by 1 p.m. Thanks .« File: burton.condon.wpd » VERSIGHT Document ID: 0.7.18648.6275 18-1620-C-000088 Message Sent To:_____________________________________________________________ "Burton, Faith" (Receipt Notification Requested) (IPM Return Requested) "Durham, John" (Receipt Notification Requested) (IPM Return Requested) "Herbert, James" (Receipt Notification Requested) (IPM Return Requested) "Bybee, Jay" (Receipt Notification Requested) (IPM Return Requested) "Whelan, M Edward III" (Receipt Notification Requested) (IPM Return Requested) "Colborn, Paul P" (Receipt Notification Requested) (IPM Return Requested) Brett M. Kavanaugh/WHO/EOP@EOP "'attyadv.opca@fbi.gov'" (Receipt Notification Requested) (IPM Return Requested) "Chertoff, Michael" (Receipt Notification Requested) (IPM Return Requested) "Horowitz, Michael-CRM" (Receipt Notification Requested) (IPM Return Requested) AMERICAN PVERSIGHT Document ID: 0.7.18648.6275-000001 18-1620-C-000089 18-1620-C-000090 Document ID: 0.7.18648.6275-000003 Collins, Dan From: Sent: To: Cc: Subject: Collins, Dan Friday, February 22, 2002 1:08 PM Burton, Faith; Bybee, Jay; Colborn, Paul P; 'Brett_M._Kavanaugh@who.eop.gov'; 'attyadv.opca@fbi.gov'; Durham, John; Herbert, James; Chertoff, Michael; Horowitz, Michael-CRM; Whelan, M Edward III Thorsen, Carl; Bryant, Dan; Long, Linda E RE: Draft letter to Burton on Condon dep accommodation for review asap Faith-This is the old version. --Dan -----Original Message----Burton, Faith From: Sent: Friday, February 22, 2002 1:07 PM Collins, Dan; Bybee, Jay; Colborn, Paul P; 'Brett_M._Kavanaugh@who.eop.gov'; 'attyadv.opca@fbi.gov'; To: Durham, John; Herbert, James; Chertoff, Michael; Horowitz, Michael-CRM; Whelan, M Edward III Cc: Thorsen, Carl; Bryant, Dan; Long, Linda E Subject: RE: Draft letter to Burton on Condon dep accommodation for review asap Here's the revised version, which incorporates changes from Dan and OLC. FB << File: burton.condon.wpd >> -----Original Message----From: Collins, Dan Friday, February 22, 2002 1:05 PM Sent: To: Bybee, Jay; Colborn, Paul P; Burton, Faith; 'Brett_M._Kavanaugh@who.eop.gov'; 'attyadv.opca@fbi.gov'; Durham, John; Herbert, James; Chertoff, Michael; Horowitz, Michael-CRM; Whelan, M Edward III Cc: Thorsen, Carl; Bryant, Dan; Long, Linda E Subject: RE: Draft letter to Burton on Condon dep accommodation for review asap Please note that the version I sent erroneously left in the sentence that Jay and Paul noted should be stricken. -----Original Message----From: Bybee, Jay Friday, February 22, 2002 1:03 PM Sent: To: Colborn, Paul P; Collins, Dan; Burton, Faith; 'Brett_M._Kavanaugh@who.eop.gov'; 'attyadv.opca@fbi.gov'; Durham, John; Herbert, James; Chertoff, Michael; Horowitz, Michael-CRM; Whelan, M Edward III Cc: Thorsen, Carl; Bryant, Dan; Long, Linda E Subject: RE: Draft letter to Burton on Condon dep accommodation for review asap After talking with Dan and Paul, I agree that Dan's changes make sense. (b) (5) . -----Original Message----From: Colborn, Paul P Sent: Friday, February 22, 2002 12:57 PM To: Collins, Dan; Burton, Faith; 'Brett_M._Kavanaugh@who.eop.gov'; 'attyadv.opca@fbi.gov'; Durham, John; Herbert, James; Chertoff, Michael; Horowitz, Michael-CRM; Bybee, Jay; Whelan, M Edward III Cc: Thorsen, Carl; Bryant, Dan; Long, Linda E Subject: RE: Draft letter to Burton on Condon dep accommodation for review asap VERSIGHT Document ID: 0.7.18648.5012 18-1620-C-000091 Dan's changes look good to OLC. -----Original Message----Collins, Dan From: Sent: Friday, February 22, 2002 12:50 PM duplicate 18-1620-C-000092 Document ID: 0.7.18648.5012 Burton, Faith Burton, Faith Friday, February 22, 2002 1:22 PM Collins, Dan; Bybee, Jay; Colborn, Paul P; 'Brett_M._Kavanaugh@who.eop.gov'; 'attyadv.opca@fbi.gov'; Durham, John; Herbert, James; Chertoff, Michael; Horowitz, Michael-CRM; Whelan, M Edward III Cc: Thorsen, Carl; Bryant, Dan; Long, Linda E RE: Draft letter to Burton on Condon dep accommodation for review asap Subject: Attachments: burton.condon.wpd From: Sent: To: Revised version. -----Original Message----Collins, Dan From: Sent: Friday, February 22, 2002 1:05 PM duplicate VERSIGHT Document ID: 0.7.18648.5014 18-1620-C-000093 duplicate 18-1620-C-000094 Document ID: 01186485014 Whelan, M Edward III From: Sent: To: Subject: Whelan, M Edward III Tuesday, February 26, 2002 11:11 AM 'Kavanaugh, Brett' GAO/Cheney In today's Post, Senator (and assistant majority leader) Reid is quoted as saying, "If the meetings were on the level, the vice president and the president shouldn't have anything to worry about." (b) (5) VERSIGHT Document ID: 0.7.18648.6292 18-1620-C-000095 Koffsky, Daniel L From: Koffsky, Daniel L Sent: Tuesda y, February 26, 2002 2:50 PM To : ' Brett_ M._ Kavanaugh@who.eop.gov ' Ce: Whelan , M Edwa rd Ill Subject: RE: Hatch Act Coverage (b) (5) Dan ----Or igina l Message-- -From : Brett_ M._ Kavanau gh@who. eop .gov [ma ilto :Brett_ M._ Kavanau gh@wh o.eop.go v] Sent: Wed nesda y, February 20, 2002 5:30 PM To : Koffsky, Daniel L Cc: Whelan , M Edward Ill Subject: Re: Hatch Act Coverage (b) (5) just curious how • in light of more recen t ca se law de fining these kinds of terms ; if you cou ld tak e a look, that would be grea t. {Embedded image moved "Kofifsky, Daniel L" to file : 02/20/2002 04:08:46 PM pic24325.pcx) Record Type : Record To : Brett M. Kavanaugh/WHO/ EOP@EOP cc: "Whelan , M Edwa rd Ill" {Receipt Notificat ion Requested ) {1PM Return Requested) Subject: Hatch Act Cove rage VERSIGHT Document ID: 0.7.18648.6293 18-1620-C-000096 Brett: Ed forwarded an exchange of e-mails from last fall that may address your ques tion. Please let us know if you'd like to pursue any of these points or any add itiona l ones. -Dan -- -Origina l Message - --From: Whelan , M Edward Ill Sent: Thursda y, October 18, 200 1 3:05 PM To: ' Brett_M._Kavanaugh@ who.eo p.gov' Subject: RE: FW: Hatch Act ques tion (b) (5) I'll follow up with more on-.(b) (5) ----Or igina l Message---From: Brett_M._Kavanaugh@who.eop.gov {mailto:Brett_M._Kavanaugh@who.eo p.gov] Sent: Thursda y, October 18, 200112:32 PM To: Whelan , M Edwa rd Ill Subject: RE:FW: Hatch Act ques tion (b) (5) (b) (5) {Embedded image moved "Whelan, M Edward Ill" to file : 10/ 18/200 112:09 :07 PM pic00416.pcx) Record Type: Record VERSIGHT Document ID: 0.7.18648.6293 18-1620-C-000097 To: Brett M. Kavanau gh/W HO/ EOP@EOP cc: Subject: RE: FW: Hatch Act ques tion (b) (5) (b) (5) (b) (5) (b) (5) (b) (5) (b) (5) ----Or igina l Mess a ge----From: Brett_ M._ Kavanau gh@who.eo p.gov [ma ilto:Brett _M._Kavanau gh@who .eo p.gov] Sent: Wed nesd ay, Oct ober 17, 200 1 3:19 PM To: Whelan, M Edwa rd Ill Subject: Re: FW: Hatch Act ques tion (b) (5) (b) (5) {Embedded ima ge moved "Whelan, M Edwa rd Ill" to file : 10/ 17/200 1 02:59 :36 PM pic08245.pcx) VERSIGHT Document ID: 0.7.18648.6293 18-1620-C-000098 Record Type: Record To: Brett M. Kavanaugh/WHO/EOP duplicate VERSIGHT Document ID: 0.7.18648.6293 18-1620-C-000099 Whelan, M Edward III From: Sent: To: Subject: Whelan, M Edward III Wednesday, February 27, 2002 1:04 PM 'Kavanaugh, Brett' FW: any word back from wh cnsl? FYI -----Original Message----From: Thorsen, Carl Sent: Wednesday, February 27, 2002 12:59 PM To: Colborn, Paul P Whelan, M Edward III Cc: Subject: RE: any word back from wh cnsl? fyi the AP is running with a story that Burton intends to introduce his contempt resolution very soon. . (b) (5) the -----Original Message----From: Colborn, Paul P Sent: Wednesday, February 27, 2002 11:44 AM Thorsen, Carl To: Cc: Whelan, M Edward III RE: any word back from wh cnsl? Subject: Ed & I talked to Brett right after our meeting yesterday. get back to us. We haven't heard back yet. He was going to talk to Tim and the Judge and -----Original Message----From: Thorsen, Carl Sent: Wednesday, February 27, 2002 10:45 AM Colborn, Paul P To: Subject: any word back from wh cnsl? Carl Thorsen Deputy Assistant Attorney General Office of Legislative Affairs U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530 VERSIGHT Document ID: 0.7.18648.6294 18-1620-C-000100 Brett_M._Kavanaugh@who.eop.gov Brett_M._Kavanaugh@who.eop.gov From: Sent: Wednesd ay, Februa ry 27, 2002 1:22 PM To: Colborn, Pau l P Ce: Whelan , M Edwar d Ill Subject: Re: FW: any word back from wh cnsl? Attachments: pic16087.pcx yes, I ta lked to Ed. {Embedded image moved "Colborn, Pau l P" to file : 02/27/2002 01:09:12 PM pic16087.pcx) Record Type: Record To: Brett M. Kavanaugh/WHO/ EOP@EOP cc: "Whe lan , M Edward Ill" {Rece ipt Notificat ion Req ues ted ) {1PM Return Requested) Subject: FW: any wor d back from wh cnsl? Brett, does your office have a rea ction to (b) (5) yet? -----Origina l Message--- From : Thorse n, Carl Sent: Wednesda y, Februa ry 27, 2002 12:59 PM duplicate VERSIGHT Document ID: 0.7.18648.6301 18-1620-C-000101 duplicate 18-1620-C-000102 Document ID: 01186486301 18-1620-C-000103 Document ID: 0.7.18648.6301-000001 Brett_M._Kavanaugh@who.eop.gov Brett_M._Kavanaugh@who.eop.gov From: Sent: Wednesd ay , Fe brua ry 27 , 2002 2:08 PM To: Whe lan, M Edward Ill Subject: AP - Cong ress man Want s FBI Records Attachments: ATTACHMENT.TXT ------ Forwa rded by Brett M. Kavanaugh/WHO/ EOP on 02/27/2002 02:07 PM ----- Anne Womack 02/27/2002 01:37:40 PM Record Type : Record To: Brett M. Kavanau gh/WHO/ EOP@EOP cc: Subject: AP - Congressm an Want s FBI Re co rds ------ Forwa rded by Anne Womack/WHO/ EOP on 02/27/2002 01:37 PM------- Brian Bravo 02/27/2002 0 1:20:54 PM Re cord Type : Record To: cc: Subje ct: AP - Congress man Want s FBI Records Congressm an Want s FBI Re co rds By Me lissa B. Robin so n Asso ciat ed Press Wr it er WASHINGTON VERSIGHT Document ID: 0.7.18648.6302 18-1620-C-000104 ?? The chairman of a House committee said Wednesday he may try to hold President Bush in contempt of Congress for failing to turn over Justice Department records on the FBI's handling of mob informants in Boston in the 1960s. Rep. Dan Burton, R-Ind., chairman of the Government Reform Committee, said during a hearing on the Boston case that his panel's legal staff "is preparing a contempt citation." If Bush and Attorney General John Ashcroft "continue to be recalcitrant, I hope everyone on this committee will support me in getting the House to move this forward," Burton said. It's unclear how long Burton will wait for the documents before deciding to bring the citation before his committee for consideration. If he does, and the committee approves it, he would then have to convince the House's Republican leaders to bring the citation against a GOP president to the full House for a vote. Bush ordered Ashcroft to withhold the documents from the committee in December. He cited executive privilege, a doctrine recognized by the courts that ensures presidents can get candid advice in private without fear it will become public. Bush argued that releasing records could have a chilling effect on prosecutors' willingness to discuss criminal matters. Committee members of both parties have argued the documents should be released to Congress so it can fulfill its responsibility of monitoring the executive branch's activities. With regard to the Boston case, they want to ensure that past excesses of the FBI aren't repeated. Among the facts Burton's committee has learned since it began looking into the issue is the FBI's knowledge that an innocent man was convicted of a murder actually committed by an FBI informant. AMERICAN PVERSIGHT Document ID: 0.7.18648.6302-000001 18-1620-C-000105 Comstock, Barbara From: Comstock , Barbara Sent: Thursda y, February 28, 2002 9:52 AM To: ' Brett_M._ Kavanaugh@ who.eop.gov '; Whelan , M Edwa rd Ill Cc: Thorsen , Carl; Bryant, Dan; Collins, Dan; Burton, Faith; Bybee, Jay; Martens, Matthe w; Chertoff , Michae l; Horowitz, Michae l-CRM; Colborn , Paul P; ' David_W._Hobbs@ who.eop.gov ' Subject: RE: Burton I agree ----Or igina l Message---From: Brett_ M._ Kavanau gh@who.eop.gov [ma ilto:Brett _M._Kavanaugh@who.eop.gov ] Sent: Thursda y, February 28, 2002 9:18 AM To: Whe lan , M Edwa rd Ill Cc: Comstock, Barbara; Thorsen , Carl; Bryant, Dan; Collins, Dan; Burton, Faith; Bybee , Jay; Martens, Matthe w; Chertoff, Michae l; Horowitz, Michae l-CRM; Colborn , Paul P; David_W._ Hobbs@ who.eop.gov Subject: RE: Burton (b) (5) (Embedded image moved "Whe lan, M Edwa rd Ill" to file: 02/28/2002 09:06:01 AM pic14209.pcx ) Record Type: Record To: "Thorsen, Carl" {Receipt Notificat ion Requested ) {1PM Return Requested), Brett M. Kavanaugh/W HO/EOP@EOP VERSIGHT Document ID: 0.7.18648.6316 18-1620-C-000106 cc: See the distribut ion list at the bottom ot this message Subject: RE: Burton FYI: Paul (who will not be in until mid-morning} passes along a fact ual correction : The mee ting refer red to in the 4th pa ragra ph was on Feb. 25, not Feb. 26. -- -Original Mess a ge-From: Colborn, Paul P Sent: Wed nesd ay, February 27, 2002 6:21 PM To: Thorse n, Carl; 'llrett_M._Kavanau gh@who.eo p.gov' Cc: Bryant, Dan; Collins, Dan; Whelan, M Edward Ill; Martens, Matth ew; Horowitz, Micha el-CRM; Bybee, Jay; 'brett_m._kavan au gh@who.eo p.gov'; 'dhobbs@who.eop.gov'; Comstock, Barbara; Burton, Faith; Chertoff, Michae l Subject: RE: Burton Brett ha s asked me to draft and circulate for everyone's cons idera tion the att ached letter to Burton. (b) (5) The letter reflects -- --Origina l Message ---From: Thorsen , Carl Sent: Wed nesd ay, February 27, 2002 4:09 PM To: ' Brett_M._ Kavanaugh@who.eo p.gov' Cc: Bryant, Dan; Collins, Dan ; Whelan, M Edward Ill; Martens, Matth ew; Horowitz, Micha el-CRM; Colborn, Paul P; Bybee, Jay; 'brett_m._kavanau gh@who.eo p.gov'; 'dhobbs @who.eo p.gov'; Comstock, Barba ra Subject: RE: Burton Wilson ha s agreed to our offer to review the 5 memoran da . Majority an d minority sta ff will ge t access to redact ed copies under the supervision of DOJ sta ff an d will be allowed to take notes . All copies will be returned to DOJ sta ff aft er they're done reviewing them. Wilson is comfortable with our ass urance that only informat ion which is relat ed to an open case or required by law will be redact ed , an d that we'll be availab le t o answer any ques tions ab out the redact ion process there aft er. (Please note there is nothing new ab out this assur anc e .} Jim indicat ed that this is "wonderfu l news", an d tha t he "perceives no (committee } interes t in going aft er the other subpoe na ed memoran da" and once they review these memos that "this will all go away". Dan Bryant plans to call him lat er today to confirm all of this. Working with Task Force att orneys we're in the process of finalizing reda ctions to be made to these documents an d ant icipat e DOJ will be ab le to make them available to the Committee early next wee k. V Document ID: 0.7.18648.6316 I 18-1620-C-000107 ---Or igina l Message-- - From : Brett_M ._ Kavana ugh@who. eo p.gov [mailto:Brett _M._Kavanau gh@who.eo p.gov] Sent: Wed nesda y, Feb rua ry 27, 2002 2:13 PM To : Thorsen , Carl Cc: Bryant, Dan; Collins , Dan; Whelan , M Edwa rd Ill; Mart ens , Matth ew; Horowitz, Micha e l-CRM; Colborn, Paul P Subject: Re: Burton - (b) (5) (b) (5) {Embedded image moved "Thorse n, Carl" to file: 02/27/2002 01:30:46 PM pic 11260.pcx) Record Type : Record To: "Whe lan, M Edwa rd Ill" {Receipt Notification Requested ) {1PMReturn Reques ted ), "Colborn, Paul P" {Receipt Notificat ion Reques ted ) {1PMReturn Requested), Brett M. Kavanau gh/WHO/ EOP@EOP cc: "Collins, Dan" <.Oan.Collins@usdoj.gov> {Receipt Notificati on Req ues ted ) {1PMReturn Reques t ed ), "Bryant, Dan" {Receipt Notificati on Reques ted ) {1PMReturn Requested) , "Horowitz, Micha el-CRM" {Receipt Notification Requested) {1PMReturn Reques ted ), "Mart ens , Matth ew" {Receipt Notificat ion Requested ) {1PMReturn Requested ) Subject: Burton as we all know that 's eas ier sa id than done. i've provisiona lly le t Committee staff know that the adm inistration might very well be willing to offer review of the S memos w/only 6{e), open ca se , and T# reda ction s, and asked them to 1) hol d off on any statem en ts or re leases and 2) think ca refu lly about what they might be willing to offer bac k to us vis a ., . . ,..... . ' , .. .. VERSIGHT Document ID: 0.7.18648.6316 ' ' 18-1620-C-000108 vis putt ing closure t o the dispute over these :w subpoenaed documen ts ( tloston, conrad , howa rd, midd leton). (b) (5) brett , i' d like to coord inat e with you an d your WH leg is on --- -Origina l Message- From: Whelan , M Edward Ill Sent: Wed nesda y, February 27, 2002 1:11 PM To: Thorsen , Carl; Colborn, Pau l P Cc: Collins , Dan Subject: RE: any word back from wh cnsl? (b) (5) ---- Origina l Message-- -From : Whelan, M Edwa rd Ill Sent: Wed nesd ay, Februa ry 27, 2002 1:09 PM To: Thorsen , Carl; Colborn, Pau l P Subject: RE: any word back from wh cns l? Surely Wilso n knows we're address ing this. Can't we get him to agree that nothing will happ en before a de cision is ma de ? -----Origina l Message--- - Mess age Copied To :__________________________ _ "Bryant, Dan" {Receipt Notificat ion Reques ted ) "Collins, Dan" (Receipt Notification Reques ted ) "Bybee , Jay" {Receipt Notificat ion Req ues ted ) {1PM Return Reques ted ) "Comst ock, Barba ra" {Receipt Notificat ion Req ues ted ) {1PM Return Req ues ted ) "Burton, Faith " {Rece ipt Notificat ion Req ues ted ) {1PM Return Reques ted ) "Colborn, Paul P" {Receipt Not ificat ion Reques ted ) ( 1PM Ret urn Req ues ted ) "Mart ens , Matth ew" {Receipt Notificat ion Req ues ted ) "Horowitz, Micha e l-CRM" {Receipt Notificat ion Req ues t ed ) 18-1620-C-000109 Document ID: 0.7.18648.6316 Bre tt M. Kavanau gh/W HO/ EOP@ EOP David W. Hobb s/W HO/ EOP@ EOP "Che rtoff, Micha e l" {Re ce ipt Noti ficat ion Req ues ted ) {1PM Retu rn Req ues ted ) VERSIGHT Document ID: 0.7.18648.6316 18-1620-C-000110 Comstock, Barbara From: Comstock, Barbara Sent: Thursda y, February 28, 2002 10:21 AM To: Bryant, Dan; Whe lan , M Edward Ill; ' Brett_ M._Kavanaug h@who.eop.go v' Cc: Thorsen , Carl; Collins , Dan; Burton, Faith; Bybee , Jay; Martens , Matt hew; Chertoff , Michae l; Horowitz, Michae l-CRM; Colborn , Paul P; ' David_W._ Hobbs@ who.eop.gov ' Subject: RE: Burton ditto ----Or igina l Message---From: Bryant, Dan Sent : Thursda y, February 28, 2002 10:21 AM To: Whe lan , M Edward Ill; ' Brett_ M._ Kavanaugh@ who.eop.go v' Cc: Comstock, Barbara ; Thorsen , Carl; Collins , Dan; Burton, Faith; Bybee, Jay; Martens , Matth ew; Chertoff, Michae l; Horowitz, Michae l-CRM; Colborn , Pau l P; 'David_W._ Hobbs@ who.eop.go v' Subjec t : RE: Burton I agree. ----Or igina l Message ---From: Whelan, M Edward Ill Sent : Thursday , February 28, 2002 9:26 AM To: ' Brett_ M._ Kavanaugh@ who.eop.go v' Cc: Comstoc k, Barbara; Thorsen , Carl; Bryant, Dan; Collins , Dan; Burton, Faith; Bybee , Jay; Martens , Matt he w; Chertoff, Michae l; Horowitz, Michae l-CRM; Colborn , Pau l P; 'David_W._ Hobbs@ who.eop.go v' Subjec t : RE: Burton I read ily defer to your judgmen t on this. ----Or igina l Message---From: Brett_ M._ Kavanaugh@ who.eop.go v !ma ilto :Brett _M._ Kavanaugh@ who.eop.go v] Sent: Thursda y, February 28, 2002 9:18 AM duplicate VERSIGHT Document ID: 0.7.18648.6305 18-1620-C-000111 duplicate 18-1620-C-000112 Document ID: 01186486305 duplicate 18-1620-C-000113 Document ID: 01186486305 duplicate 18-1620-C-000114 Document ID: 01186486305 duplicate 18-1620-C-000115 Document ID: 01186486305 Goodling, Monica From: Sent: To: Cc: Subject: Goodling, Monica Thursday, February 28, 2002 11:56 AM 'Brett_M._Kavanaugh@who.eop.gov'; Comstock, Barbara Whelan, M Edward III; Thorsen, Carl; Bryant, Dan; Collins, Dan; Burton, Faith; Bybee, Jay; Martens, Matthew; Chertoff, Michael; Horowitz, Michael-CRM; Colborn, Paul P; 'David_W._Hobbs@who.eop.gov' Burton stories Brett - Hi, I'm the senior counsel in Barbara's office at DOJ Public Affairs. Here are some of the relevant Burton stories . I'll (b) (5) send a daily email with additions on the subject. Take care. The Associated Press, February 27, 2002 HEADLINE: Congressman Wants FBI Records BYLINE: MELISSA B. ROBINSON Faced with a contempt threat, the Justice Department agreed Wednesday to give a congressional committee records on the Boston FBI's handling of mob informants in the 1960s, the committee chairman said. "My committee has been investigating this tragic case for over a year," said House Government Reform Chairman Dan Burton. "We've finally reached an agreement with the Justice Department to see the documents we need to see to move forward with this investigation." A department spokesman declined comment, saying he was reviewing the details. For now, the agreement settles the showdown between Burton and the White House over its use of executive privilege to shield prosecutorial documents from congressional scrutiny. The dispute had led to charges by both Democrats and Republicans that Bush was trying to run an "imperial" presidency. At a committee hearing Wednesday, Burton said he might try to hold President Bush in contempt because he and Attorney General John Ashcroft had yet to comply with a subpoena for the documents. After department officials and committee aides met later, the department agreed to provide five documents in question, the aides said. The committee had sought 10 records, but four were found to be irrelevant to the case or not responsive to the subpoena. One was provided earlier. Executive privilege is a doctrine recognized by the courts that ensures presidents can get candid advice in private without fear it will become public. Bush invoked it in December when he ordered Ashcroft not to turn the Boston records over. He argued that releasing the records could have a chilling effect on prosecutors' willingness to discuss criminal matters. VERSIGHT Document ID: 0.7.18648.6306 18-1620-C-000116 Burton has focused on revelations that Joseph Salvati of Boston spent 30 years in prison for a murder he did not commit even though the FBI had evidence of his innocence. LOAD-DATE: February 27, 2002 ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• *************************** The Associated Press, February 27, 2002 HEADLINE: Burton drafting contempt citation against Bush to get FBI records from the 1960s BYLINE: By MELISSA B. ROBINSON, Associated Press Writer The chairman of a House committee said Wednesday he may try to hold President Bush in contempt of Congress for failing to turn over Justice Department records on the FBI's handling of mob informants in Boston in the 1960s. Rep. Dan Burton, R-Ind., chairman of the Government Reform Committee, said during a hearing on the Boston case that his panel's legal staff "is preparing a contempt citation." If Bush and Attorney General John Ashcroft "continue to be recalcitrant, I hope everyone on this committee will support me in getting the House to move this forward," Burton said. It's unclear how long Burton will wait for the documents before deciding to bring the citation before his committee for consideration. If he does, and the committee approves it, he would then have to convince the House's Republican leaders to bring the citation against a GOP president to the full House for a vote. Bush ordered Ashcroft to withhold the documents from the committee in December. He cited executive privilege, a doctrine recognized by the courts that ensures presidents can get candid advice in private without fear it will become public. Bush argued that releasing records could have a chilling effect on prosecutors' willingness to discuss criminal matters. Committee members of both parties have argued the documents should be released to Congress so it can fulfill its responsibility of monitoring the executive branch's activities. With regard to the Boston case, they want to ensure that past excesses of the FBI aren't repeated. Among the facts Burton's committee has learned since it began looking into the issue is the FBI's knowledge that an innocent man was convicted of a murder actually committed by an FBI informant. LOAD-DATE: February 28, 2002 ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• ************************ The Boston Globe, February 27, 2002 SECTION: NATIONAL/FOREIGN; Pg. A3 HEADLINE: UNLIKELY FRIENDS, ENEMIES BURTON PROBE RILES BUSH, WINS VERSIGHT Document ID: 0.7.18648.6306 18-1620-C-000117 PRAISE FROM DEMOCRATS BYLINE: By Wayne Washington, Globe Staff WASHINGTON - Dan Burton is a conservative Republican who has been liberal in his scorn for Democrats. Few Republicans in Congress are seen by their Democratic counterparts as more partisan, more scandal-raking than Burton, a 10-term representative from Indiana. As chairman of the House Committee on Government Reform, he has conducted hearings on Bill Clinton's White House and presidential pardons, Democratic fund-raising, and the Clinton administration's handling of the FBI raid in Waco, Texas. So how come Massachusetts Democrats have started saying such nice things about Burton? Representative William D. Delahunt of Quincy calls him "passionate." Representative Barney Frank of Newton says some of Burton's recent actions have been "impressive." The surprising praise stems from Burton's investigation into how the false testimony of a murderous FBI informant sent four men to prison in 1967 for slaying Edward "Teddy" Deegan in Chelsea, a crime they did not commit. Two of the men died in prison. Two served about 30 years each before their convictions were overturned. Burton will continue digging into the case today, when another committee hearing is scheduled. For more than a year now, the Government Reform Committee has trained a sharp focus on what the FBI knew about the informant, the lengths it went to protect him, and its willingness to allow innocent men to be imprisoned on testimony the agency knew to be false. That focus has put Burton at odds with the Justice Department and the Bush White House. Delahunt, a former Norfolk County district attorney with an interest in the case, says he originally preferred to have the House Judiciary Committee do the investigating. Three Massachusetts congressmen - Delahunt, Frank, and Martin T. Meehan - serve on Judiciary, and they would have surely gotten involved in a Boston-related case. Republicans control the House, however, and that panel's Republican chairman, F. James Sensenbrenner Jr. of Wisconsin, had little interest in pursuing a case that would almost certainly be a headache for the Bush administration. To the surprise of many Democrats, Burton pressed ahead. He decided to conduct hearings and invited the Massachusetts Democrats to participate. The invitation was more than mere congressional courtesy. Delahunt, for example, was dispatched to Boston last week to take the deposition of a retired FBI agent who declined to travel to Washington to provide testimony. Delahunt said his working relationship with Burton has been terrific. "He's treated me with respect, and we've gotten full cooperation," Delahunt said. Mark Corallo, spokesman for the Government Reform Committee, said fairness and justice are Burton's main interests. "Contrary to popular belief, the chairman has always believed you have to look at the issues objectively," Corallo said. Democrats "know he's still a conservative Republican, but there are instances where everybody can come together," he said. AMERICAN PVERSIGHT Document ID: 0.7.18648.6306 18-1620-C-000118 Well, not everybody. The Justice Department has refused to comply with a committee subpoena for FBI records in the case. President Bush has issued an order contending that executive privilege allows his administration to keep the documents secret. That position has infuriated Burton, who contends officials at the highest levels of the FBI, including then-director J. Edgar Hoover, knew the men being convicted were not guilty. "He knew it, and his name should not be emblazoned on the FBI's headquarters," Burton said on "60 Minutes" last month. "We ought to change the name of that building." Such fiery rhetoric is typically aimed at Democrats. "Burton's willingness to take on the Bush administration has been impressive," Frank said. "His willingness to go after the memory of J. Edgar Hoover is impressive." In the past, Frank has been one of Burton's sharpest critics. "I thought his Clinton stuff was wacky," he said. "I'm critical of his positions. I'm less critical now of his motives." Frank said he's particularly struck by the timing of Burton's actions. "We've been in this atmosphere where we're giving more power to law enforcement," Frank said. "We should give law enforcement more power. They're the good guys. They're protecting us. But Burton is showing what can happen when that power is abused." Still, some Democrats squirm at the news that Burton is getting praise from members of their party. Frank said colleagues have told him, "Don't be so nice to the guy." Frank said he and his Massachusetts colleagues are giving praise where praise is due. "Yes, I dislike Dan Burton," Frank said. "If he went back to doing some of the Clinton stuff, I'd be critical. But what goal is served by not encouraging him to go after these FBI abuses? Why would I not want to encourage that?" Delahunt said he has sensed no reluctance from Burton about confronting the administration. "In my mind, Dan Burton has proven himself beyond any reasonable doubt that he's interested in the facts of this case," Delahunt said. Corallo, the Government Reform Committee spokesman, said Burton, who spent last week at home in Indiana with his sick wife, feels vindicated by the praise of Democrats. The relationship between Burton and Democrats has gone a long way toward bridging a partisan gap that developed during the Clinton administration, Corallo said. "When you can start smiling at each other in the halls again, that's nice," Corallo said. GRAPHIC: PHOTO, AP PHOTO LOAD-DATE: February 27, 2002 ***************** ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• VERSIGHT Document ID: 0.7.18648.6306 18-1620-C-000119 Knight Ridder Washington Bureau, February 26, 2002, Tuesday HEADLINE: Bush White House, Congress in a Tug-of-War over Balance of Power BYLINE: By James Kuhnhenn WASHINGTON -- The Bush White House provoked a major lawsuit and is angering even its political allies in a campaign to increase its control over federal spending and public information. At stake are public access to White House deliberations, the fate of federal projects in communities across America, and the ever-shifting balance of power between Congress and the presidency. Last week, the General Accounting Office, the investigative arm of Congress, sued Vice President Dick Cheney to learn who participated in meetings he chaired while formulating the administration's energy policy. The suit was the latest move in a series of clashes that illustrate the administration's determination to reverse what it believes is a decades-long erosion of presidential authority. Congress is fighting back on other fronts as well. Some influential lawmakers, including senior Republicans, are bristling at efforts by the White House Office of Management and Budget to limit spending on projects in their home districts. And when the White House rejected a request by Rep. Dan Burton, R-Ind., for Justice Department documents on organized crime dating to 1967, Burton threatened to hold President Bush in contempt of Congress. Power struggles between Congress and the White House date to the nation's founders. But the current quarrels are distinguished by the administration's unyielding stance and the bipartisan furor it has aroused. They are especially noteworthy given a president who promised an administration characterized by openness and affability. "It's hard to be an open populist when you're trying to protect presidential power," said Marshall Wittmann, a Republican strategist and fellow at the Hudson Institute, a conservative policy research center. But for Cheney and Bush, fortifying the presidency is as much a policy goal as cutting taxes and building up the nation's defenses. "One of the things that I feel an obligation on, and I know the president does, too ... is to pass on our offices in better shape than we found them," Cheney said recently on ABC's "This Week." "We are weaker today as an institution because of the unwise compromises that have been made over the last 30 or 35 years." That view has brought the GAO lawsuit and the thundering contempt-of-Congress threat from Burton, the chairman of the House Government Reform Committee. It has also led to a confrontation over what many lawmakers maintain is their fundamental right under the Constitution -- the power to decide how to spend taxpayers' money. The White House and its budget office are out to limit Congress' practice of adding to spending legislation special projects for the folks back home. AMERICAN PVERSIGHT Document ID: 0.7.18648.6306 18-1620-C-000120 Upon delivering the budget to Congress earlier this month, White House Budget Director Mitchell Daniels declared that such spending "has gotten out of hand." The administration took a swipe at Congress in the budget document, singling out an $ 80,000 grant to a Wisconsin county sheriff's department for the purchase of an Ice Angel Windsled, used for winter rescues on frozen Lake Superior. It was no coincidence that the Republican Bush administration zeroed in on a project championed by the ranking Democrat on the Appropriations Committee, Wisconsin's David Obey. Obey was furious. But Daniels had angered Republicans, too. To make up for a shortfall in a federal education program, he wanted to eliminate hundreds of health and education projects that members inserted into spending legislation last year. Appropriations Committee Chairman Bill Young, R-Fla., fumed. "All wisdom on the allocation of federal grant funding does not reside in the executive branch," he wrote Daniels on Feb. 6. "Unless the Constitution is amended, Congress will continue to exercise its discretion over federal funds and will earmark those funds for purposes we deem appropriate." National moods, scandals and the personalities of the individuals occupying the White House have dictated the power swings from White House to Congress over the years. Congress was at its peak of power in the post-Watergate period. "As time has passed, it has swung back to the executive," said Gary Bass, executive director of OMB Watch, a research group that advocates openness in government. "And this administration has put much greater stock in protecting executive turf." In the end, the Bush White House may not win all these confrontations. But by drawing a line across Pennsylvania Avenue and daring Congress to cross it, Bush and Cheney have done more to assert presidential power than previous administrations. But the White House faces significant political risks. The public may be more likely to believe that a president is hiding something rather than protecting a constitutional principle. Among the energy industry executives who advised Cheney last year was Kenneth Lay, then Enron Corp. chairman, and a major fund-raiser for Bush's presidential campaign. By fighting the GAO, the White House gives fuel to critics who say that Cheney, a former energy company executive himself, was drafting a policy to benefit the administration's industry friends. Others say that Enron and energy policy aside, a successful White House stand could dramatically alter how Congress performs its job as a check on the executive branch. "This could have huge, huge policy implications," said Bass of OMB Watch. "I do believe that Cheney and the White House are pursuing a principled issue on the energy task force. ...This is beyond Enron and the work of the Cheney task force. This is an issue about executive power." LOAD-DATE: February 26, 2002 ************************** The Washington Post, February 26, 2002, Tuesday, Final Edition SECTION: A SECTION; Pg. A19; WHITE HOUSE NOTEBOOK DANA MILBANK AMERICAN PVERSIGHT Document ID: 0.7.18648.6306 18-1620-C-000121 HEADLINE: Pizza Crust, Principles and Politics BYLINE: Dana Milbank It was the modern political equivalent of Moses and the Burning Bush. On Inauguration Day 2001, Bush presidential aides entered the White House to discover the Miracle of the Warm Pizza Crust. The famous crust was found, appropriately enough, in a pizza box that had been left on a desk when a Bush aide arrived for work on the new administration's first day. The discovery was included in a list of alleged vandalism of White House offices by departing Clinton aides, furnished by the Bush White House to the investigative arm of Congress, the General Accounting Office. But when presented with the warm-crust allegation, Clinton officials pointed out that no Clinton aides assigned to that office were even in the White House complex after Jan. 19 -- the day before inauguration. This means that even if the Clinton aides left at midnight the night before and the Bush aides showed up at noon on Inauguration Day, the pizza crust stayed warm for 12 hours. That the Bush administration would cooperate so freely in the GAO investigation of such matters as pizza temperature in the Clinton White House stands in stark contrast to the administration's stand against another GAO investigation, this one involving Vice President Cheney's energy task force. In protecting the identities and requests of outsiders who met with the task force, top White House officials have indicated they may challenge the constitutionality of the law empowering the GAO -- a move that, if successful, would pretty much put the 80-year-old office out of business. In the GAO's Clinton vandalism probe, due to wrap up in April, the Bush administration has furnished the agency with a list of allegations. "We are saddened that especially after the events of September 11, 2001, the White House continues to push this matter," two former Clinton aides in charge of White House administration, Mark Lindsay and Mike Malone, wrote to the GAO last month. Lindsay and Malone pointed out some apparent flaws in the catalogue of Clinton vandalism, including the Warm Pizza Crust incident. The Bush team gave the GAO a photo of a dirty room in the White House complex, but the Clinton aides wrote that "the office featured in the photograph was vacated at least one week prior to Inauguration Day, and had been in fact completely cleaned by the morning of January 20th." Then there was the case of Room 145 in the building next to the White House. The Bush administration said "historical artifacts" had been taken from the office. "We understand that at least one of the artifacts, an historic fireplace mirror, can be found hanging over the fireplace in [Bush] Chief of Staff [Andrew H.] Card's office," Lindsay and Malone wrote. The GAO itself, in its suit filed last week against Cheney over the energy task force records, argues that the White House worked to "facilitate the investigation" into alleged Clinton vandalism. The suit points out that before President Bush came to office, "the executive branch has complied with countless GAO requests for information." The Clinton White House gave GAO the names of outside consultants who met with its health care task force and "thousands of documents" from a task force on trade relations with China. AMERICAN PVERSIGHT Document ID: 0.7.18648.6306 18-1620-C-000122 Even the Nixon administration, no standard of transparency, relented during the Watergate years when the GAO wished to examine White House records. "To litigate the GAO's authority would bring only negative publicity and defeat," former Nixon counsel John Dean has said. Apples and oranges, says the Bush White House. Previous GAO requests did not involve requests for information about meetings of the president or vice president, Bush aides say, while the current request is for meetings held by Cheney in his role as head of the task force. "This would be something we've never seen before," a senior Bush aide says. But that principle is a bit murky. While the GAO had not previously asked the current White House for information regarding the contacts of the president or vice president, the Bush White House has been quick to relinquish to Congress such information from the Clinton White House. Last September, Rep. Dan Burton (R-Ind.), chairman of the House Government Reform Committee, asked for e-mails from the Clinton White House to see whether campaign contributors had inappropriate influence over President Bill Clinton and Vice President Al Gore. The National Archives, noting that Bush "agreed to this release," turned over 2,000 pages of e-mails two months later, including those to Gore from his staff and between senior Gore staff. Also last year, Bush raised no objection to handing over to Burton's committee 2,475 pages of Clinton documents related to the Marc Rich pardon -- including phone records, a list of visitors cleared to enter the White House and notes of Clinton conversations with a foreign leader. Clinton did not object. But such flexibility was learned the hard way. Lanny Davis, who was Clinton's special counsel, says Bush is right to stiff the GAO, and Clinton was right to try to block earlier congressional "encroachments," too. Problem is, it never works. "Been there, done that," Davis said. "We abandoned principle under the pressure of politics, and unfortunately, that's going to happen here." LOAD-DATE: February 26, 2002 AMERICAN PVERSIGHT Document ID: 0.7.18648.6306 18-1620-C-000123 Goodling, Monica From: Sent: To: Cc: Subject: Goodling, Monica Friday, March 01, 2002 4:29 PM 'Brett_M._Kavanaugh@who.eop.gov'; Comstock, Barbara Whelan, M Edward III; Thorsen, Carl; Bryant, Dan; Collins, Dan; Burton, Faith; Bybee, Jay; Martens, Matthew; Chertoff, Michael; Horowitz, Michael-CRM; Colborn, Paul P; 'David_W._Hobbs@who.eop.gov' New Burton stories Salon.com, March 2, 2002 Saturday HEADLINE: A Democratic senator goes nuclear on the White House BYLINE: By Jake Tapper HIGHLIGHT: Nevada's Harry Reid talks with Salon about why he joined the GAO lawsuit against Dick Cheney and why he called George W. Bush a liar. BODY: It's nuclear war. Or nuclear waste war, at any rate. It began on Feb. 15, when President Bush announced that he would formally recommend Yucca Mountain, 100 miles northwest of Las Vegas, as the site where the United States would bury its nuclear waste. And it has accelerated this week, as Sen. Harry Reid of Nevada, the No. 2 Democrat in the Senate, filed a "friend of the court" brief with the General Accounting Office's lawsuit against Vice President Dick Cheney. The GAO -- and Sen. Reid -- want to know more about the private meetings Cheney held with energy executives as the administration was developing its energy policy. That information, Reid believes, will explain the Yucca Mountain decision. "President Bush has broken his promise," said an angry Reid shortly after the White House decision. "All Americans should be concerned, not just because he lied to me or the people of Nevada and indeed all Americans, but because the president's decision threatens American lives." The next day, according to a knowledgeable source, White House chief of staff Andrew Card called Reid three times to discuss why the senator had called the president a liar. Reid did not return any of the calls. But Reid obviously stands by his words. During the presidential campaign, Bush assured Nevada's citizens that he would not ship nuclear waste to any proposed site "unless it's been deemed scientifically safe" -- a vow, says Reid, that he made to win Nevada, a state whose electoral votes he desperately needed (and ended up carrying by just 3.4 percent). Nevada politicians have long fought attempts to turn their state into a dumping ground for the 77,000 tons of nuclear waste stockpiled throughout the country (as well as the 2,000 tons of new waste generated each year). Since Congress picked Nevada's Yucca Mountain as a nuclear waste site in 1987, more than $4 billion has been spent, by some estimates, on studying the suitability of the site. Energy Secretary Spencer Abraham told reporters, "It is my strong belief the science supports the safe use of this repository." But Reid cites the General Accounting Office, the Inspector General of the Department of Energy, the Inspector General of the Nuclear Regulatory VERSIGHT Document ID: 0.7.18648.6311 18-1620-C-000124 Commission, and the Nuclear Waste Technical Review Board as all having raised various concerns about the decision to proceed with the Yucca Mountain site. The decision is anything but final; GOP Nevada Gov. Kenny Guinn has 60 days to object to the decision; he is expected to formally file his objections to the choice by April. Congress will then have approximately three months to override Guinn's objections, which promises to be a tough fight. In the meantime, Reid is convinced that the task force list will explain what went wrong. "There is no question that Vice President Cheney met on several occasions with nuclear power executives," Reid said on Monday. He charged that after energy executives met with Cheney's task force, Bush "flip-flopped on the issue, and I think these meetings had something to do with it." The White House vehemently denies Reid's assertions. "The president made the right decision for the country, after a thorough review by the EPA and the Department of Energy found the site to be scientifically safe," White House spokesman Scott McClellan told Salon. "As far as the issue of the lawsuit, we welcome the opportunity to fight for the important principle of the president being able to get open and candid advice to make sound public policy decisions." On Thursday afternoon, Salon talked with Sen. Reid about the growing legal battle with the White House. It's a fairly bold move, suing the administration. How did you make this decision? I feel that President Bush was elected president of the United States because he carried Nevada. And he carried Nevada in an unusual way. He came to Nevada once during the entire campaign. He came to Lake Tahoe. And he refused to answer questions from reporters because of the nuclear waste issue. Al Gore was way out in front on the nuclear waste issue, and he was way out in front in state polls. So later in the campaign Bush sent Cheney to the state a couple times to say that they would be just like Clinton and Gore on the issue and the decision would be only based on sound science. Since then there have been scientific reports about Yucca Mountain. GAO reported that there are 292 investigative reports about the site that have not been done. The Nuclear Waste Review Board has said that the science surrounding the decision to store waste at Yucca Mountain is poor. But Energy Secretary Abraham has said the opposite. There is an absolute, determined conflict of interest at the Department of Energy because Spence Abraham gets legal advice from the law firm Winston and Strawn, which is also advising the Nuclear Energy Institute, which is the umbrella for the nuclear power industry. Anyway, the reason I've taken this step is because I feel that the president misled the state of Nevada. He didn't tell the truth. I also believe that the meetings Vice President Cheney had with energy executives where he came up with the energy policy of this country could have been a determining factor in the recommendation President Bush gave about Yucca Mountain . We do know that Cheney met with a significant number of nuclear power generators. We want to find out who he met with, what happened in the meetings, what they discussed. The Democrats in the Senate and the House have been criticized by some commentators for being timid in their criticisms of Bush and Cheney. You, on the other hand, are suing them. Here's how I feel about that: I know a war is going on. I understand that; I appreciate that. AMERICAN PVERSIGHT Document ID: 0.7.18648.6311 18-1620-C-000125 And I think the Democratic leadership has been coming together to try to solve our problems. But despite the war going on, this is not a dictatorship. The government is three separate but equal branches of government. I have just as much of a right to speak out as the president does. The fact that he's popular right now doesn't mean I won't speak out about things I disagree with him on. What's been the reaction from your fellow Democrats to the lawsuit? I have heard from my friends in just the last few days. They've told me that they're glad I did it. It's kind of "Follow me, I'm right behind ya." Any reaction from Republican colleagues? I haven't had any of those coming over and patting me on the back. There are risks involved in suing the administration. You might be known as litigious. Might be dismissed that way. Have any political consultants expressed to you a fear of your becoming the Dan Burton of the Senate? No, that doesn't bother me. I'm a lawyer; I've been to court lots and lots of times. It was my business 20 years ago. I try to be judicious when I criticize courts or when I attempt in some manner to use the courts. Do you actually suspect that something fishy occurred during those energy task force meetings? Of course I do, absolutely. I think this administration is so tight with the oil companies and the powerful utilities in our nation that we have an energy policy that's been dictated through Cheney that is now the word on the street that the administration is pushing. Sure it's fishy. Why are they refusing to give us this information? If it isn't fishy then it appears fishy just because they won't give us the stuff. Now Bush supporters behind the scenes are arguing that Congress has exempted itself from many of the laws requiring the disclosure of deliberative advice, the Freedom of Information Act, and other sunshine laws that require politicians to disclose whom they get advice from. Is it fair to ask the White House to live up to a standard from which Congress exempted itself? This is such an old-fashioned statement. It sounds like they've gone back and picked a page or two from Newt Gingrich's notebook. We're a separate but equal branch of government. The president has the right through his tremendous powers to do all kinds of things when it comes to rulemaking and meetings held. And we have the right to ask about it. For them to ask why don't we disclose is so amateurish it's hardly worth a retort. The White House considers itself to be fighting for a principle, that the president ought to be able to receive open and candid advice without interference from others. That they should be able to make public policy decisions free from politics. There's no question that the president and the vice president receive tons of private information to help them develop policy. Either one-on-one people come to see them, or from their staff after people come to visit with their staff. But here it's a different situation. The president of the United States set up an energy task force to come up with an energy plan for the nation. He assigned as the head of that Cheney. You remember the bucket of tears they cried when Hillary Clinton was coming up with the healthcare AMERICAN PVERSIGHT Document ID: 0.7.18648.6311 18-1620-C-000126 policy and she was forced to turn over her records. You can't speak out of both sides of your mouth on this. What's good for the goose is good for the gander. It's totally different from information they receive to come up with the policy for Afghanistan. It's different than the policy as to what he's doing with the Cabinet and those meetings -- those are private. We understand that. But this is different, this is a task force. An argument I've heard you make is that the action of shipping nuclear waste across the country -- requiring maybe 100,000 trucks going through 42 states -- is dangerous. But others argue that tons of high-level, highly radioactive nuclear waste have been shipped cross-country without incident. Have there been incidents that alarm you? There are a number of examples of environmental groups following these trucks, knowing where they are, and they easily could have done something mischievous or something very bad to these trucks. Frankly I can't think of any incidents with high-level nuclear waste but we recently had one with low-level nuclear waste in West Wendover on the Utah-Nevada border. A truck was leaking nuclear waste; it just happens. And that example is one we know about; there are a number we don't know about because they keep 'em quiet. There was a serious incident they found with nuclear waste being shipped from West Valley, N.Y. So the answer is yes, I know of incidents. And go back a few short months ago. There was a tunnel in Baltimore that caught fire and burned for a week. Trains go through that; that was a train tunnel. This will be 77,000 spent fuel rods going through the country. With Sept. 11, with terrorists looking for targets of opportunity, this will be thousands of trucks and thousands of trains and thousands of targets of opportunity. We know you can pierce one of these canisters with a military weapon, one that an individual can fire. But is keeping the waste where it is necessarily any safer? There are 131 nuclear power plants in 39 states. "More than 161 million people live within 75 miles of one or more of these sites," Abraham said, arguing that it would be better to secure the waste in one location than in 131 different locations. This guy's a Harvard Law grad; he should go work on his script a little better. He uses this argument, that we've gotta have it in one site instead of 130. But we're always gonna have those 130 sites - they're still producing energy! They're not going to go away. This is simply foolish. Another thing these people, these Harvard lawyers, say is, "Well then what should we do with it?" Leave it where it is. These are dry cast storage containers that are easy to secure, and cheap to secure for the next 100 years. I'm confident that then the great scientific minds of America can determine something over the next few decades as to what to do with the spent fuel rods. The one question you haven't asked me is, am I afraid of White House retribution. Of course I am but you do what you have to sometimes. One last one then. Your state went for Bush in 2000. You think that will happen in 2004? Not a chance. And we've got one more electoral vote now. He doesn't care; he doesn't need Nevada anymore -- I guess that's the reasoning. But he would not be president without having carried Nevada. ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• VERSIGHT Document ID: 0.7.18648.6311 18-1620-C-000127 ****************************** Howey Political Report (3/1) joined ABC News correspondent Jackie Judd for an interview of Rep. Dan Burton, Chairman of the House Government Reform Committee. Asked by Judd if he has requested that the Administration relent in its opposition to releasing Justice Department documents relating to possible FBI corruption in mafia informant cases, Burton said, "Oh, have I ever. I've had the Justice Department before my committee I think two or three times now. I contacted and talked with Mr. Gonzalez, chief counsel to the President. I've met with Attorney General Ashcroft and his chief lieutenants over at the Justice Department. I think all presidents don't like the thought of Congress looking over their shoulder." Asked about the Administration's secrecy, Burton said, "I think they're going too far. I have very high regard for President Bush. I think he's doing a good job with the war and getting the economy moving again. But he's getting some very bad advice on executive privilege and the use of his executive power." Asked if there was "irony" in the fact that he is "proving you're an equal opportunity bitch," Burton said, "No. I think I have a death wish. I don't think I want anybody to like me." Asked by HPR's Brian Howey about the White House's lawsuit with the General Accounting Office, Burton said, "It looks like they're trying to keep something from the public. I don't think they have anything to hide, but that doubt is there. The Democrats are not going to let up on that. The war may wind down and people are going to start looking at the economy, unless there's another terrorist attack. If the Democrats keep beating on that drum, it could be a major factor in the election. I want there to be openness. President Bush senior, his popularity was about 90 percent after the Gulf War. He lost. This is three years from the next election. The President's popularity is sky high, but that could change in 30 days. I think they're building up a lot of good will, but could go down if the American people start to distrust him. I don't want that to happen." Asked how much longer he planned to remain in Congress, Burton said, "I'm one of the senior members on International Relations. We have a new procedure now for picking a new chairman. They are elected by the caucus. Henry Hyde had told me he's going to run one more term and I would like to be considered for the chairmanship." LOAD-DATE: March 1, 2002 ****************************** ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• THE HARTFORD COURANT, February 28, 2002 SECTION: MAIN; Pg. A1 HEADLINE: CONGRESS HEARS A SORDID FBI TALE BYLINE: EDMUND H. MAHONY; Courant Staff Writer A former chief Connecticut prosecutor, in testimony that at times was taunting and at others dripped with sarcasm, told Congress Wednesday that groundbreaking organized crime investigations were sabotaged by renegade FBI agents. Austin J. McGuigan, chief state's attorney from 1978 to 1985, described to stunned members of the House Committee on Government Reform how gangsters penetrated the state's fledgling parimutuel gambling industry in the 1970s and '80s, then murdered potential witnesses to throw investigators off the track. McGuigan's most compelling testimony concerned his belief that corrupt FBI agents working VERSIGHT Document ID: 0.7.18648.6311 18-1620-C-000128 in Boston deliberately withheld evidence from state and local authorities around the country in an effort to destroy investigations associated with the jai alai industry -- and protect the killers, who were their informants. "It is clear that major organized crime figures operating as informants were permitted to engage in racketeering activities with a wink from, if not the tacit approval of, federal agents," McGuigan said. Over the past year, committee members have learned during hearings that one of those agents, H. Paul Rico, who retired from the FBI in 1975, was hired a year later as vice president and director of security for World Jai Alai of Miami, which operated jai alai frontons in south Florida and Hartford. During an appearance before the committee last spring, an unrepentant Rico argued with members when confronted with evidence that he helped frame four innocent men for murder. During a second appearance earlier this month, he invoked the Fifth Amendment and declined to answer questions. On Wednesday, McGuigan reserved some of his sharpest sarcasm for Rico, who he said allowed mobsters to be employed by World Jai Alai, contrary to his apparent duties as security director. "I was somewhat puzzled by that," McGuigan said, adding that "quite frankly, from our perspective, organized crime was being made to feel at home by World Jai Alai." McGuigan and a few other veteran organized crime investigators have spoken privately for years about the bizarre set of circumstances surrounding mob penetration of Connecticut's jai alai industry. But listeners couldn't believe that the FBI, an institution then long judged to be above reproach, was behind it all. McGuigan said that when three key witnesses in the jai alai cases were murdered in the 1980s, he would have laughed off any suggestion that one day he would be asked to address Congress on the subject. "We thought the bad guys had won," he said. "To me, today, it is touching that I'm here and that so many people who worked so long to uncover the truth have passed away and have not seen justice done." After nearly a year of hearings into improper behavior involving FBI agents and their informants, members of the committee gave McGuigan a warm reception. "I consider these hearings some of the most important hearings that Congress can have," said Rep. Christopher Shays, R-4th District. Previous efforts to examine the mob penetration of the jai alai industry have sputtered because of the difficulty of keeping track of the wide cast of characters. As McGuigan, who in 1973 became the first Connecticut prosecutor with statewide jurisdiction over organized crime and corruption, testified about his experience, committee members listened raptly, sometimes goggle-eyed. Chairman Dan Burton, R-Ind., periodically interrupted to demand relevant documents from the Department of Justice. In a related development, Burton announced late Wednesday that he had reached an agreement with the Bush administration that will allow his committee to review Justice Department documents related to its investigation of FBI misconduct in Boston. AMERICAN PVERSIGHT Document ID: 0.7.18648.6311 18-1620-C-000129 In December, President Bush asserted executive privilege to block the committee from reviewing internal Justice Department documents, sparking a face-off over the constitutionality of congressional oversight. Bush argued that congressional review of deliberative documents could lead to political second-guessing of decisions in criminal matters. Internal FBI memos and other federal documents the committee and others already have obtained back up McGuigan's central contention -- that mobsters from Boston's Winter Hill Gang tried to take over World Jai Alai in order to skim profits. At the center of the plot were the Winter Hill Gang's co-leaders, James "Whitey" Bulger and Stephen "The Rifleman" Flemmi. Bulger and Flemmi were multiple murderers who also served, collectively for decades, as top informants for the FBI's Boston office. Rico was instrumental in recruiting Flemmi as an informant. Recently, a special Justice Department task force indicted Bulger and Flemmi for the three jai alai murders, including that of World Jai Alai owner Roger Wheeler Sr. of Tulsa, Okla. A compelling body of evidence gathered by the committee and others suggests that some FBI agents in Boston obstructed investigations -- including those involving jai alai -- to protect Bulger and Flemmi from arrest. McGuigan said Bulger and Flemmi were part of a "war on organized crime that went amok." "Violent crimes, including murders by so-called informants, were ignored at the whim of law enforcement agents who were, apparently, accountable to no one," McGuigan said. "In the name of intelligence-gathering, state and local prosecutions of violent criminals were undermined and investigations were betrayed." When Connecticut investigators began following organized crime into World Jai Alai, agents in Boston withheld crucial information, McGuigan said. Moreover, he said, they tipped off targets of the investigation. Finally when potential witnesses began being killed, he said, federal authorities in Boston undercut Connecticut investigators. At one point, McGuigan said, Rico, using information from police sources in Boston, tipped off an investigative target to information collected by the Connecticut State Police. The target was John B. Callahan, a reputed Winter Hill associate who became president of World Jai Alai and was later murdered in Florida. Callahan's body was dumped at the Miami airport on the day McGuigan and state police detectives arrived, hoping to persuade him to cooperate. "They tanked our investigation," McGuigan said. "I realized we weren't playing for the same team." Rep. William Delahunt, D-Mass., asked if McGuigan began to smell a rat: "Did the smell become more putrid at that point?" "Yes," McGuigan said. "It was troubling." McGuigan said charges probably never would have been filed in the jai alai murders if Flemmi had not been arrested in 1995 and used his informant status as a defense. "These are murders that seemed unsolvable, and it seemed the coverup had succeeded," McGuigan said, "until ... Flemmi decided to claim that he had a free pass on the crime train, because of his status as an FBI informant." GRAPHIC: PHOTO 1: COLOR, Associated Press; PHOTOS 2-5: (b&w) mugs; PHOTO 1: AMERICAN PVERSIGHT Document ID: 0.7.18648.6311 18-1620-C-000130 AUSTIN J. MCGUIGAN / FORMER CONNECTICUT CHIEF STATE'S ATTORNEY, LEFT, TESTIFYING WEDNESDAY. PHOTO 2: BULGER; PHOTO 3: CALLAHAN; PHOTO 4: FLEMMI; PHOTO 5: WHEELER LOAD-DATE: February 28, 2002 ****************************** ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• United Press International, February 28, 2002, Thursday HEADLINE: Justice relents on FBI files BYLINE: By P. MITCHELL PROTHERO The Justice Department has agreed to allow investigators from a House committee access to some documents related to FBI criminal investigations. After President Bush claimed executive privilege in December, the House Government Reform Committee threatened to hold the administration in contempt of Congress. Most of the documents relate to several FBI scandals concerning the use of informants in organized crime investigations in New England during the 1960s and 1970s. "I want to thank the attorney general and the White House for working with us as we have been trying to uncover the corruption that existed in the Boston FBI for four decades and do our part to right a tragic wrong," said Committee Chairman Dan Burton, R-Ind. The committee had subpoenaed as many as 15 documents and prosecution memos involving the use of testimony by Joe "The Animal" Barboza in several Mafia trials in the late 1960s and the use of two Boston mobsters as confidential informants, James "Whitey" Bulger and Steve "The Rifleman" Flemmi, from 1975 to 1995. Bulger and Flemmi are suspected of having ordered or committed as many as 20 slayings during that period as the men allegedly consolidated control over the Boston organized crime community, despite working with the FBI. Burton has demanded any documents that discuss the decision by the Justice Department not to prosecute the men until 1995 despite the widespread belief they were using their FBI relationship to help the criminal enterprise. In a related case being looked at by investigators, it appears the FBI knowingly allowed four men to be convicted in 1967 of a murder, despite clear evidence the men were not involved. In the Senate, Sens. Charles Grassley, R-Iowa; and Patrick Leahy, D-Vt., have introduced legislation to increase oversight of the FBI and to give the Justice Department inspector general the authority to investigate abuses within the bureau. LOAD-DATE: March 1, 2002 VERSIGHT Document ID: 0.7.18648.6311 18-1620-C-000131 Brett_M._Kavanaugh@who.eop.gov Brett_M._ Kavanau gh@who.eop.go v From: Sent: Thursday , March 07, 2002 2:00 PM To: Whe lan , M Edwa rd Ill Subject: Exemption !(6) What is th e potent ial app licab ility of this FOIA exemp tion to documen ts that ? VERSIGHT Document ID: 0.7.18648.6319 (b) (5) 18-1620-C-000132 18-1620-C-000133 Document ID: 0.7.18648.6324-000001 Koffsky, Daniel L From: Koffsky, Daniel L Sent: Friday, March 08, 2002 12:03 PM To: ' Brett_M._Kavanaugh@ who.eop.gov ' Ce: Whe lan , M Edward Ill Subject: RE: different subject (b) (5) Brett: I'll fax you our 1995 guide line s on 18 U.S.C. 1913. ---Or igina l Mes sage- From: Brett_M._Kavanaugh@who.eop.gov {ma ilto:Brett _M._Kavanaugh@who.eop.gov ] Sent: Friday, March 08, 2002 10:22 AM To: Koffsky, Daniel L Subject: different subject (b) (5) VERSIGHT Document ID: 0.7.18648.6326 18-1620-C-000134 Brett_M._ Kavanaugh@who.eop.go v Bre tt_ M._Kavanau gh@who.eop. gov From: Sent: Mon day , Ma rch 11, 2002 11 :41 AM To: Whe lan, M Edwa rd Ill Subjec t: RE: Burton Attachments : pic 16976.pcx (b) (5) {Embedded ima ge mov ed "Wh e lan , M Edwa rd Ill" to file: 03/ 11/2002 09 :57:42 AM pic 16976.pcx ) Re co rd Type : Re cord To: Bre tt M. Kavanau gh/WHO/ EOP@ EOP cc: Subje ct: RE: Burton (b) (5) •? Pl e a se let us know what you ' d like . ----O rigina l Mess a ge-- -From: Bre tt_ M._ Kavanau gh@ who. e op.gov !ma ilto:Brett _ M._ Kavanaugh@who. eo p.go v] Se nt: Satu rday, March 09, 2002 3:26 PM To: Whe lan, M Edwa rd Ill Cc: Timothy _ E._ Fla nigan@who. eo p.go v Subje ct: Burton Ed: As we ha d dis cussed pre viou s ly, we think it would be app ropriat e for OLC to pre pa re a VERSIGHT Document ID: 0.7.18648.6332 18-1620-C-000135 - memoran dum that (b) (5) This is obviously not urge nt. Thanks . VERSIGHT Document ID: 0.7.18648.6332 18-1620-C-000136 18-1620-C-000137 Document ID: 0.7.18648.6332?000001 Colborn, Paul P From: Sent: To: Cc: Subject: Colborn, Paul P Wednesday, March 13, 2002 12:33 PM Comstock, Barbara Thorsen, Carl; 'Brett_M._Kavanaugh@who.eop.gov'; Whelan, M Edward III Press inquiry on Burton matter Barbara, fyi, I have received a voice mail message from Vanessa Blum at Legal Times (b) (6) ), asking me to talk to her, on or off the record, about the resolution of the Burton matter and the background of the dispute. She said she is working on a Thursday afternoon deadline. I do not plan to return the call, and if she calls again, I'll just refer the call to Public Affairs. -- Paul VERSIGHT Document ID: 0.7.18648.6333 18-1620-C-000138 Colborn, Paul P From: Sent: Colborn, Paul P To: ' Brett_M._Kavanaugh@who.eop .gov' Ce: Subject: Whelan , M Edward Ill Attachments: ridge tes timony.paragra ph.wpd Wednesd ay, March 20, 2002 1:34 PM RE:IMPORTANTre ta lking pts on having Gov. Ridge tes tify Brett, how's th e attached look? Ed, I'm send ing this now because I promised to ge t this t o Brett before lunch, an d I've just learned you've gone to lunch. Thus, you've not seen th is latest draft . Please let us know when you ge t back if you wou ld sugges t any chan ges . ----Or igina l Message-- -From: Brett_M._Kavanau gh@who.eop .gov [mailto:Brett_M._Kavanau gh@who.eop.go v] Sent: Wed nesda y, March 20, 2002 11:59 AM To: Colborn, Paul P Subject: RE: IMPORTANTre ta lking pts on having Gov. Ridge tes tify thank s; whene ver you have some thing, just e-ma il. I assume there is (i) (b) (5) -and (ii) (b) (5) (Embedded image moved "Colborn , Paul P" to file : 03/20 / 2002 11:22:40 AM pic29103.pcx) Record Type: Record To: Brett M. Kavanau gh/W HO/EOP@EOP cc: Vt=t1$IGHT Document ID: 0.7.18648.6339 18-1620-C-000139 Subject: RE: IMPORTANTre ta lking pts on having Gov. Ridge t es tify Yes , I'll turn to that right now. Should have so mething for you by noon. -- --Origina l Message-- -From: Brett_ M._ Kavana ugh@who.eo p.gov [ma ilto :Brett_M._Kavanau gh@who.eo p.gov] Sent: Wed nesd ay, Ma rch 20, 2002 11:11 AM To: Colborn, Pau l P Subject: IMPORTANTre ta lking pts on having Gov. Ridge tes tify Can you draft a pa ragra ph that acc omplishes the fo llowing : (b) (5) VERSIGHT Document ID: 0.7.18648.6339 18-1620-C-000140 Koffsky, Daniel L From: Sent: To: Cc: Subject: Brett: Koffsky, Daniel L Monday, April 15, 2002 12:58 PM 'Brett_M._Kavanaugh@who.eop.gov' Whelan, M Edward III Question About Leave You asked Ed abou (b) (5) - Some general principles: (b) (5) I'm not sure whether you're considering the issue only for the White House or also more generally for executive branch agencies. (b) (5) . (b) (5) Here a a few thoughts: - VERSIGHT Document ID: 0.7.18648.6340 18-1620-C-000141 I I Q) 3 18-1620-C-000142 Document ID: 01186486340 Whelan, M Edward III From: Sent: To: Cc: Subject: Whelan, M Edward III Wednesday, April 24, 2002 4:07 PM 'Kavanaugh, Brett' Colborn, Paul P T/c with Barbara Kahloe FYI: Barbara Kahloe (sp?) of Ose's staff called me. (That's what I get for answering my own phone.) As you indicated, she asked whether legislation that revoked EO2 that in turn had revoked EO1 would resurrect EO1. I told her that I was not authorized to provide advice to Congress, and she was fine with that. She also opined that the experience with federalism EOs -- where, apparently, EO3, by revoking EO2, resurrected EO1 -- supported her view that EO1 would be resurrected. ( (b) (5) r.) Barbara also said that Ose has a lot of problems with Horn's approach and thinks it would be cleaner to just revoke the Bush EO. She also thought the hearing disclosed a lot of problems with the Horn bill. VERSIGHT Document ID: 0.7.18648.6343 18-1620-C-000143 Colborn, Paul P From: Colborn, Paul P Sent: Wednesd ay, May 01, 2002 5:47 PM To: ' Brett_M._Kavanaugh@who.eop.gov '; Whelan, M Edwa rd Ill Subject: RE: Draft lett er to Horn re PRA execu tive privilege bill I'll tak e a crack at another paragraph or two tom orrow. ----Or igina l Message ----From: Brett_ M._ Kavanau gh@who.eop.gov [ma ilto:Brett_M._Kavanau gh@who.eop.go v] Sent: Wednesday, May 01, 2002 3:17 PM To: Whe lan, M Edwa rd Ill Cc: Colborn , Paul P Subject: RE: Draft le tt er to Horn re PRA exe cutive privilege bill my goa l wa s to see what it would look like in a draft and then do a side by side to compare and then (b) (5) {Embedded image moved "Whe lan , M Edward Ill" to file: 05/01/2002 03:01:08 PM pic08428.pcx ) Record Type: Record To: Brett M. Kavanaugh/W HO/ EOP@EOP cc: "Colborn, Paul P" {Rece ipt Notificat ion Requested ) {1PMReturn Requested) Subject: RE: Draft le tt er to Horn re PRA execu tive privilege bill Brett: VERSIGHT Document ID: 0.7.18648.6347 (b) (5) ---- 18-1620-C-000144 (b) (5) (b) (5) ---Or iginal Message ----From: Brett_ M._ Kavanaugh@who.eo p.gov [mailto:Brett_M._Kavanaugh@who.eo p.gov] Sent: Wed nesd ay, May 01, 2002 2:47 PM To: Colborn, Paul P Cc: Whelan, M Edwa rd Ill Subject: Re : Draft le tter to Horn re PRAexecut ive privilege bill Two immed iat e comments : First, I like it. Second, can you prepare an alternat ive draft that - (b) (5) ,? {Embedded image moved "Colborn, Paul P" to file : 05/0 1/ 2002 02 :20:22 PM pic27534.pcx) Record Type : Record To: Brett M. Kavanaug h/ WHO/ EOP@EOP cc: "Whelan, M Edward Ill" {Receipt Notificat ion Req ues ted ) {1PM Return Req ues ted ) Subject: Draft letter t o Horn re PRAexecutive privilege bill Brett: Here 's a draft that Ed an d I have prepa red . Comments? -- Paul cc: Ed VERSIGHT Document ID: 0.7.18648.6347 18-1620-C-000145 Colborn, Paul P From: Sent: Colborn, Paul P To: ' Brett_M._Kavanaugh@ who.eop.gov ' Ce: Subject: Whe lan , M Edwa rd Ill Attachments: pra.hornb ill.lett er.a It.wpd Frida y, May 03, 2002 10:42 AM RE: Draft lett er to Horn re PRA execu tive privilege bill Brett, attached is th e alterna tive draft you reques ted . ----Or igina l Message---From: Brett_M._Kavanaugh@who.eop.gov [ma ilto:Brett_M._Kavanau gh@who.eop.gov ] Sent: Wednesda , Ma 01, 2002 2:47 PM duplicate VERSIGHT Document ID: 0.7.18648.6346 18-1620-C-000146 duplicate 18-1620-C-000147 Document ID: 0.7.186486346 Whelan, M Edward Ill From: Whe lan, M Edwa rd Ill Sent: Monday , May 06, 2002 10:05 AM To: ' Brett_M._Kavan aug h@wh o.eop.go v' Ce: Colborn , Pau l P Subject: RE: Draft lett er to Horn re PRA execu tive privilege bill Brett: Please let us know which vers ion you prefer and any add itiona l changes that should be made. In light of Thursda y's markup and the need to run the lett er through the 0MB process , we probab ly ough t to finali ze our revie w as soon as poss ible. -- Ed ----Or igina l Message---From: Colborn , Pau l P Sent: Frida , Ma 03, 2002 10:42 AM duplicate VERSIGHT Document ID: 0.7.18648.6349 18-1620-C-000148 duplicate 18-1620-C-000149 Document ID: 01186486349 O'Brien, Pat From: O' Brien, Pat Sent: Monday, May 13, 2002 11:23 AM To: Bybee , Jay; Yoo, John C; Dinh, Viet; Brett Kavana ugh (E-mail}; Bradford A. Berenson (E-mail}; Kyle Sampson (E-mail}; Higbee , David; Ciongoli, Adam; Day, Lori Sharpe FW: Arab Lawyers Subject: Ed Hade n pa ssed thi s obse rvation along aft er spea king t o a group of Arab Lawyers . It may be helpful to those involved in th e judicial se lection an d public outreach process . ----Or igina l Mess a ge----From: Ed Hade n [ma ilto:Ed_Hade n@judiciary.se nat e.gov] Sent: Monday, May 13, 2002 11:15 AM To: O' Brien, Pat Subject: Arab Lawyers Pat: Please forward th is t o th e app ropriat e perso n. FYI On Friday, May 10, 2002, I gave a ta lk to app roximat ely 10 lawyers from the Arab count ries of Jordan , Tunisia, Kuwait, Yemen, Leban on, etc. The State Departm ent se t up a "Rule of Law" se mina r ser ies for these lawyers who were se lected by our embass ies over th ere as prominent cit izens. In any event, these lawyers were interes ted in only one thing: the oath that feder al judges take. "To whom t o th e judges tak e an oath? The Pres ide nt?" "Who administers the oath?" "Since th e Senat e can impeach a judge , are judges under the influence of the Senat e?" "Where is the oath administ ered ?" I informed th em that in America, judges tak e their oath to the Constitut ion, not t o the Pres ide nt. There is no "King's Bench " in America. Indeed , se vera l pres ide nts have lost important cases in th e feder al courts. Oath 's are usua lly administered by an other judge at the court house at which the ju dge will pres ide . Ed VERSIGHT Document ID: 0.7.18648.5033 18-1620-C-000150 Whelan, M Edward Ill From: Whelan, M Edward Ill Sent: Monday, May 13, 2002 2:24 PM To: ' Brett_M._Kavanaug h@who.eop.go v' Ce: Colborn, Pau l P Subject: RE:DRAFTletter to Shays One big ques tion and a few sma ller comments: (b) (5) 6th pa ra.: (a) order " s/b "Order" in 2 plac es ; (b) in las t line, add "and incumbent" after "former " 8th para.: In last sen tence change "curren t" to "incumbent" and "unilatera l" to "unreviewab le". Next -to-last para.: change "Act" to "PRA" ----Or igina l Message---From: Brett_M._Kavanau gh@who.eop.go v {mailto:Brett_M._Kavanaugh@ who.eop .gov] Sent: Monday, May 13, 2002 1:45 PM To: Colborn, Paul P Cc: Whe lan, M Edwa rd Ill Subject: DRAFTlett er to Shays We met with Congressman Shays on Frida y. He strongly indicated a des ire t o help, but wanted some assurance on time frames. See what you think of the attached , which borrows heav ily from first ha lf of draft DOJ views lett er, but adds a few point s. {See attach ed file : letter to sha ys 5 13 02.doc ) {Embedded image moved "Colborn, Paul P" to file: 05/13/2002 11:09:49 AM pic02820.pcx) VERSIGHT Document ID: 0.7.18648.6350 18-1620-C-000151 Record Type: Record To: "Whe lan, M Edward Ill" (Receipt Notificat ion Requested ) {1PMReturn Requested), Brett M. Kavanau gh/WHO/ EOP@EOP cc: Subject: RE: Horn b ill/comm itt ee jurisd iction Brett: Ed and I were just talkin g and wonder ing what' s happ en ing on clearan ce of our lett er. I'm check ing with OLA on this, but do you know anyth ing? Also , an y progress on whether the lett er will (b) (5) include ? As far as I know, markup is still this Thursda y. -----Origina l Message---From: Whe lan, M Edwa rd Ill Sent: Thursday , May 09, 2002 5:20 PM To: 'Kavanaugh , Brett ' Cc: Colborn, Paul P Subject: Horn bill/c,ommitt ee jurisd iction In response to your ques tion s : (b) (5) (b) (5) (b) (5) VERSIGHT Document ID: 0.7.18648.6350 18-1620-C-000152 18-1620-C-000153 Document ID: 01186486350 Whelan, M Edward Ill From: Whelan, M Edwa rd Ill Sent: Friday, May 17, 2002 5:40 PM To: ' Brett_ M._Kavanaug h@who.eo p.gov' Subject: RE: Hatch Act Coverage We had hoped t o hav e our thoug hts t o you this aft ernoo n, but it looks like it won't be until Monday. I ass ume from our discuss ion that that 's okay; if it's not, let me know. -- -Origina l Mess a ge-From: Brett_ M._ Kavanau gh@who. eo p.gov {ma ilto:Brett_M._ Kavanau gh@who.eo p.gov] Sent: Wed nesd ay, May 15, 2002 12:30 PM To: Koffs ky, Daniel L Cc: Whelan , M Edwa rd Ill Subject: Re : Hatch Act Coverage (b) (5) (Embedded ima ge moved "Koffs ky, Daniel L" to file : 02/20/200 2 04:08:46 PM pic30 945.pcx) Record Type: Record T ,.. , R.- ....++ ft A v ,....,,... ...,,..., ,,.. l,..,/\A/J,.J.1""1/C'(')O~ V Document ID: 0.7.18648.6353 I C'f""IO 18-1620-C-000154 I u : or~ lt IVI. l\i:IVc:l(li:IU g n/ vvn u / C.U r'~ C.Ur' cc: "Whelan , M Edward Ill" (Receipt Notificat ion Req ues t ed } {1PM Return Req ues ted } Subject: Hatch Act Coverage duplicate VERSIGHT Document ID: 0.7.18648.6353 18-1620-C-000155 duplicate 18-1620-C-000156 Document ID: 01186486353 duplicate 18-1620-C-000157 Document ID: 01186486353 18-1620-C-000158 Document ID: 01186486353 Brett_M._Kavanaugh@who.eop.gov Brett_ M._Kavanaugh@ who.eop.gov From: Sent: Monday , May 20, 2002 10:31 AM To: Whe lan, M Edward Ill; Colborn , Pau l P Subject: Amendment s attl.htm; H4187 _DOS.PDF; H4187 _006.PDF; H4187 _00 7.PDF; H4187 _008.PDF ; pic28150.pcx Attachments: ------ Forwarded by Brett M. Kavanaugh/W HO/EOP on 05/ 20/ 2002 10:31 AM ----- {Embedded image moved "Dhillon, Uttam " to file: 05/17 / 2002 03:55:47 PM pic28150.pcx ) Record Type: Record To: Brett M. Kavanaugh/W HO/ EOP@EOP cc: Subject: Amendments Brett, Attached are four amendments. They have been vetted and formatted by the House leg is lat ive Counse l so they are read y to go. All a Membe r needs to do to become the autho r of an amendment is to ca ll Hank Savage in the leg islat ive Counse l's Office and give Hank the ident ifying number that appears at the top ,of the each amendment. Hank's number is {202 ) 225-6060. let us know if we can be of any further ass istance. Uttam Dhillon Policy Director House Policy Committee 2471 Rayburn Building Wash ington , D.C. 20515 VEk~ltjH Document ID: 0.7.18648.6354 18-1620-C-000159 (202) 225-8605 http://policy.hou se .gov pVERSIGHT Document ID: 0.7.18648.6354 18-1620-C-000160 Brett , Attached are four amendments . They hav e been vetted and formatted by the House Legislative Counsel so they are ready to go. All a Me mber needs to do to become the author of an amendment is to call Hank Savage in the Legislative Counsel's Office and give Hank the identifying number that appears at the to p of the each amendment. Hank's number is (202) 225-6060. Let us know if we can be of any further assistance . Uttam Dhillon Policy Director House Polic y Committee 2471 Rayburn Building Washington, D.C. 20515 (202) 225-8605 http :// policy .house.gov VERSIGHT Document ID: 0.7.18648.6354-000001 18-1620-C-000161 F:\HAS\H4187.005 [Amendment #1] H.L.C. H.R. 4187 AMENDMENT OFFERED TO THE AMENDMENT BY IN THE NATURE OF A SUBSTITUTE Page 5, line 3, after the comma insert the following: ‘‘and, to the extent inconsistent with the amendments made by this Act, the regulations promulgated by the Archivist pursuant to section 2206 of title 44, United States Code,’’. Explanation of amendment: The purpose of the amendment is to ensure that the existing regulations under the Presidential Records Act, like the existing Executive Order, have no legal force or effect to the extent they are inconsistent with the Presidential Act Amendments of 2002. * * May 16, 2002 (2:14 PM) AMERICAN F:\V7\051602\051602.081 PVERSIGHT Document ID: 0.7.18648.6354-000002 18-1620-C-000162 F:\HAS\H4187.006 [Amendment #2] H.L.C. H.R. 4187 AMENDMENT OFFERED TO THE AMENDMENT BY IN THE NATURE OF A SUBSTITUTE Page 4, after line 20, insert the following: (3) Section 2206 of title 44, United States Code, is 1 2 amended 3 lowing: 4 for by inserting after the first sentence the fol- ‘‘The exclusion in section 553(a)(1) of such title military or foreign affairs functions of the United 5 States 6 from shall not be considered to prevent the Archivist promulgating regulations under this chapter con- 7 cerning the assertion of a constitutionally based privilege 8 against disclosure that is based on or relates to a military 9 or foreign affairs matter.’’. * * May 16, 2002 (2:18 PM) AMERICAN F:\V7\051602\051602.084 PVERSIGHT Document ID: 0.7.18648.6354-000003 18-1620-C-000163 F:\HAS\H4187.007 [Amendment #3] H.L.C. H.R. 4187 AMENDMENT OFFERED TO THE AMENDMENT BY IN THE NATURE OF A SUBSTITUTE Page 5, before line 1, insert the following: 1 SEC. . PROTECTION OF PERSONAL INFORMATION. (a) IN GENERAL.—Chapter 22 of title 44, United 2 3 States Code, is further amended by adding at the end the 4 following: 5 ‘‘§ 2209. Protection of personal information 6 ‘‘(a) Nothing in this chapter shall be considered to 7 require the release to the public of any sensitive personal 8 information concerning any individual who is not an offi- 9 cer or employee of the executive branch of the Govern- 10 ment. * * 11 ‘‘(b) The Archivist shall, by not later than 10 days 12 before releasing a record that the Archivist determines 13 may contain information referred to in subsection (a), pro- 14 vide to any such individual whose sensitive personal infor- 15 mation will be released the following information in writ- 16 ing: 17 18 May 16, 2002 (2:19 PM) AMERICAN F:\V7\051602\051602.085 PVERSIGHT Document ID: 0.7.18648.6354-000004 ‘‘(1) The date the record is expected to be released. 18-1620-C-000164 F:\HAS\H4187.007 [Amendment #3] H.L.C. 2 ‘‘(2) The name of each person to which the 1 record will be released. 2 ‘‘(3) The general nature of the sensitive per- 3 4 sonal information contained in the record. 5 ‘‘(c) Upon the request of such individual, or upon the 6 determination 7 any of the Archivist, the Archivist may redact sensitive personal information the Archivist considers 8 necessary 9 whose 10 regulations necessary to carry out this section. ‘‘(e) As used in this section, the term ‘sensitive per- 13 sonal 14 able information’ means non-public, personally identifiinformation regarding an individual that the indi- 15 vidual 16 vate, personal information is redacted. ‘‘(d) The Archivist shall promulgate under section 11 2206 12 to protect the civil liberties of the individual could reasonably be expected to seek to keep pri- including an indivdiual’s— * * 17 ‘‘(A) home address; 18 ‘‘(B) personal phone number; 19 ‘‘(C) personal medical information; 20 ‘‘(D) personal electronic mail address; 21 ‘‘(E) social security number; 22 ‘‘(F) personal financial information; and 23 ‘‘(G) tax returns and information derived 24 May 16, 2002 (2:19 PM) AMERICAN F:\V7\051602\051602.085 PVERSIGHT Document ID: 0.7.18648.6354-000004 therefrom.’’. 18-1620-C-000165 F:\HAS\H4187.007 [Amendment #3] H.L.C. 3 1 2 at (e) CLERICAL AMENDMENT.—The table of sections the beginning of chapter 22 of title 44, United States 3 Code, is further amended by adding at the end the fol- 4 lowing: ‘‘Sec. 2209. Protection of personal information.’’. * * May 16, 2002 (2:19 PM) AMERICAN F:\V7\051602\051602.085 PVERSIGHT Document ID: 0.7.18648.6354-000004 18-1620-C-000166 F:\HAS\H4187.008 [Amendment #4] H.L.C. H.R. 4187 AMENDMENT OFFERED TO THE AMENDMENT BY IN THE NATURE OF A SUBSTITUTE Page 3, after line 13, insert the following: 1 ‘‘(3) This section shall not be construed to require 2 the disclosure of any information that, in the judgment 3 of a former President or the incumbent President— 4 5 6 ‘‘(A) may compromise intelligence or counter-intelligence sources or methods; or ‘‘(B) may jeopardize the life of a witness or in- 7 formant, or of an officer, employee, or agent of the 8 United States. * * May 16, 2002 (2:20 PM) AMERICAN F:\V7\051602\051602.087 PVERSIGHT Document ID: 0.7.18648.6354-000005 18-1620-C-000167 18-1620-C-000168 Document ID: 0.7.18648.6354-000006 Whelan, M Edward III From: Sent: To: Cc: Subject: Whelan, M Edward III Monday, May 20, 2002 6:09 PM 'Kavanaugh, Brett' Koffsky, Daniel L Hatch Act Brett: Here's a quick sketch of our thinking on the issues you raised: 1. (b) (5) . 2. (b) (5) . To be clear: (b) (5) - Ed VERSIGHT Document ID: 0.7.18648.6357 18-1620-C-000169 Whelan, M Edward III From: Sent: To: Subject: Whelan, M Edward III Monday, June 03, 2002 2:52 PM Dinh, Viet; Bryant, Dan; Clement, Paul D; Willett, Don; Colborn, Paul P; 'Brett_M._Kavanaugh@who.eop.gov'; Goodling, Monica RE: Estrada letter. Looks fine to me. One very minor change that I'd propose is to change ". Also (b) (5) (b) (5) -----Original Message----From: Dinh, Viet Sent: Monday, June 03, 2002 2:07 PM To: Bryant, Dan; Clement, Paul D; Willett, Don; Whelan, M Edward III; Colborn, Paul P; 'Brett_M._Kavanaugh@who.eop.gov'; Goodling, Monica Subject: Estrada letter. As we discussed last Friday, enclosed please find a slightly revised letter from dan bryant to chairman leahy. We would like to get this out ASAP this afternoon. Please comment by 3:00 if possible. << File: Estrada response letter.wpd >> VERSIGHT Document ID: 0.7.18648.6356 18-1620-C-000170 Brett_M._Kavanaugh@who.eop.gov Brett_M._Kavanaugh@who.eop.gov From: Sent: Monday, June 10, 2002 3:17 PM To: Whe lan, M Edward Ill Ce: Koffsky, Daniel L Subject: RE: Grants and Travel Attachments: pic3026 1.pcx Thw ques t ion is for (b) (5) (Embedded image moved "Whelan , M Edwa rd Ill" to file : 06/10/2002 02:53:57 PM pic3026 1.pcx) Record Type : Record To: Brett M. Kavanaugh/W HO/EOP@EOP cc: "Koffsky, Daniel L" (Receipt Notificat ion Reques ted ) {1PM Return Req ue sted ) Subject: RE: Grants and Travel See (2) be low for our admitt ed ly noncomm itta l advice from three months ag o. Dan is looking aga in at th is . ----Or igina l Message- From: Koffsky, Dani el L Sent: Frida y, March 08, 2002 8:57 AM To: ' Brett_M._Kavanaugh@who.eop.gov ' Cc: Whe lan , M Edward Ill Subject: Grants and Travel Brett: Ed pa ssed on your que stions about VERSIGHT Document ID: 0.7.18648.6358 (b) (5) We think we can an swer the first ques tion. On the 18-1620-C-000171 se cond, we want to give you some provisiona l thoughts, which may give you some ideas about how we can reso lve the iss ue. (b) (5) (b) (5) I'll fax you th e memorandum on gran t announcements and the two memoranda on trav el costs. Then maybe you, Ed, and I can talk about next steps. VERSIGHT Document ID: 0.7.18648.6358 18-1620-C-000172 18-1620-C-000173 Document ID: 0.7.18648.6358?000001 O'Brien, Pat From: Sent: To: Cc: Subject: O'Brien, Pat Tuesday, June 11, 2002 1:36 PM Yoo, John C; Bryant, Dan; Bybee, Jay; Brett Kavanaugh (E-mail); Bradford A. Berenson (E-mail) Bryant, Dan briefing on the Padilla case Senate Judiciary has requested a briefing on the decision to certify Padilla/ Abdullah al Mujahir as an "enemy combatant." (b) (5) through how we could accomodate such briefing requests re Padilla? thoughts. Thanks, Pat . Could you begin to think Please emial me back with your Pat O'Brien Deputy Assistant Attorney General Office of Legislative Affairs U.S. Dept. of Justice phone (202) 616-6186 fax (202) 514-9149 Pat.O'Brien@usdoj.gov VERSIGHT Document ID: 0.7.18648.5062 18-1620-C-000174 Dinh, Viet From: Sent: To: Cc: Subject: Dinh, Viet Friday, September 06, 2002 9:09 AM Bybee, Jay; Collins, Dan; Clement, Paul D; 'Kavanaugh, Brett' Stephens, Jay B; Keisler, Peter D VRA (Ugh) Possible Solution (Hurray) I do not want to jinx it, but I think we may have a happy solution for all on the 180 days issue. Senators Kyl and Feinstein have to confer (yesterday was not a good day for across-the-isle outreach) on a way I proposed to accomodate the Department's view. If not, I have a revised draft letter that synthesizes both Jay Bybee's and Dan Collins' views. Thanks for your patience. VERSIGHT Document ID: 0.7.18648.5178 18-1620-C-000175 Whelan, M Edward III Whelan, M Edward III Monday, September 30, 2002 6:02 PM 'Kavanaugh, Brett' FW: Judge-Determined Punitive Damages From: Sent: To: Subject: Per message below, we have a clear answer to your first question: (b) (5) . I understood from your message that this was the question you were most interested in. On your secondary question l (b) (5) -- we don't have a clear answer yet, though we share your suspicion tha . We'll try to make more progress on this. (b) (5) FYI. -----Original Message----From: Gannon, Curtis Sent: Monday, September 30, 2002 5:23 PM To: Whelan, M Edward III Judge-Determined Punitive Damages Subject: Ed, (b) (5) . - , the Court said the following: III (b) (5) VERSIGHT Document ID: 0.7.18648.6372 18-1620-C-000176 18-1620-C-000177 Document ID: 01186486372 (bold emphases added). 18-1620-C-000178 Document ID: 01186486372 Whelan, M Edward III From: Sent: To: Subject: Whelan, M Edward III Wednesday, October 02, 2002 3:32 PM 'Kavanaugh, Brett' pending matters Just wanted to doublecheck on two matters that are rather in limbo now. In particular, I want to make sure that we are on the same wavelength as to what we are (or, more precisely, are not) currently doing. 1. (b) (5) 2. (b) (5) ) We are awaiting further word from you on whether to do more on this. VERSIGHT Document ID: 0.7.18648.6374 18-1620-C-000179 Whelan, M Edward III From: Sent: To: Subject: Whelan, M Edward III Thursday, October 03, 2002 1:39 PM 'Kavanaugh, Brett' FW: Mens rea short of intent For what it's worth: -----Original Message----From: Gannon, Curtis Sent: Thursday, October 03, 2002 1:01 PM To: Whelan, M Edward III RE: Mens rea short of intent Subject: I agree with all three of those things. (b) (5) . -----Original Message----From: Whelan, M Edward III Thursday, October 03, 2002 12:30 PM Sent: To: Gannon, Curtis Subject: RE: Mens rea short of intent Please tell me whether I have this right: 1. (b) (5) . 2. . (b) (5) 3. (b) (5) . -----Original Message----From: Gannon, Curtis Sent: Thursday, October 03, 2002 11:31 AM To: 'Brett_M._Kavanaugh@who.eop.gov' Cc: Whelan, M Edward III Subject: Mens rea short of intent Brett, Ed passed along to me your questio (b) (5) . After conducting a quick canvass of case law and secondary sources, and discussing this with Ed (b) (5) VERSIGHT Document ID: 0.7.18648.6393 18-1620-C-000180 (b) (5) an . Please let me know if we may provide further assistance on this point. Curtis Gannon 514-4089 18-1620-C-000181 Document ID: 0.7.18648.6393 Gannon, Curtis From: Sent: To: Cc: Subject: Gannon, Curtis Friday, October 04, 2002 12:03 PM 'Brett_M._Kavanaugh@who.eop.gov' Whelan, M Edward III s (b) (5) Brett, (b) (5) C. "). VERSIGHT Document ID: 0.7.18648.6383 18-1620-C-000182 . (b) (5) Curtis E. Gannon Attorney-Adviser Office of Legal Counsel U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530 (202) 514-4089 -----Original Message----From: Brett_M. _Kavanaugh@who. eop. gov [ mailto: Brett_M. _Kavanaugh@who. eop. gov] Sent: Friday, October 04, 2002 8: 53 AM To: Gannon, Curtis; Whelan, M Edward III Subj ect: New rush question Can you compose a list (need not be exhaustive) of . This is for Thanks. (b) (5) (b) (5) Need whatever you can get by about noon. . 18-1620-C-000183 Document ID: 0.7.18648.6383 Whelan, M Edward III From: Sent: To: Subject: Attachments: Whelan, M Edward III Tuesday, October 08, 2002 2:57 PM 'Kavanaugh, Brett' RE: punitive damages punitives.wpd Please use attached version instead. (It contains very minor citechecking corrections.) -----Original Message----From: Whelan, M Edward III Tuesday, October 08, 2002 2:37 PM Sent: To: 'Kavanaugh, Brett' Subject: punitive damages Attached is a one-pager of points to advocate. << File: punitives.wpd >> your purposes. VERSIGHT Document ID: 0.7.18648.6385 Let me know if this serves 18-1620-C-000184 Whelan, M Edward III From: Sent: To: Subject: Whelan, M Edward III Thursday, October 10, 2002 9:54 AM 'Kavanaugh, Brett' s (b) (5) You asked about the basic principles: (b) (5) 1. . Here are (b) (5) . 2. 3. (b) (5) (b) (5) I hope this answers your questions. VERSIGHT Document ID: 0.7.18648.6384 18-1620-C-000185 Whelan , M Edward Ill From: Whelan, M Edward Ill Sent: Friday, October 11, 2002 9:35 AM To: ' Brett_M._Kavanaug h@who.eo p.gov' Ce: Gann on, Curtis Subject: RE: terrorism insuranc e ques tion (b) (5) - I'll focus more on H.R. 32 10 an d let you know if my views chan ge , but I thought you'd want this t en tat ive read. -- -Origina l Message- From: Whelan , M E•dward Ill Sent: Thursda y, Octo ber 10, 2002 1:27 PM To: ' Brett_M._Kavanaugh@who.eo p.gov' Subject: RE: terroris m insuranc e ques tion (b) (5) -- - Origina l Mess a ge--- From: Brett_ M._ Kavanaug h@who.eo p.gov [mailto:Brett_M._Kavanau gh@who.eo p.gov) Sent: Thursd ay, Octo ber 10, 2002 12:41 PM To: Whelan, M Edward Ill Subject: Re : terroris m insuran ce ques tion (b) (5) little more quickly. VERSIGHT Document ID: 0.7.18648.6391 18-1620-C-000186 {Embedded ima ge moved "Whelan , M Edward Ill" to file : 10/ 10/ 2002 10:21:08 AM pic14240.pcx) Record Type: Record To: Brett M. Kavanaugh/W HO/ EOP@EOP cc: "Gann on, Curtis." {Receipt Notificat ion Req ues ted ) {1PM Return Req ues ted ) Subject: terro rism in sur ance ques tion I don't mean to provide an overly ha sty an swer t o your ques tion, but as I unders tan d that you may be in th e process of nego tiating furth er changes to the leg islative langua ge , you might be interes ted in the following obse rvat ion: (b) (5) VERSIGHT Document ID: 0.7.18648.6391 18-1620-C-000187 Gannon, Curtis From: Sent: To: Cc: Subject: Gannon, Curtis Friday, October 11, 2002 9:52 AM 'Brett_M._Kavanaugh@who.eop.gov' Whelan, M Edward III s Laws (b) (5) Brett, Ed passed along to me your question abou . . (b) (5) . . . - t r - " . . . . . . . As always, please let us know if we may provide further assistance Curtis E. Gannon Attorney-Adviser Office of Legal Counsel U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530 (202) 514-4089 VERSIGHT Document ID: 0.7.18648.6392 18-1620-C-000188 Brett_M._Kavanaugh@who.eop.gov Brett_M._ Kavanau gh@ who.eop.go v From: Sent: Sunday , October 13, 2002 3:26 PM To: Gannon , Curtis Ce: Whe lan , M Edwa rd Ill Subject: (b) (5) Re: Laws ATTACHMENT.TXT; pic lS0SS.pcx Attachments: Thank you very much Curtis. All very he lpful. As you can tell from Post story Sat on th e negot iat ions , this issue is in play. Thanks. {Embedded image moved "Gannon , Curtis" to file: 10/ 11/ 2002 09:52:09 AM piclS0SS.pcx) Record Type: Record To: Bre tt M. Kavanau gh/WH O/EOP@EOP duplicate 18-1620-C-000189 Document ID: 0.7.18648.6394 duplicate 18-1620-C-000190 Document ID: 0.7.18648.6394-000001 18-1620-C-000191 Document ID: 0.7.18648.6394-000002 Gannon, Curtis From: Sent: To: Cc: Subject: Gannon, Curtis Wednesday, October 16, 2002 9:25 PM 'Brett_M._Kavanaugh@who.eop.gov' Whelan, M Edward III R s Laws (b) (5) Brett, In general, all of your examples are true. If you scroll down to your original email below, you will see my brief, interlineated annotations confirming the law in each state you listed. (b) (5) .. . Curtis E. Gannon VERSIGHT Document ID: 0.7.18648.6396 18-1620-C-000192 Attorney-Adviser Office of Legal Counsel U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530 (202) 514-4089 -----Original Message----From: Brett_M._Kavanaugh@who.eop.gov [mailto:Brett_M._Kavanaugh@who.eop.gov] Sent: Wednesday, October 16, 2002 12:24 PM To: Gannon, Curtis Subject: Another . . . We need to confirm this for a Presidential announcement/decision. information? (b) (5) Anyway you could backstop this e: 18-1620-C-000193 Document ID: 0.7.18648.6396 A A (II 18-1620-C-000194 Document ID: 0.7.186486396 Whelan, M Edward III From: Sent: To: Whelan, M Edward III Thursday, October 17, 2002 1:50 PM 'Kavanaugh, Brett' Here's a hasty first draft. I'm going to try to think of some case cites for window-dressing. welcome your comments. I (b) (5) - VERSIGHT Document ID: 0.7.18648.6397 18-1620-C-000195 U.S. Department of Justice Office of Legal Counsel Washington, D.C. 20530 September 14, 2018 Gabe Roth Executive Director Fix the Court gabe@fixthecourt.com Re: FOIA Tracking No. FY17-207; Fix the Court v. DOJ, D.D.C. No. 18-cv-1620 Dear Mr. Roth: This letter partially responds to your May 8, 2017 Freedom of Information Act (“FOIA”) request to the Office of Legal Counsel (“OLC”) seeking, as narrowed, “[a]ll correspondence sent by the Assistant Attorney General in charge of the Office of Legal Counsel and his or her primary deputy to Brett M. Kavanaugh and all correspondence sent by Brett M. Kavanaugh to the Assistant Attorney General in charge of the Office of Legal Counsel and his or her primary deputy from January 20, 2001, to May 30, 2006,” including carbon copied communications. As you know, the request is also the subject of the above-captioned litigation. Since the last partial response, we have processed 382 pages of responsive records. We have enclosed 93 pages with redactions and withheld the remaining 289 pages in full. Our redactions are based on FOIA Exemption Five, 5 U.S.C. § 552(b)(5), or FOIA Exemption Six, 5 U.S.C. § 552(b)(6). The full withholdings are based on Exemption Five. For your information, Exemption Five exempts material protected by the attorney-client, deliberative process, and presidential communications privileges, as well as the attorney work product doctrine and other privileges. Exemption Six exempts material the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. We have determined that none of the withheld material is appropriate for discretionary release. We are continuing to process responsive records. For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. § 552(c). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist. Your counsel may contact Danielle Wolfson Young of the Civil Division, Federal Programs Branch, at 202-616-2035 or at danielle.young2@usdoj.gov, to discuss any aspect of your request. Additionally, you may contact the Office of Government Information Services (“OGIS”) at the National Archives and Records Administration to inquire about the FOIA VERSIGHT mediation services they offer. The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration, Room 2510, 8601 Adelphi Road, College Park, Maryland 20740-6001, e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769. Although your request is the subject of ongoing litigation, and administrative appeals are not ordinarily acted upon in such situations, I am required by statute and regulation to inform you of your right to file an administrative appeal. You may administratively appeal by writing to the Director, Office oflnformation Policy ("OIP"), United States Department of Justice, Suite 11050, 1425 New York Avenue, NW, Washington, DC 20530-0001, or you may submit an appeal through OIP's FOIAonline portal by creating an account on the following web site: https://foiaonline .regulations.gov/foia/action/public/home. Your appeal must be postmarked or electronically transmitted within 90 days of the date of my response to your request. If you submit your appeal by mail, both the letter and the envelope should be clearly marked "Freedom of Information Act Appeal." Sincerely, /V/~ Paul P. Colborn Special Counsel Enclosures cc: Danielle Wolfson Young, Trial Attorney Civil Division, Federal Programs Branch Elizabeth France, Counsel American Oversight 2 AMERICAN PVERSIGHT William_K. Kelley@who.eop.gov From: William_K._ Kelley@who.eo p.gov Sent: Thursday, December 22, 2005 5:49 PM To: Bradbury, Steve; Brett_M._Kavanaugh@who.eo p.gov Attachments: tmp.htm; NS~.f (b) (5) Attach ed is th e fina l of the se nd back a pdf? Tlhanks. VERSIGHT Document ID: 0.7.18648.5952 (b) (5) ina l.doc ta lker for OOJ to finalize an d distribute. Steve , can you 18-1620-D-000001 18-1620-D-000002 Document ID: 0.7.18648.5952-000002 Bradbury, Steve Bradbury, Steve From: Sent: Thursday, December 22, 2005 6:41 PM To : 'William_K._ Kelley@who.eo p.gov' Ce: ' Brett_M._Kavana ugh@who.eo p.gov' Subject: PDF of- (b) (5) ta lkers NS,_ (b) (5) final.pdf Attachments: Bill: As you reques t ed , PDF of the final- (b) (5) VERSIGHT Document ID: 0.7.18648.5956 ta lkers. Steve 18-1620-D-000003 Harriet_Miers@w lno.eop.gov From: Sent: Harriet_Miers @who.eo p.gov To: Bradbury, Steve; Brett_ M._ Kavanau gh@who .eop.gov; William_ K._ Kelley@who.eo p.gov Subject: Re: New art icle Saturda y, Decem ber 24, 2005 9 :15 AM Have seen it. -- -O rigina l Mess a ge--- From: Steve.Bradbury@usdoj.gov To: Miers , Harriet ; Kavanau gh, Brett M. ; Kelley, William K. Sent: Sat Dec 24 08 :33 :42 2005 Subject: New art icle There 's a ne w art icle by Rise n and Lichtblau in t oday's NYT. VERSIGHT Document ID: 0.7.18648.5957 18-1620-D-000004 William_K. Kelley@who.eop.gov From: William_K._ Kelley@who .eo p.gov Sent: Friday, Jan uary 06, 2006 6:15 PM To: Bradbury, Steve; Elwood , John; Harriet_ Miers @who.eo p.gov; David_S._Addingt on @ovp.eo p.gov; Brett_ M._ Kavanaugh@who.eo p. gov Subject: RE:.(b) (5) Talkers .doc (b) (5) (b) (5) (b) (5) . Finally, th e last se ntence is a run-on, which should b e se pa rat ed into two se ntences . -- - Origina l Message-- - From : Miers , Harrie t Sent: Frida y, January 06, 2006 5:48 PM To: 'Steve.Brad bury@usdo j.gov'; Kelley, William K.; Addingt on, David S.; Kavanau gh, Brett M. Subject : RE:-(b) (5) Ta lkers .doc (b) (5) - --Orig inal Message-- -From : Steve.Bradbury@usdoj.gov [ma ilto :Steve.Bradbury@usdo j.gov] Sent: Frida y, Janua ry 06, 2006 5:18 PM To: Kelley, William K.; Addington , David S.; Kavanau gh, Brett M.; Kyle.Sampso n@usd oj.gov; Courtn ey.Elwood@usdoj.gov; Mitnick, John M.; Miers , Harriet Cc: John. Elwood@u sdoj.gov; William.M os chella@usdo j.gov; Brian .Roe hrkasse @usdo j .gov Subject: .(b) (5) Talkers .doc (b) (5) As promised , here a re so me talkers res ponding t o :. I am also copying DOJ's Offices of Leg Affairs an d Pub lic Affairs. They will coord inat e with you an d WH Communications before sha ring outside . I'm runn ing now to a mee ting at th e Sit Room . Thx. VERSIGHT Document ID: 0.7.18648.5258 18-1620-D-000005 18-1620-D-000006 Document ID: 01186485258 Bradbury, Steve From: Bradbury, Steve Sent: Saturday , January 07, 2006 8:45 AM To: 'Harriet_M iers@who.eop.gov '; 'Katie_lev inson@ who.eop.gov '; 'Dana _M._Perino @who.eop.gov '; ' Brett_M._Kavanaugh@who.eop.gov '; 'John_M._Mitn ick@who.eo p.gov' Subject: Re:-(b) (5) Talkers .doc (b) (5) ----Or igina l Message---- From: Bradbury, Steve To: 'Harriet_M iers@ who.eop.gov ' ; 'Katie_lev inson@ who.eop.gov ' ; 'Dana_M._Perino@who.eop.gov ' ; ' Brett_ M._ Kavanaugh@who.eop.gov ' ; 'John_M._Mitn ick@who.eop.gov ' Sent: Sat Jan 07 08:38:30 2006 Subject: Re:-(b) (5) Ta lkers.doc (b) (5) ----Or igina l Mes sage ---From: Harriet_M iers@ who.eop.gov To: Bradbury, Steve ; Katie_lev inson@ who.eop.gov ; Dana_M._ Perino@who.eop.gov ; Brett_M._Kavanaugh@ who.eop.gov ; John_M._Mitnick@who.eop.gov Sent: Sat Jan 07 08:34:13 2006 Subject: RE:.(b) (5) Ta lkers.doc (b) (5) ----Or igina l Message ---From: Levinson, Katie Sent: Saturday , January 07, 2006 8:29 AM To: Perino, Dana M .; Miers , Harriet; Kavanaugh, Brett M.; 'Steve.Bradbury@u.sdoj.gov '; Mitnick, John M. Subject: Re:-(b) (5) Ta lkers.doc (b) (5) VERSIGHT Document ID: 0.7.18648.6014 18-1620-D-000007 -- --Origina l Mess a ge---From: Perino, Dana M. To: Miers , Harriet ; Kavanaugh, Brett M. ; 'Steve.Bradbury@usdoj.gov' ; Mitnick, John M. CC: Levinson, Katie Sent: Sat Jan 07 07 :53:42 2006 Subject: Re :-(b) (5) Talkers .doc (b) (5) -- -O rigina l Messa ge--- From: Miers , Harrie t To: Kavanaugh, Brett M. ; 'Steve.Bradbury@u.sdoj.gov' ; Mitnick, John M. CC: Perino, Dana M. Sent: Sat Jan 07 07:47:11 2006 Subject: RE:-(b) (5) Ta lkers .doc (b) (5) ---O rigina l Message-- From: Kavanaugh, Brett M. Sent: Saturday, January 07, 2006 7:40 AM To: 'Steve.Bradbury@usdoj.gov'; Mitnick, John M.; Miers , Harriet Subject: RE:.(b) (5) Ta lkers .doc Am I right in ass uming (b) (5) ? ---O rigina l Message-- From: Steve .Bradbury@usdoj.gov [mailto:Steve.Bradbury@usdoj.gov) Sent: Frida y, January 06, 2006 8:44 PM To: Mitnick, John M.; Miers , Harriet; Kavanaugh, Brett M. Subject: .(b) (5) Talkers .doc Attached are revised ta lkers that incorporat e WHC comments. John Elwood ea rlier se nt a copy of these revised ta lkers to Bill Kelley. Thx. <-(b) (5) Talking Point s .doc» VERSIGHT Document ID: 0.7.18648.6014 18-1620-D-000008 Bradbury, Steve From: Bradbury, Steve Sent: Saturday , January 07, 2006 9:13 AM To: 'Katie_Levinson@who.eop.gov '; 'Dana_M._ Perino@who.eop.gov '; 'Harriet_M iers @who.eop.gov '; ' Brett_M._Kavanaugh@who.eop.gov '; 'John_M._Mitn ick@who.eo p.gov' Cc: 'Debbie_S._Fidde lke@who.eop.gov '; Mosche lla, William; Scolinos, Tas ia; Roehrkasse , Brian Subject: Re:.(b) (5) Talkers.doc Copying Will Moschella, Tas ia Scolinos, and Tasia's Deputy Brian Roehrkasse on this message for contact purposes. They can also be reached at any time through the Justice Command Cente r at 5145000. Thx ---Or igina l Message --From: Katie_Levinson@ who.eop.gov To: Bradbury, Steve ; Dana_M._Perino@who.eop.gov ; Harriet_M iers@ who.eop.gov ; Brett_M._Kavanaugh@ who.eop.gov ; John_M._Mitnick@who.eop.gov CC: Debbie_S._Fiddlelke@who.eop.gov Sent: Sat Jan 07 09:01:19 2006 Subject: Re:-(b) (5) Ta lkers.doc (b) (5) Deb - can your shop hand le? I only have member cell phones with me on bbe rry ----Or igina l Message ----From: Perino, Dana M. To: Miers , Harriet ; Levinson, Katie ; Kavanaugh, Brett M.; 'Steve.Bradbury@usdoj.gov ' ; Mitnick, John M.< John_M._Mitnick@who.eop.gov> Sent: Sat Jan 07 08:59:14 2006 Subject: Re:.(b) (5) Ta lkers.doc I can he lp coordinate with doj - katie, do you hapen to have contact info for the ir staff? ----Or igina l Message ---From: Miers , Harriet To: Levinson , Katie ; Perino, Dana M. ; Kavanaugh, Brett M.; 'Steve.Bradbury@u sdoj.gov ' ; Mitnick, John M. Sent: Sat Jan 07 08:34:13 2006 v ._, v1'-,AHT Document ID: 0.7.18648.6017 18-1620-D-000009 duplicate 18-1620-D-000010 Document ID: 0.7.18648.6017 18-1620-D-000011 Document ID: 0.7.18648.6017 Katie_levinson@who.eop.gov From: Katie_Levinson@who.eop.gov Sent: Saturday , January 07, 2006 10:38 AM To: Bradbury, Steve ; Debbie_S._Fidde lke@who.eop.gov; John _M._Mitnick@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov; Harriet_M iers@ who.eop.gov ; Dana_M._Perino@who.eop.gov Cc: Mosche lla, William ; Scolinos, Tas ia; Roehrkasse , Brian ; Jam ie_E._Brown@ who.eop.gov Subject : Re:.(b) (5) Talkers.doc Can you ca ll me? 494-4745 ---Or igina l Message --From: Fidde lke, Debb ie S. To: 'Steve.Bradbury@usdoj.gov ' ; Mitnick, John M. ; Kavanaugh , Brett M.; Miers , Harriet ; Perino, Dana M.; Levinson , Katie CC: 'William.Mo sche lla@usdoj.gov ' ; 'Tasia.Scolinos@usdoj.gov ' ; ' Brian.Roeh rkasse @usdoj.gov ' ; Brown, Jam ie E. Sent: Sat Jan 07 10:36:54 2006 Subject: Re:-(b) (5) Talkers .doc (b) (5) ---Or igina l Mes sage-- From: Steve.Bradbury@usdoj.gov To: Mitnick, John M. ; Kavanaugh , Brett M. ; Miers , Harriet ; Per ino, Dana M. ; Levinson , Katie CC: William.Mosche lla@u sdo j.gov ; Tasia.Scolinos@usdo j .gov ; Brian.Roehrkasse@usdoj.gov ; Fidde lke, Debbie S. Sent: Sat Jan 07 09:12:17 2006 duplicate VERSIGHT Document ID: 0.7.18648.6024 18-1620-D-000012 duplicate 18-1620-D-000013 Document ID: 01186486024 duplicate 18-1620-D-000014 Document ID: 01186486024 Bradbury, Steve From: Sent: Bradbury, Steve Saturda y, January 07, 2006 10:38 AM To: 'Harriet_Miers @who.eo p.gov'; ' Brett_M._Kavanaugh@who.eo p.gov'; 'John_M._M itnick@who.eo p.gov'; Elwood, John; Moschella, William; Scolinos, Tas ia; Roe hrkasse , Brian Cc: 'Katie_ Levinson@who.eo p.gov'; 'Dana_ M._Perino@who.eo p.gov'; 'Debbie_ S._ Fid de lke @who.eo p.gov'; Eise nberg, John Subject: Fw:-(b) (5) ta lkers Attachments: tmp.ht m;-(b) (5) Talking Points.doc Here are the same ta lkers with two typos corre cted . -- -O rigina l Mess a ge--- From: (b)(6) Steve Bradbury (personal) (b)(6) Steve Bradbury (personal) To: Bradbury, Steve Sent: Sat Jan 07 10:25:13 2006 Subject: -(b) (5) ta lkers VERSIGHT Document ID: 0.7.18648.5292 18-1620-D-000015 18-1620-D-000016 Document ID: 0.7.18648.5292-000002 Debbie_S._Fiddelke@who.eop.gov From: Sent: Debbie_S._Fidde lke@who.eop.gov To: Bradbury, Steve; Katie_Levinson@who.eop.gov; Harriet_M iers@ who.eop.gov; Dana_M._Perino@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov; John_M._ Mitnick@who.eop.gov Cc: Michae l_Allen@nsc.eop.gov Subject: Re:.(b) (5) Talkers.doc Saturday , January 07, 2006 10:41 AM Yes, sorry thought th is was Alito related. Michae l and I will hand le. ----Or igina l Message ---From: Levinson , Katie To: Miers , Harriet ; Perino, Dana M.; Kavanaugh, Brett M.; 'Steve.Bradbury@usdoj.gov ' ; Mitnick, John M.< John_M._Mitnick@who.eop.gov> CC: Allen , Michae l ; Fidde lke, Debbie S. Sent: Sat Jan 07 10:36:15 2006 Subject: Re:-(b) (5) Talkers.doc Was just on another ema il cha in with Dan. Can WH leg affa irs take lead in gett ing ta lkers to staff? Copying Michae l Allen and Deb. ----Or igina l Message ---From: Miers , Harriet To: Perino, Dana M.; Levinson , Katie ; Kavanaugh, Brett M. ; 'Steve.Bradbury@usdoj.gov ' ; Mitnick, John M.< John_M._Mitnick@who.eop.gov> Sent: Sat Jan 07 09:22:22 2006 Subject: RE:-(b) (5) Talkers.doc Dan was th inking (b) (5) ---Or igina l Mes sage-From: Perino, Dana M. Sent: Saturda , Janua 07, 2006 8:59 AM duplicate VERSIGHT Document ID: 0.7.18648.6038 18-1620-D-000017 duplicate 18-1620-D-000018 Document ID: 01186486038 duplicate 18-1620-D-000019 Document ID: 01186486038 Harriet _ Miers@w lno.eop.gov From: Harriet_ Miers @who.eo p.gov Sent: Saturda y, January 07, 2006 12:40 PM To: Bradbury, Steve; Katie_ Levinso n@who .eo p.gov; Micha el_ Allen@nsc. eo p.gov; Dan a_ M._Perino @who.eo p.gov; Brett_ M._ Kavanau gh@who.eo p.gov; John_M._Mitnick@who.eo p.gov Cc: Debbie_ S._Fidde lke@who.eo p.gov; Matth ew_ Kirk@who.eo p.gov Subject: RE:-(b) (5) Talkers .doc Yes , I am in favor (b) (5) -- --Origina l Mess a ge---From: Levinso n, Kat ie Sent: Satu rday, January 07, 2006 12:39 PM To: Allen, Michae l; Miers , Harriet; Perino, Dana M.; Kavana ugh, Brett M.; 'Steve .Bradbury@usdoj.gov'; Mitnick, John M. Cc: Fidde lke, Debbie S.; Kirk, Matth ew Subject: Re :-(b) (5) Ta lkers .doc Dan's rec is yes , buit he de fers to Harriet. ----Or igina l Mess a ge----From: Allen, Micha e l To: Levinso n, Katie ; Miers , Harriet ; Perino, Dana M. ; Kavanaugh, Brett M. ; 'Steve.Bradbury@usd oj.gov' ; Mitnick, John M. CC: Fidde lke, Debbie S. ; Kirk, Matth ew Sent: Sat Jan 07 12 :27 :04 2006 Subject: Re:.(b) (5) Ta lkers .doc (b) (5) - --Origina l Mess a ge ---From: Levinson, Kat ie To: Miers , Harriet ; Perino, Dana M. ; Kavanau gh, Brett M. ; 'Steve.Bradbury@usdoj.gov' ; Mitnick, John M. -·. ' .. VERSIGH Document ID: 0.7.18648.6052 ... ' ' . ,.. 18-1620-D-000020 CC: Alle n, Michae l -; Fidde lke , Debb ie S. Sent: Sat Jan 07 10:36 :15 2006 duplicate OV~RSIGHT Document ID: 0.7.18648.6052 18-1620-D-000021 duplicate 18-1620-D-000022 Document ID: 01186486052 duplicate 18-1620-D-000023 Document ID: 01186486052 Harriet_ Miers@w lno.eop.gov From: Sent: Harriet_ Miers @who.eo p.gov To: Bradbury, Steve; Matth ew_ Kirk@who .eo p.gov; Katie_Levinso n@who .eo p.gov; Micha el_Allen@nsc.eo p.gov; Dan a_ M._ Perino @who.eo p.gov; Brett_ M._Kavanaugh@who.eo p.gov; John_ M._ Mitnick@who.eo p.gov Cc: Debbie_ S._ Fidde lke@who.eo p.gov Subject: RE:-(b) (5) Talkers .doc Saturda y, January 07, 2006 12:41 PM And I defe r to others as t o the bes t way but I would make sure the info ge ts to him. -- --Origina l Mess a ge---From: Kirk, Matth ew Sent: Satu rday, January 07, 2006 12:40 PM To: Levinso n, Katie; Allen, Michae l; Miers , Harriet; Perino, Dana M.; Kavanau gh, Brett M.; 'Steve .Bradbury@usdoj.gov'; Mitnick, John M. Cc: Fidde lke, Debbie S. Subject: RE:-(b) (5) Ta lkers .doc (b) (5) Matt -- --Origina l Message ---- duplicate VERSIGHT Document ID: 0.7.18648.6054 18-1620-D-000024 duplicate 18-1620-D-000025 Document ID: 01186486054 duplicate 18-1620-D-000026 Document ID: 01186486054 duplicate 18-1620-D-000027 Document ID: 01186486054 Bradbury, Steve Bradbury, Steve Tuesday, January 10, 2006 5:39 PM 'Harriet_Miers@who.eop.gov'; William_K._Kelley@who.eop.gov; David_S._Addington@ovp.eop.gov; 'John_M._Mitnick@who.eop.gov'; 'John_B._Wiegmann@nsc.eop.gov' Cc: 'Brett_M._Kavanaugh@who.eop.gov'; 'Brett_C._Gerry@who.eop.gov' White Paper re NSA activities Subject: Attachments: Surveillance Authorities_1_10 (1).doc From: Sent: To: Attached is a current, revised draft of our white paper addressing more fully the legal basis for the NSA activities described by the President. We would like to finalize this white paper by the beginning of next week. Your comments are welcome. VERSIGHT Document ID: 0.7.18648.6059 18-1620-D-000028 Bradbury, Steve From: Sent: To: Bradbury, Steve Thursday, January 12, 2006 5:22 PM 'Harriet_Miers@who.eop.gov'; David_S._Addington@ovp.eop.gov; William_K._Kelley@who.eop.gov; 'John_M._Mitnick@who.eop.gov'; 'John_B._Wiegmann@nsc.eop.gov' Cc: 'Brett_C._Gerry@who.eop.gov'; 'Brett_M._Kavanaugh@who.eop.gov' Draft white paper re NSA activities described by the President Subject: Attachments: Surveillance Authorities_1_12_pm.doc Attached is the current, revised draft of the white paper addressing the legal authorities supporting the NSA activities described by the President. Our intent is to finalize this paper by 1/16 for possible distribution by the AG early next week. Your comments are most welcome. Thx. VERSIGHT Document ID: 0.7.18648.6065 18-1620-D-000029 Gorsuch , Neil M From: Gors uch, Neil M Sent: Monday, Jan uary 16, 2006 11 :58 AM To: ' Brett_ C._Ger ry@who.eo p.gov'; Mos chella, William; Scolinos , Tasia; Mcca llum, Robert {SMO};Sampson, Kyle; Roehrkasse , Brian ; Harriet_ Miers @who.eo p.gov Ce: Elwood, John; Oavid_S._ Addington@ ovp.eop.gov; Brett_M._Kavana ugh@who.eo p.gov Subject: RE: USAToday updat e (b) (5) -- -Origina l Mess a ge-From: Brett_ C._Ger ry@who.eo p.gov Ima ilto :Brett_ C._Gerry@who.eo p.gov] Sent: Monday, Jan uary 16, 2006 11:50 AM To : Mos chella, William; Scolinos, Tasia; Mcca llum, Robert {SMO};Gorsuch, Neil M; Samp.son, Kyle; Roehrkasse , Brian; Harriet_Miers @who.eo p.gov Cc: Elwood, John; David_S._Addingt on@ovp.eop .gov; Brett_ M._Kavanau gh@who .eo p.gov Subject: Re : USA Tod ay updat e (b) (5) ----Or igina l Mess a ge----From: Miers , Harrie t To: 'Neil.Gorsuch@ usdo j.gov' ; Robert.McCallum@usdoj.gov ; Kyle.Sampson@u sdoj.gov ; William.Mo schella@ usdo j.gov ; Tasia.Scolinos @usdoj.go v ; Brian.Roe hrkasse @usdoj.gov CC: John.Elwood@u sdoj.gov ; Addington, David S. ; Gerry, Brett C. ; Kavanau gh, Brett M. Sent: Mon Jan 16 11 :30:43 2006 Subject: RE: USA Tod ay updat e I hat e to add to the• work here , but I asked Steve Hadley to review the dra ft an d his doing so reminded me why we have sta ffing requ ireme nts . He ha d three comme nts that we need to conside r, an d th rough his commen ts point ed out the need for ge neral staffi ng. So I am copying Brett Kavanaugh to make sure VERSIGH Document ID: 0.7.18648.5322 18-1620-D-000030 he is aware ot the de velopment ot th is op ed . Steve's th ree th oughts were : (b) (5) - (b) (5) I think Brett G an d Brett Kan d I ass ume oth ers have the specifics on this ana lysis . (b) (5) -- -Origina l Mess a ge-From: Neil.Gorsuch@ usdoj.gov {mailto:Neil.Gorsuch@usdoj.gov) Sent: Monday, Jan uary 16, 2006 11:08 AM To: Neil.Gorsuch@u sdoj.gov; Robert.McCallum@usdoj.gov; Kyle .Sampson@usdoj.gov; William.Moschella@u sdoj.gov; Tasia .Scolinos@usdoj.gov; Brian.Roe hrkasse @usdo j.gov Cc: John.Elwood@usdoj.gov; Addington, David S.; Miers , Harriet; Gerry, Brett C. Subject: RE: USA Tod ay updat e Brett Gerry ha d an excellent suggestion for the penultimat e pa rag raph that both strength ens its mess age and reduc es words {by 4). The sugges ted revision is att ached for your considerat ion. -- --Origina l Mess a ge---From: Gorsuch, Neil M Sent: Monday, Jan uary 16, 2006 10:27 AM To: Mcca llum, Robe rt {SMO); Sampson, Kyle; Moschella, William; Scolinos, Tasia; Roe hrka sse , Brian Cc: 'Harriet_Miers @who.eo p.gov'; ' Brett_C._Gerry@who.eo p.gov'; 'Oavid_S._ Addington@ovp.eo p.gov'; Elwood, John Subject: RE: USA Tod ay updat e I must say that it' s mighty tough to find any fat in John's excellent work. I have mana ged in the (b) (5) attach ed to eke some to get a vers ion down to 377 words an d pa ss it along for the group's considerat ion. It also see ks to incorporat e Harriet' s sugges tions. (b) (5) vers ion to 350 should be very easy, but it would be nice if we could- (b) (5) {Getting ). NMG a- : -- -Origina l Mess a ge ---From: Mcca llum, Robert {SMO) Sent: Monday, Jan ua ry 16, 2006 8:57 AM To: Gorsuch, Neil M; Sampson, Kyle; Moschella, William; Scolinos, Tasia; Roe hrkasse , Brian Cc: 'Harriet_ Miers @who.eo p.gov'; ' Brett_C._Gerry@who.eo p.gov'; 'Oavid_S._ Addington@ ovp.eo p.gov'; Elwood, John Subject: FW: USATod ay updat e Copying Neil, Kyle, Tasia, Brian an d Will with th ese ed its . Robt. VERSIGHT Document ID: 0.7.18648.5322 18-1620-D-000031 ---Or igina l Message---From: Harriet_Mier:s@who.eop.go v {mailto:Harriet_Miers@ who.eop.gov ] Sent: Monday, January 16, 2006 7:38 AM To: Mcca llum, Robert (SMO); Elwood, John Cc: David_S._Addington@ovp.eop.gov ; Brett_ C._Gerry@who.eop.gov Subject: RE:USA Toda y update I have three genera l comments to the drafts which are very good. First, (b) (5) (b) (5) (b) (5) ----Or igina l Message---- From: Robert.McCallum@usdoj.gov [mailto:Robert.McCallum@usdoj.gov ] Sent: Sunday, January 15, 2006 10:24 PM To: John.Elwood@usdoj.go v; Neil.Gorsuch@usdoj.gov ; Kyle.Sampson@usdo j.gov; Gerry, Brett C.; Addington, David S.; William.Moschella@usdoj.gov ; Perino, Dana M.; Miers , Harriet Cc: Tasia.Scolinos@usdoj.gov; Brian.Roehrkasse@usdoj.gov Subject: RE:USA Toda y update As per prior ema il t o various folks, I will be in th e office tomorrow am and can be reached by ema il, by direct dial at 514-7-850, or through th e DOJ command center. I will be reviewing the draft and be back in touch tomorrow am. Robt. > ----Or igina l Message---- > From: Elwood, John > Sent: Sunday, January 15, 2006 10:20 PM > To: ' (Harriet_ Miers@ who.eop.go v)'; Mcca llum, Robert (SMO); Gorsuch, > Neil M; Sampson, Kyle; ' Brett_C._Gerry@who.eop.gov '; > 'David_S._Addington@ovp.eop.gov '; 'Dana_M._Perino@who.eop.gov '; > Mosche lla, William > Cc: Scolinos, Tasia; Roehrkasse , Brian > Subject: USA Today update > (b) (5) I have gotten the (b) (5) > down to the current ta rget (350 words ). > > I've gotten the- (b) (5) •vers ion of the op-ed down to 403 words. > We're checking to see whether USAToda y will ext end the word count in > view of the number and comp lexity of issues. If not, I'll find > another 53 words that don't need to be sa id. > (b) (5) > I've attached cop ies of the • op-eds to this > e-ma il. In case you're read ing thi s on blackberry , I've cut and > pasted the- (b) (5) • vers ion into the body of the e-ma il be low. This ti I Document ID: 0.7.18648.5322 • ., 18-1620-D-000032 > incorpora tes all commen ts I've rece ived so tar. > >Thanks ! « File : USA Today op-ed {v2.8) - (b) (5) ) .doc»« > USAToda y op-ed {v2.8) - (b) (5) ).doc» File : > > DRAFTOP-ED==== > (b) (5) VERSIGHT Document ID: 0.7.18648.5322 18-1620-D-000033 18-1620-D-000034 Document ID: 01186485322 Scolinos, Tasia From: Scolinos , Tas ia Sent: Monday , January 16, 2006 12:07 PM To: Gorsuch , Neil M; 'Harr iet_M iers@who.eop.gov ' ; Mosche lla, William; Mcca llum , Robert {SMO}; Sampson , Kyle; Roehrkasse , Brian Ce: Elwood , John; 'David_S._ Addington@ovp.eop.gov ' ; ' Brett_ C._Ger ry@who.eop.gov ' ; ' Brett_ M._Kavanaugh@ who.eop.gov ' Subject: Re: USA Today update That is correct. We have directed reporters to them on th is issue in the past and they are on the record with very strong statements support ing our interpretat ion. Sent from my BlackBe rry Wire less Handhe ld ----Or igina l Message---From: Gorsuch , Neil M To: 'Harr iet_M iers@who.eop.gov ' ; Mosche lla , William ; Scolinos , Tas ia ; Mcca llum , Robert (SMO} ; Sampson , Kyle ; Roehrkas se , Brian CC: Elwood, John ; David_S._Add ington@ovp.eop.gov ; Brett_ C._ Gerry@ who.eop.gov ; Brett_ M._ Kavanaugh@who.eop.gov Sent: Mon Jan 16 11:39:31 2006 Subject: RE: USA Today update On #3 , both Sen. Kyl and Graham are on record pub licly stat ing that the ir leg islat ion affects law s uit s "retroact ive ly." Will and Tas ia may be ab le to add more. duplicate VERSIGHT Document ID: 0.7.18648.5325 18-1620-D-000035 duplicate 18-1620-D-000036 Document ID: 01186485325 duplicate 18-1620-D-000037 Document ID: 01186485325 duplicate 18-1620-D-000038 Document ID: 01186485325 duplicate 18-1620-D-000039 Document ID: 01186485325 Roehrkasse, Brian From: Roehrkasse , Brian Sent: Monday , January 16, 2006 1:21 PM To: Gorsuch , Neil M; Mcca llum, Robert {SMO); Elwood , John; Scolinos , Tas ia; ' Brett_ C._Ger ry@who.eop.gov '; Mosche lla, William ; 'Harr iet_M iers@who.eop.gov '; 'David_S._Addington@ovp.eop.gov '; Sampson , Kyle; ' Brett_M._Kavanaugh@who.eop.gov ' Subject: Re: USA Today update USA Today has dec ided to kill another element on the ir ed itoria l page and will now grant us 430-440 words. This will als-o give us a litt le more time. Please circulate a fina l draft by no later 3:30. Sent from my BlackBerry Wireless Handhe ld ---Or ig ina l Message--From: Gorsuch , Neil M To: Mcca llum, Robert {SMO) ; Elwood , John ; Scolinos , Tas ia ; ' Brett_ C._Ger ry@who.eop.gov ' ; Roehrkasse , Brian ; Mosche lla, William ; 'Harr iet_M iers@who.eop.gov ' ; 'David_S._Addington@ovp. eop.gov ' ; Sampson, Kyle ; ' Brett_M._Kavanaugh@who.eop.gov ' Sent: Mon Jan 16 12:40:30 2006 Subject: RE: USA Today update Will make sure the se get in (not only do they clarify, they he lp reduce word count ). John Elwood and Tas ia Scolinos will pu ll the trigger here at DoJ after we get everyone 's sign off at WH. ----Or igina l Message ---From: Mcca llum, Robert {SMO) Sent: Monda y, January 16, 2006 12:34 PM To: Gorsuch , Neil M; Elwood , John; Scolinos, Tas ia; ' Brett_C._Gerry@who.eop.gov '; Roehrkasse , Brian; Mosche lla, William; 'Harr iet_M iers@ who.eop.gov '; 'David_S._Addington@ovp.eop.gov '; Sampson , Kyle; ' Brett_ M._ Kavanaugh@ who.eop.gov ' Subject: RE: USA Today update I like the revised draft. I have three suggested ed its as follows: (b) (5) VERSIGHT Document ID: 0.7.18648.5357 18-1620-D-000040 (b) (5) Obvious ly, none are critical to my signing it. Who will pull th e trigger on it in final? Robt. ----Or igina l Message---From: Gorsuch, Neil M Sent: Monda y, January 16, 2006 12 :09 PM To: Elwood, John; Mccallum, Robert {SMO); Scolinos, Tasia; Brett_C._Gerry@who.eo p.gov; Roe hrkasse , Brian; Mccallum, Robert {SMO); Mosc hella, William; Harriet_ Miers @who.eop .gov; Oavid_S._Addington@ovp.eop.go v; Sampson, Kyle ; Brett_M._Kavanaug h@who.eo p.gov Subject: FW: USA Toda y upda te At Brett and Harriet 's sugges tion, full vers ion of a sugges ted draft , including Brett Gerry's great sugges tion, follows in bb-friend ly format below. It is 379 words . Per Brian R. of our press office, USA Today informs that it will "work with us" on words beyond the 350 limit it previous ly se t, but the pap er indicat es that the sooner it ha s the documen t th e more likely it will be ab le to work with us as other art icles will come in later. Brian R. recomme nds ge ttin g a final to him by 2-ish. NMG (b) (5) V '-1 Vl'-AI I I Document ID: 0.7.18648.5357 18-1620-D-000041 (b) (5) ---Or igina l Message-- - From: Mcca llum, Robert {SMO} Sent: Monda y, January 16, 2006 10:43 AM To: Gorsuch, Neil M Subject: RE:USA Toda y update (b) (5) Robt. ---Or igina l Message-- -From: Gorsuch, Neil M Sent: Monda y, January 16, 2006 10:41 AM To: Mcca llum, Robert {SMO} Subject: RE: USA Today upda te (b) (5) ---O rigina l Message-- From: Mcca llum, Robert {SMO} Sent: Monda y, Janu ary 16, 2006 10:24 AM To: Scolinos , Tasia; Elwood, John; 'Harriet_Miers @who.eop.go v' Cc: ' Brett_C._Gerry@who.eop.gov '; 'Oavid_S._Addington@ovp.eop.gov '; Gorsuch, Neil M; Sampson, Kyle; Mosche lla, William; Roehr kasse , Brian Subject: RE:USA Toda y update Gentleperso ns : I hav e made various ed its below for your considera tion, trying t o incorporate Harriet's (b) (5) commen ts, cut some words , etc. No pride of authorsh ip precludes rejection of these ed its, other sugges tions, etc. I am in the office for the da y an d can be reach ed by phone or email. Robt. (b) (5) VERSIGH Document ID: 0.7.18648.5357 18-1620-D-000042 (b) (5) - ----Or igina l Message---- From: Mcca llum, Robert {SMO) Sent : Monda y, January 16, 2006 8:57 AM duplicate VERSIGHT Document ID: 0.7.18648.5357 18-1620-D-000043 duplicate 18-1620-D-000044 Document ID: 01186485357 duplicate 18-1620-D-000045 Document ID: 01186485357 McCallum, Robert (SMO) From: Sent: To: Cc: Subject: McCallum, Robert (SMO) Monday, January 16, 2006 2:06 PM Gorsuch, Neil M; 'Brett_M._Kavanaugh@who.eop.gov'; 'Harriet_Miers@who.eop.gov'; 'Brett_C._Gerry@who.eop.gov'; Sampson, Kyle; Elwood, Courtney; Scolinos, Tasia; Roehrkasse, Brian; Moschella, William Elwood, John RE: LATEST version of USA Today I like it and have no additional edits. Great work. Robt. _____________________________________________ From: Gorsuch, Neil M Monday, January 16, 2006 2:01 PM Sent: To: 'Brett_M._Kavanaugh@who.eop.gov'; 'Harriet_Miers@who.eop.gov'; 'Brett_C._Gerry@who.eop.gov'; Sampson, Kyle; Elwood, Courtney; McCallum, Robert (SMO); Scolinos, Tasia; Roehrkasse, Brian; Moschella, William Cc: Elwood, John Subject: LATEST version of USA Today Given that we now have 430 words to work with, John Elwood and I have sought to restore a few choice (b) (5) passages from earlier drafts you've seen (eg ) without creating anything substantively "new." This version is at 429 words and is both attached and printed below for bb. Please let us know if there are any final changes as soon as possible. We need to get this to Brian by 3:30. << File: USA Today op-ed == ( (b) (5) t) NMG 2.doc >> (b) (5) ck. VERSIGHT Document ID: 0.7.18648.5368 18-1620-D-000046 0' 01 18-1620-D-000047 Document ID: 01186485368 Elwood, John From: Elwood , John Se nt: Monday, Ja nua ry 16, 2006 3 :56 PM To: ' Brett_ M._Kavanaug h@who.eop .gov'; Gorsuch, Neil M Subje ct: RE: cutt ing 10 words ... Not yet. ----Or iginal Message ----From : Brett_ M._ Kavanau gh@who.eo p.gov [ma ilto :Brett_M._ Kavanau gh@who.eo p.gov) Sent: Monda y, January 16, 2006 3:53 PM To: Gorsuch, Neil M; Elwood, John Subject: RE: cutt ing 10 words ... Have you heard fro m her? - --Orig inal Message ---From : Neil.Gorsuch@u sdoj.gov {ma ilto :Neil.Gorsuch@u sdoj.gov) Sent: Monda y, January 16, 2006 3:34 PM To: John. Elwood@u sdoj.gov; Kavanau gh, Brett M. Subject: Re : cutt ing 10 words ... Thanks, Brett. -- -Origina l Message --From : Brett_ M._ Kavanau gh@who.eo p.gov To: Gorsuch, Neil M ; Elwood, John Sent: Mon Jan 16 15:29 :53 2006 Subject: RE: cutt ing 10 words ... Checking now with HM. ---Or iginal Mess a ge---From : John. Elwood @u sdoj.gov [ma ilto :John.Elwood @usdoj.gov) Sent: Monday, Janua ry 16, 2006 3:16 PM To: Neil.Gorsuch@usdoj.gov; Kavan au gh, Brett M. Subject: RE: cutt ing 10 words ... Brett: We're supposed t o ge t this to DOJ's Office of Public Affairs by 3 :30 . Let me know if you or Harriet have any fina l comme nts. Thank you. n ..:,..:......1 r..J1,... ,..,..,..,..,.. vlU Document ID: 0.7.18648.5390 I 18-1620-D-000048 ---ur 1g H 1c111v,~~~c1g~---- From : Brett_ M._Kavanaugh@ who.eop.gov [ma ilto:Brett _M._Kavanau gh@who.eo p.gov) Sent: Monda y, January 16, 2006 2:43 PM To: Gorsuc h, Neil M Cc: Scolinos , Tasia; Elwood, John Subject: RE: cutting 10 words ... Waitin g to ge t fina l word from Harriet. Thank s. ----Or igina l Message----From : Neil.Gorsuc h@u sdoj.gov {ma ilto :Neil.Gorsuch@u sdoj.gov) Sent: Monda y, January 16, 2006 2:13 PM To:Kavanau gh,B re ttM. Cc: John.Elwood@U1 sdoj.gov; Tasia.Sco linos@usdoj.gov Subject: RE: cutt ing 10 words ... Brett, With Robert's ok we are (hopefu lly} finished on this end. We will wait to hear from you, however, before giving Tasia 's shop the all clear. Thank s ! NMG VERSIGHT Document ID: 0.7.18648.5390 18-1620-D-000049 Gorsuch, Neil M From: Gorsuch , Neil M Se nt: Monda y, January 16, 2006 3:57 PM To: ' Brett_M._ Kavanaug h @who.eop.go v'; Elwood , John Subje ct: Re: cutti ng 10 words ... Thanks for he lping push this across the finish line. ---Or igina l Message --From: Brett_M._ Kavanaugh@ who.eop.gov To: Gorsuch , Neil M ; Elwood, John Sent : Mon Jan 16 15:54:14 2006 Subjec t : RE: cutti ng 10 words ... Good to go per Harr iet. ----Or igina l Message ----From: Neil.Gorsuc h @usdoj.gov [ma ilto:Ne il.Gorsuch@usdo j.gov] Sent : Monda Janua 16 2006 3:34 PM duplicate VERSIGHT Document ID: 0.7.18648.5392 18-1620-D-000050 duplicate 18-1620-D-000051 Document ID: 01186485392 Elwood, John From: Elwood , John Se nt: Monday, Ja nua ry 16, 2006 4 :01 PM To: ' Brett_ M._Kavanaug h@who.eop .gov'; Gorsuch, Neil M Subje ct: RE: cutt ing 10 words ... Will do. ----Or iginal Message ----From : Brett_ M._ Kavanau gh@who.eo p.gov [ma ilto :Brett_ M._ Kavanau gh@who.eo p.gov) Sent: Monda y, January 16, 2006 3:58 PM To: Gorsuch, Neil M; Elwood , John; Brett_ M._ Kavanau gh@who.eo p.gov Subject: RE: cutt ing 10 words ... (b) (5) -- -Origina l Message -From: Kavanau gh, Brett M. Sent: Monda y, Janu ary 16, 2006 3:54 PM duplicate VERSIGHT Document ID: 0.7.18648.5394 18-1620-D-000052 duplicate 18-1620-D-000053 Document ID: 01186485394 Elwood, John From: Elwood, John Se nt: Monday, Jan uary 16, 2006 4 :03 PM To: ' Brett_M._Kavanaug h@who.eop .gov'; Gorsuch, Neil M Subje ct: RE: cutt ing 10 words ... (b) (5) -- -Origina l Mess a ge-From : Brett_ M._ Kavanau gh@who. eo p.gov (ma ilto:Brett_ M._ Kavana ugh@who.eo p.gov] Sent: Monda y, Jan uary 16, 2006 3:58 PM duplicate VERSIGHT Document ID: 0.7.18648.5400 18-1620-D-000054 duplicate 18-1620-D-000055 Document ID: 0.7.18648.5400 18-1620-D-000056 Document ID: 011864861 03-000001 18-1620-D-000057 Document ID: 011864861 03-000002 18-1620-D-000058 Document ID: 0.7.18648.6103-000003 18-1620-D-000059 Document ID: 0.7.18648.6103-000004 18-1620-D-000060 Document ID: 0.7.18648.6103-000005 THE NEWREPUBLIC omms 18-1620-D-000061 Document ID: 011864861 03-000006 Searching for the perfect mix. VE=F{SIGH r Document ID: 0.7.18648.6103-000007 18-1620-D-000062 --- dc- hnm?s, I?t?t?i] Uf??t? hu?dinga, puhlu: and [Ental apartm??tsi E??lhl??i tn th? ld??l 18-1620-D-000063 ent ID: 011864861 03-00000? By pro 1 v1 IC pit· 1 o er at just the r · \] OVERSIGHT Document ID: 0.7.18648.6103-000007 ht mix 18-1620-D-000064 The more than 3,000 member companies of the Mortgage Banker s Association invest in America's communities. VE=F{SIGH r Document ID: 0.7.18648.6103-000007 18-1620-D-000065 --- fyi l!!!JTh; Ne,v Reput:licOriine WHAT IF WIRETAPP I NG WORKS? Wire Trap by Richard A. Posner Post date: 01.26 .06 Issue date: 02 .06 .06 he revelationby The New York Times that the NationalSecurityAgency (.NSA) is I comucting a secret program of electronicsu-vefilanceoutsi!e the famework of the Foreign Intelligence - SurveillanceAct (fisa) has sparked a hot debate in 1hepress and in the blogosphere. But there is somethingodd about the debate: It is. aridlylegal. Ci,il hbertarianscontendthat the program is illegal,even uoconstitutional;some want President Bushimpeached for breakingthe law. The administrationand its defenders have respomed that the program is.perfectly legal;ifit does violate fisa(the administrationdeniesthat it does), then, to 1hatextent,the law is mconstirutionalThis legal debate is complex,even esoteric.But, apart 6:oma handfulofnot very impressiveanecdotes (did the N SA pro gram really prev-entthe Brooklyn Bridge fom being destroyed by blowt arches?), there has been little discussionof the program's concrete vahie as a cowterterrorismmeasi.re or of the inroads it has or has not made on hberty or privacy. Not only are these questions more importantto most people than thelegal questions;they are fundamentalto those questions.Lawyers who are busily debatinglegalitywithoutfirsttrying to assess the consequences of the program have put the cart bei>re the horse. Lawin the United States is not a Platonicabstraction bur a fex.ibletool of social policy.In analyzingallbut the simplestlegal questions, one is wellad\ised to beginby asking what socialpolicies are at stake. Suppose theNSA program is ,-italto the nation's defense, and its impingementson coo hberties are slight.That would not prov-etheprograms legality,because not every good thingis.legal;law and policy are not perfectly aligned.But a con\ictionthat the program had great merit wow:!shape and hone the legal inquiry.We wow:! search harder for gromds to aflinn itslegality,and, if otr search were to £iii,at least we would know how to changethe law--or how to changethe program to make it comply withthe law-without destroyingits effectiveness. Similarly,if the programs contr1bt1tion to national securitywere negligible--aswe learn, also fromthe Times, that some FBI persomel are indiscreetlywhis.pering - -and it is mderminingour coo hberties, thiswould push the legal analysisin the opposite direction Ronald Dworkin,the distin,,auished legal philosopherand constitutionaltheorist, wrote in The N ew York Review of Books in the aftermathof1he September 11 attacks that "we cannot allowour Constitutionand our shared sense of decency to become a suicile pact" He wow:!doubtlessha,-e said the same thingabout fisa.If you approach legal is.suesin that spiritrather thanin the spiritof niat caelum fiat iusticia Oetthe heav-ensfull so long as justice is done), youwillwant to know how close to suicidea particularlegalinterpretation,vil!bring you before you decide whetherto embrace it. The legal critics of the surveillanceprogramhave not done this, and the defendersha,-e for the most part been contentto play on the critics'turf VERSIGHT Document ID: 0.7.18648.6103-000008 18-1620-D-000066 ashington,D.C., ,mich happens to be the home of The New ReJ"'blic, could be destroy-ed ~ b y an atomicbomb the size ofa suitcase. Portions of the city could be rendered wimhabitable,pethaps for decades, merely b y the explosion ofa convenlionalbomb that had been coated with radioactive material. The smallpoxvirus--bioen~eered to make it even more toxic and the vaccine againstit ineffecrual,then aerosolized and sprayed in a major airport-could killmillionsof people. Otr terrorist enemieshave the willto do such things. They may soon have the means .as well. Access to weapons of mass destructionis becomingever easier. Withthe September 11 attacks now more than fotr years in the past, forgetfulnessand complacency are the order ofthe day. Are we safer today, or do we just feel safer'?The terrorist leaders, scattered by our invasionof Afghanistanand b y otr stepped-up efforts at counterterrorism(includingthe NSA program), may even now be regroupingand preparing an attack that will produce destru:tion on a scale to dwarf September 11. Osama bin Laden's latest audiotape claims1hatAl Qaeda is planningnew attacks ,on the United States. the United States but The next terrorist attack (ifthere is one) willlikelybe mounted, as the last one was, from ,'lilllin orcrestrated by leaders safely ensconced abroad. So suppose the NSA learns the phone number ofa suspected terrorist in a foreigncountry. If the NSA just wants to listento his callsto others abroad, fisadoesn't require a warrant. Butit does if either (a) one party to the callis in the United States and the interceptiontakes place here or (b) the party on the U.S . side of the conversationis a 'U .S person' --primarilyeither a citizenor a permanent resident. If both parties are in the United States, no warrant can be issued; interceprionis prohibited. The problem with fisa is that, in order to get a warrant, the governmentmust have grounds to believe the "U.S. person" it wishes to monitor is .a foreignspy or a terrorist Even if a person is here on a sttrlent ortou-istvisa or on no visa, the govenment can't get a warrant to fin:! out whether he is a terrorist; it must aread y have a reason to believe he is one. As fu as an outsider can tell, the NSA program is designedto ill these gaps by conductingwarrantless interceptionsof communic.ationsin whi:h one party is in the United States (whether or not he is a 'U. S. person") and the other party is abroad and suspected of being a terrorist. Bttt there may be more to the program. Oix:e a phone number in the United States was discovered to have been calledby a terrorist suspect abroad, the NSA wouldprobably want to comuct a computer search of all internationalcalls to and fromthat local rumber for suspicious patterns or content A computer search does not inv-ad!e privacy or violate fisa, because a c.omputerprogram is not a sentientbeing. But, if the program picked out a conversationthat seemed likely to have intelligencevalue and an intelligeix:eofficerwarmedto scrutinizeit, re wouk! come up against fisa's limitations.One can imaginean even broader surv-eillance program, ii whichall electroniccomnrunicationswere scanned b y computers for suspiciousmessages that would then be scrutinizedby an intelligeix:eofficer,but, again,he would be operatingoutside the framework created by fisa. The benefits of such programs are easy to see. A1worst, they mightcause terrorists to abandon or greatly cu-tailtheir use of telephone, e-mail, and other means of communicatingelectronically ,vithpeople in the l Jnited States. That would be a boon to us. because it is fur more difficultfor terrorist leaders to orchestrate an attack when communicatingby courier.At best, ou- enemies mightcontirue communicatingelectronicallyin the mistakenbelief that, through use of code words or electronic encry-ption,they could thwart the NSA. So the problem ,vithfisa is that the su-veillanceit authorizesis umsable to discover who is a terrorist, as distinctfrom eavesdroppingon known terrorists--yet the i>rrneris the more urgent task. Even to conduct lisa-compliantsurv-eillance of non-U.S. persons, you have to know beforehand whether they are agents of a terrorist group, when what you really ,vant to know is who those agents are. Fisa's limitalionsare borrowed from law enforcement.When crines are committed,there are usually suspects, and electronicsurveillaix:ecan be used to nail them. In counterterroristintelligeix:e , you don't know whom to suspect--you need su-veilance to find ottt. The recent leaks from withinthe FBI, expressingskepticismabout the N SA program, reftect the FBI's conti:nuinginability to internalizeintelligencevalues. Cri:ninalinvestigationsare narro,'1y focused and usually fuitJul.Intelligenceis a search for the needle in the haystack. FBI agents don't like being asked to chase down clues gleaned fromthe N SA's interceptions, because 99 out of! 00 (maybe even a higherpercentage) ttrn out to lead no,mere. The agents thinkthere are better uses of theirtime. Maybe so. But maybe we smply don't hav-eenough VERSltjH I Document ID: 0.7.18648.6103-000008 18-1620-D-000067 intenigeoceofficersworking on domesticthreats. ha,-e no way of knowinghow successfultheNSA program has been onwl be. though, in general, intelligeocesuccesses are mderreported , while intelligeoce~es are nilly reported. What seems clear is that fisadoes not provide an adequate Jramework for comterterrorist intelligence.The statute was enacted in 1978, when apocal)'-pticterrorists scramblingto obtain weapons of mass des1ructionwere not on thehorizon. From a national seclrity stampoint, the statute might as well have been enacted in 1878 to regulate the interceptionof telegrams. In the words of General l\,fichael Hayden, director of NS A on September 11 and now the principaldeputy director of nationalintelligence,the NSA program is designed to "detect am prevent," whereas "nsa was built forlong-term coverage againstknown agents ofan enemy power." In theinmediate aferrnath of the September 11 attacks. Hayden, on his own nitiative, expamed electronic sUl'v-eillance by NSA without seeking fisawarrants. TheUnited States had been invaded. There was fearof follow-up attacks by terrorists who mightalready be in the comtry. Hayden's initiativ-ewas withinhis militaryauthority. But, ifa provisionof 6.sathat allows electronic surveillancewithout a warrant for up to 15 days f>llowinga declarationof war is taken literally (and I am not opiningon whether it should or shouldn'tbe; I am not ofi,ring any legal opinions) , Hayden was supposed That was the date on whichCongress promwgated to wait at least until September 14 to begin warrantless surv-eillance. the Authorizationfor Use of MilitaryForce. ,vbichthe administrationconsiders a declarationof war against Al Qaeda. Yet the need for such surv-eillance was at its most acute on September 11. And, ifa war is raginginside the United States on the sixteenthday after an invasionbegins and it is a matter o fmilitarynecessity to contime w arrantless interceptionsof enemy communicationswith people in the United States, would anyone thinkthe 15-da yrule prohibitive? We must not ignore the costs to bberty am privacy of interceptingphone calls and other electroniccomrtD.llli:ations. No one wants strangers eavesdropping on his personal con,-ersations.And wiretappingprograms have been abused in the past But, sincethe prirx:ipalfearmost people have of eavesdroppingis what the governmentmight d.o withthe information.maybe we can have our cake am eat it, too: Permit su-veilance interned to detect and pre,-ent terrorist acti-lity but flatlyforbid the use of informationgleaned by such surveillancefor anyp wpose other than to protect nationalsecurity. So, if the go,-emnent discovered, in the course of surveillance,that an American was not a terrorist but was evading income tax, it could not use the discovery to prosecute himfor tax evasion or sre lttn for back taxes. No such rule ctrrently exists. But such a rule (if honored) would make more sense than requiringwarrants for electronic surv-eillance. Once you grantthe le~c y of surv-eillance aimed at detectionrather than at gatheringe\id ence of guilt,requiringa warrant to conduct it would be like requiringa ,varrant to ask people questionsor to installsu-veillancecameras on city streets. Warrants are for situationswhere the police shouldnot be allowedto do something(like sear'Chone's home) ,\ithout particularized gromds for believingthat there is illegalactivitygoingon. That is too high a standard for s1.trveillance designed to learn rather thanto pro,-e. R!Cli',.RD A. POSNIR is a federal circuit judge and the author of the forthcoming Uncertain Shield : The U.S. Intelligence System in the Throes of Reform. RELATED UNKS Bush'snew humility The ln-;,ider Bush and the GOP scandals RelOµ,Ued Suddenly, Bush just wants to be liked Spy Ocim"' The president's domestic wiretapping program is illegal 8r?ak:fa.;. t at Epiphanies: Bush officials are frequently misunderstood. Allow them to ConT~t Bush's new strategy for defending the war? Take Cha:ra-cterRaw veb only 18-1620-D-000068 Document ID: 0.7.18648.6103-000008 clarify web only Democratic quctes out of context vPeb only Home I Politics I Books & the A rts I Legal Notices Privac y Policy I Contad T NR I Subscriber Serv ices I Adv ertise With Us Cop yright 2006 , The Ne w Republic ~ TNR logo VERSIGHT Document ID: 0.7.18648.6103-000008 18-1620-D-000069 Bradbury, Steve From: Sent: To: Cc: Bradbury, Steve Tuesday, January 31, 2006 5:46 PM 'Brett_M._Kavanaugh@who.eop.gov'; 'Raul_F._Yanes ' (b) (6) Harriet_Miers@who.eop.gov; Brett_C._Gerry@who.eop.gov; 'William_K._Kelley@who.eop.gov'; Sampson, Kyle; Eisenberg, John; Elwood, Courtney AG's prepared statement & responses to Sen. Specter re NSA hearing Subject: Attachments: Prepared_Statement_1_31.doc; Specter_Response_1_31_am3.doc Attached for staffing purposes are drafts of (1) the Attorney General's prepared (written) statement for the February 6 Senate Judiciary Committee hearing on the NSA activities and (2) responses to the written questions posed by Chairman Specter in anticipation of the hearing. We intend (b) (5) . VERSIGHT Document ID: 0.7.18648.6152 18-1620-D-000070 Raul F. Yanes@ ___ (b) (6) _________________________ _ Se nt: (b) (6) Raul_ F._Yanes~ Wed nesd ay, February 0 1, 2006 11 :54 AM To : Bradbury, Steve; Brett_ M._ Kavanau gh@who .eop.gov Ce: Sampso n, Kyle; Eise nberg , John; Elwood , Courtney; Harriet_ Miers @who.eo p.gov; Brett_ C._Gerry@who.eo p.gov; William_ K._ Kelley@who .eo p.gov Subject: RE: AG's prepa red stat ement & res ponses to Sen. Specter re NSAhe-aring From: We will be clearing this through OMB's usua l process . -- -O rigina l Message --- From: Steve .Bradbury@usdoj .gov (ma ilto :Steve.Bradbury@usdo j .gov) Sent : Tuesd a Janu a 3 1 2006 5:47 PM duplicate VERSIGHT Document ID: 0.7.18648.6159 18-1620-D-000071 (b) (5) ----Or igina l Message-- --From: Miers , Harrie t Sent: Tuesda y, May 02, 2006 7:50 PM To: Perino, Dana M.; 'ta sia.scolinos@usdoj.gov '; Gerry, Brett C.; Brown, Jamie E. Cc: Mamo, Jean ie S.; 'Steve.Bradbury@usdoj.gov '; Kelley, William K.; Kavanaugh, Brett M. Subject: RE: Boston globe (b) (5) ---O rigina l Message ----From: Perino, Dana M. Sent: Tuesda y, May 02, 2006 7:41 PM To: 'ta sia.scolinos@usdoj.gov '; Gerry, Brett C.; Miers , Harriet; Brown, Jamie E. Cc: Mamo, Jean ie S. Subject: Boston globe VERSIGH I Document ID: 0.7.18648.6233 18-1620-D-000072 (b) (5) are his additiona l ques t ions : How ab out real an s wers to quest ions such as : - How can Bush asse rt that he believes th e Constitut ion forbids Congress from giving exe cutive branch officials th e power to act inde pende ntly of his direction (whistleblower provisions, empowering inspectors and resear chers t o do things without political interfere nce), given a long line of precede nts in which th e Supreme Court has upheld such laws (Morrison, Humphrey's Execut or, etc)? Sam e thing on flagging the affirmat ive action provisions - es pecially aft er the '03 Michiga n Law School de cision? - In what way is Bush not using this tool as an override-proof line-item veto, given his, otherwise inexplicab le failure to vet o a single bill over the pa st 5+ years unlike every other pres ide nt in modern history (including Reagan/ Bush41/Clinton)? If that is how it's funct ioning, under what constitut iona l th eo ry is that justifiab le? - If that 's not it, then what is the real explanat ion for why Bush is doing this so much more freque ntly than any prede cessor ? The ta lking point that previous administrat ions have also done this is not an an swer, beca use it 's a ques tion of degree . He's broken all records - by far. And he' s never iss ued a vet o. Someth ing ne w an d important is obviously happ en ing. What is it, an d why? Etc. VERSIGHT Document ID: 0.7.18648.6233 18-1620-D-000073 Bradbury, Steve Bradbury, Steve From: Sent: Friday, May 05, 2006 2:38 PM To: ' Brett_ M._Kavanaugh@ who.eop.gov ' Ce: Macklin, Krist i R Subject: FW: (b) (5) Attachments: (b) (5) Brett: Attached is summary of Fina l.doc (b) (5) . cases and mater ials. I hope th is is he lpful. ----Or igina l Message--- From: Macklin, Krist i R Sent: Friday, May OS, 2006 2:18 PM To: Bradbury, Steve (b) (5) Subject: FW: issues ... Do you have any re-commendat ions? ----Or igina l Message---- From: Brett_M._Kavanaugh@who.eop.gov Sent: Friday, May OS, 2006 2:14 PM To: Brett_ C._Ger ry@who.eop.gov Cc: Macklin, Krist i R Subject: ·issues ... (b) (5) (ma ilto:Brett _ M._ Kavanaugh@who.eop.gov ] (b) (5) VERSIGHT Document ID: 0.7.18648.6252 18-1620-D-000074 duplicate 18-1620-D-000075 Document ID: 0.7.18648.6252-000001 Macklin, Kristi R Macklin, Kristi R Friday, May 05, 2006 4:17 PM Macklin, Kristi R; Brand, Rachel; Cook, Elisebeth C; Jaffer, Jamil N; Sampson, Kyle; 'Neomi_J._Rao@who.eop.gov'; 'Grant_Dixton@who.eop.gov'; 'Brett_C._Gerry@who.eop.gov'; 'Chris Bartolomucci (HBartolomucci@HHLAW.com)'; 'Brian.Benczkowski@mail.house.gov'; 'Raul_F._Yanes@omb.eop.gov'; Richard Klingler (Richard_D._Klingler@who.eop.gov); Bradbury, Steve 'William_K._Kelley@who.eop.gov'; 'Brett_M._Kavanaugh@who.eop.gov'; John Cc: Persinger (John_M._Persinger@who.eop.gov); 'Kristen_K._Slaughter@who.eop.gov' Subject: RE: BK Moot - revised Attachments: BK Moots.doc From: Sent: To: Attached is a revised chart noting the addition of Steve Bradbury and Richard Klingler. The moot times are included on the chart. The moots will be held in Room 180 of the EEOB each day. Over the weekend, if you are driving and are not a WH passholder (and have already provided me with your information), please enter at 17th and E - you will be able to park on State Place, which will be the first driveway after entering the gate on the left. My cell phone number i (b) (6) . VERSIGHT Document ID: 0.7.18648.6255 18-1620-D-000076 BK Moots: 180 EEOB Saturday: 11:00 Kristi Beth Jamil – 2:00 (b) (5) (b) (5) s Sunday: 1:30 -4:30 Kristi (b) (5) Beth (b) (5) Rachel (b) (5) Monday: 11:00 – 2:00 Kristi (b) (5) Beth (b) (5) Rachel (b) (5) (b) (5) Kyle Neomi Grant (b) (5) Neomi (b) (5) (b) (5) ; (b) (5) Steve Bradbury (b) (5) r Brett (b) (5) Brett (b) (5) Richard Klingler Raul Chris B. Brian (b) (5) Brian (b) (5) (b) (5) r (b) (5) (b) (5) Format: We’ll plan on doing 10 minute rounds, probably with 2 rounds each. You should cover the topic you are assigned but can ask additional questions on other topic areas if time allows. You should stay out of other participants’ topics, but can follow up on other Senators questions on your time. Please don’t jump in on another questioner. If you see a big gap in topics, let me know. (b) (5) VERSIGHT Document ID: 0.7.18648.6255-000001 18-1620-D-000077 18-1620-D-000078 Document ID: 0.7.18648.6255-000001 • (b) (5) • • • • • • • • A ■--• • • • 18-1620-D-000079 Document ID: 0.7.18648.6255-000001 • (b) (5) • • • • • ■----------------- :===------• • 18-1620-D-000080 Document ID: 0.7.18648.6255-000001 I 18-1620-D-000081 Document ID: 0.7.18648.6255-000001 Bradbury, Steve From: Sent: To: Cc: Subject: Attachments: Bradbury, Steve Friday, May 05, 2006 5:08 PM 'Brett_M._Kavanaugh@who.eop.gov' Macklin, Kristi R Presidental Signing Statements Presidential Signing Statements (5-5-2006).pdf Brett: r (b) (5) . Please note that DOJ is sharing these talking points with reporters and others outside the Executive Branch. Steve VERSIGHT Document ID: 0.7.18648.6258 18-1620-D-000082 PRESIDENTIAL SIGNING STATEMENTS Like many Presidents before him, President Bush has issued statements on signing legislation into law. Presidents have used these “signing statements” for a variety of purposes. Sometimes Presidents use signing statements to explain to the public, and more particularly to interested constituencies, what the President understands to be the likely effects of the bill. Presidents throughout history also have issued what some have called “constitutional” signing statements, and it is this use of the signing statement that has recently been the subject of public attention. Presidents are sworn to “preserve, protect, and defend the Constitution,” and thus are responsible for ensuring that the manner in which they enforce acts of Congress is consistent with America’s founding document. Presidents have long used signing statements for the purpose of “informing Congress and the public that the Executive believes that a particular provision would be unconstitutional in certain of its applications,” Office of Legal Counsel, The Legal Significance of Presidential Signing Statements, 17 Op. O.L.C. 131, 131 (1993) (available at http://www.usdoj.gov/olc/signing.htm); Office of Legal Counsel, Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 202 (1994) (“[E]very President since Eisenhower has issued signing statements in which he stated that he would refuse to execute unconstitutional provisions”) (available at http://www.usdoj.gov/olc/nonexcut.htm), or for stating that the President will interpret or execute provisions of a law in a manner that would avoid constitutional infirmities. As Assistant Attorney General Walter Dellinger noted early during the Clinton Administration, “[s]igning statements have frequently expressed the President’s intention to construe or administer a statute in a particular manner (often to save the statute from unconstitutionality).” 17 Op. O.L.C. at 132 (emphasis added). President Bush, like many of his predecessors dating back at least to President James Monroe, has issued constitutional signing statements. The constitutional concerns identified in these statements often concern provisions of law that could be read to infringe explicit constitutional provisions (such as the Recommendations Clause, the Presentment Clauses, and the Appointments Clause) or to violate specific constitutional holdings of the Supreme Court. Common examples are provided below. President Bush’s use of “signing statements” is consistent with tradition. • Presidents have issued constitutional signing statements since the early years of the Republic. One scholar identifies President James Monroe as the first to issue a constitutional signing statement, when he stated that he would construe a statutory provision in a manner that did not conflict with his prerogative to appoint officers. See Christopher Kelley, A Comparative Look at the Constitutional Signing Statement 5 (2003) (available at http://mpsa.indiana.edu/ conf2003papers/1031858822). Louis Fisher of the Congressional Research Service notes that in 1830, Andrew Jackson “signed a bill and simultaneously sent to Congress a message” setting forth his interpretation “that restricted the reach of AMERICAN PVERSIGHT Document ID: 0.7.18648.6258-000001 18-1620-D-000083 the statute.” 17 Op. O.L.C. at 138 (quoting Louis Fisher, Constitutional Conflicts between Congress and the President 128 (3d ed. 1991)). Assistant Attorney General Dellinger conducted a thorough study and concluded that “signing statements of this kind can be found as early as the Jackson and Tyler Administrations, and later Presidents, including Lincoln, Andrew Johnson, Theodore Roosevelt, Wilson, Franklin Roosevelt, Truman, Eisenhower, Lyndon Johnson, Nixon, Ford and Carter, also engaged in the practice.” 17 Op. O.L.C. at 138. • In recent presidencies, the use of the constitutional signing statement has become more common. While the task of counting signing statements is inexact because of difficulties in characterizing some statements, Presidents Reagan, George H.W. Bush, Clinton, and George W. Bush have issued constitutional signing statements with respect to similar numbers of laws. According to one scholar, President Reagan issued constitutional signing statements with respect to 71 laws; George H.W. Bush, 146; Clinton, 105. See Kelley, supra, at 18. By our count, President Bush has issued such statements with respect to 104 laws as of January of this year. The practice of issuing signing statements does not, as some critics have charged, mean that a President has acted contrary to law. • The practice is consistent with, and derives from, the President’s constitutional obligations, and is an ordinary part of a respectful constitutional “dialogue” between the Branches. • The Constitution requires the President to take an oath to “preserve, protect, and defend the Constitution,” and directs him to “take care that the Laws be faithfully executed.” When Congress passes legislation containing provisions that could be construed or applied in certain cases in a manner as contrary to well settled constitutional principles, the President can and should take steps to ensure that such laws are interpreted and executed in a manner consistent with the Constitution. o The Constitution contemplates that Presidents interpret laws in the course of implementing them. The Supreme Court specifically has stated that the President has the power to “supervise and guide [Executive officers’] construction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which Article II of the Constitution evidently contemplated in vesting general executive power in the President alone,” Myers v. United States, 272 U.S. 52, 135 (1926); see also Bowsher v. Synar, 478 U.S. 714, 733 (1986) (“Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of ‘execution’ of the law.”). 2 AMERICAN PVERSIGHT Document ID: 0.7.18648.6258-000001 18-1620-D-000084 • Employing signing statements to advise Congress of constitutional objections is actually more respectful of Congress’s role as an equal branch of government than the alternatives proposed by some critics. o Recent administrations, including the Reagan, George H.W. Bush, and Clinton Administrations, consistently have taken the position that “the Constitution provides [the President] with the authority to decline to enforce a clearly unconstitutional law.” 17 Op. O.LC. at 133 (opinion of Assistant Attorney General Dellinger) (noting that understanding is “consistent with the view of the Framers” and has been endorsed by many members of the Supreme Court); 18 Op. O.L.C. at 199 (opinion of Assistant Attorney General Dellinger) (noting that “consistent and substantial executive practice” since “at least 1860 assert[s] the President’s authority to decline to effectuate enactments that the President views as unconstitutional”); Attorney General’s Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55, 59 (1980) (opinion of Benjamin R. Civiletti, Attorney General to President Carter) (“the President’s constitutional duty does not require him to execute unconstitutional statutes”); see also 2 Debates in the Several State Conventions on the Adoption of the Federal Constitution 446 (2d ed. 1836) (noting that just as judges have a duty “to pronounce [an unconstitutional law] void . . . In the same manner, the President of the United States could . . . refuse to carry into effect an act that violates the Constitution.”) (statement of James Wilson, signer of Constitution from Pennsylvania). Rather than tacitly placing limitations on the enforcement of provisions (or declining to enforce them), as has been done in the past, signing statements promote a constitutional dialogue with Congress by openly stating the interpretation that the President will give certain provisions. o It is not the case, as some have suggested, that the President’s only option when confronting a bill containing a provision that is constitutionally problematic is to veto the bill. Presidents Jefferson (e.g., the Louisiana Purchase), Lincoln, Theodore Roosevelt, Wilson, Franklin Roosevelt, Truman, Eisenhower, Kennedy, Lyndon Johnson, Ford, and Carter have signed legislation rather than vetoing it despite concerns that the legislation posed constitutional concerns. See 17 Op. O.L.C. at 132 nn.3 & 5, 134, 138; see INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (“it is not uncommon for Presidents to approve legislation containing parts which are objectionable on constitutional grounds”). 3 AMERICAN PVERSIGHT Document ID: 0.7.18648.6258-000001 18-1620-D-000085 o Compared to vetoing a bill, giving constitutionally infirm provisions a “saving” interpretation through a signing statement gives fuller effect to the wishes of Congress by giving complete effect to the vast majority of a law’s provisions. This approach is not, as some have suggested, an affront to Congress. Instead, it gives effect to the well established legal presumption that Congress did not enact an unconstitutional provision. As Assistant Attorney General Dellinger explained, this practice is “analogous to the Supreme Court’s practice of construing statutes, where possible, to avoid holding them unconstitutional.” A veto, by comparison, would render all of Congress’s work a nullity, even if, as is often the case, the constitutional concerns involve relatively minor provisions of major legislation. o This approach is also fully consistent with past practice. As Assistant Attorney General Dellinger explained early during the Clinton Administration: “In light of our constitutional history, we do not believe that the President is under any duty to veto legislation containing a constitutionally infirm provision.” Rather, giving problematic provisions a “saving” construction in a signing statement “serve[s] legitimate and defensible purposes.” 17 Op. O.L.C. at 137; see also 18 Op. O.L.C. at 202-203 (“the President has the authority to sign legislation containing desirable elements while refusing to execute a constitutionally defective position”). Many of President Bush’s constitutional signing statements have sought to preserve three specific constitutional provisions that are sometimes overlooked in the legislative process: the Recommendations Clause; the Presentment Clauses; and the Appointments Clause. While critics claim that the President has used signing statements in “unprecedented fashion,” his constitutional signing statements are completely consistent with those of his predecessors. • Recommendations Clause. Presidents commonly have raised objections when Congress purports to require the President to submit legislative recommendations, because the Constitution vests the President with discretion to do so when he sees fit, stating that he “shall from time to time . . . recommend to [Congress’s] Consideration such Measures as he shall judge necessary and expedient.” U.S. Const., Art. II, § 3, cl. 1. o o President Bush raised this objection 55 times in his 104 constitutional signing statements. Bush: “To the extent that provisions of the Act, such as sections 614 and 615, purport to require or regulate submission by executive branch officials of legislative recommendations to the Congress, the executive branch shall construe such provisions in a manner consistent with the President’s constitutional authority to 4 AMERICAN PVERSIGHT Document ID: 0.7.18648.6258-000001 18-1620-D-000086 o • Presentment Clauses/Bicameralism/INS v. Chadha. Presidents commonly raise objections when Congress purports to authorize a single House of Congress to take action on a matter in violation of the well established rule, embodied in the Supreme Court’s decision in INS v. Chadha, 462 U.S. 919, 958 (1983), that Congress can act only by “passage by a majority of both Houses and presentment to the President.” See U.S. Const., Art. I, § 7 (requiring that bills and resolutions pass both Houses before being presented to the President). o o o • supervise the unitary executive branch and to submit for congressional consideration such measures as the President judges necessary and expedient.” Statement on Signing the Intelligence Authorization Act for Fiscal Year 2005 (Dec. 23, 2004). Clinton: “Because the Constitution preserves to the President the authority to decide whether and when the executive branch should recommend new legislation, Congress may not require the President or his subordinates to present such recommendations (section 6). I therefore direct executive branch officials to carry out these provisions in a manner that is consistent with the President's constitutional responsibilities.” Statement on Signing the Shark Finning Prohibition Act (Dec. 26, 2000). President Bush raised this objection 44 times in his 104 constitutional signing statements. Bush: “The executive branch shall construe certain provisions of the Act that purport to require congressional committee approval for the execution of a law as calling solely for notification, as any other construction would be inconsistent with the constitutional principles enunciated by the Supreme Court of the United States in INS v. Chadha.” Statement on Signing the Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act (Dec. 30, 2005). Clinton: “There are provisions in the Act that purport to condition my authority or that of certain officers to use funds appropriated by the Act on the approval of congressional committees. My Administration will interpret such provisions to require notification only, since any other interpretation would contradict the Supreme Court ruling in INS v. Chadha.” Statement on Signing the Consolidated Appropriations Act, FY 2001 (Dec. 21, 2000). Appointments Clause. The Appointments Clause of the Constitution, U.S. Const., Art. II, § 2, provides that the President, with the advice and consent of the Senate, shall appoint principal officers of the United States (heads of agencies, for example); and that “inferior officers” can be appointed only by the President, by the heads of “Departments” (agencies), or by the courts. Presidents commonly raise an objection when Congress purports to restrict the President’s ability to 5 AMERICAN PVERSIGHT Document ID: 0.7.18648.6258-000001 18-1620-D-000087 appoint officers, or to vest entities other than the President, agency heads, or courts with the power to appoint officers. o o o President Bush raised this objection 19 times in his 104 constitutional signing statements. Bush: “The executive branch shall construe the described qualifications and lists of nominees under section 4305(b) as recommendations only, consistent with the provisions of the Appointments Clause of the Constitution.” Statement on Signing the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (Aug. 10, 2005). Clinton: “Under section 332(b)(1) of the bill, the President would be required to make such appointments from lists of candidates recommended by the National Association of Insurance Commissioners. The Appointments Clause, however, does not permit such restrictions to be imposed upon the President's power of appointment. I therefore do not interpret the restrictions of section 332(b)(1) as binding and will regard any such lists of recommended candidates as advisory only.” Statement on Signing Legislation To Reform the Financial System (Nov. 12, 1999). Many of President Bush’s constitutional signing statements have sought to preserve the confidentiality of national security information. • The Supreme Court has held that the Constitution gives the President authority to control the access of Executive Branch officials to classified information. The President’s “authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant.” Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988). Presidents commonly have issued signing statements when newly enacted provisions might be construed to involve the disclosure of sensitive information. o o President Bush raised this objection 60 times in his 104 constitutional signing statements. Bush: “Sections 2(5) and 2(6) of the Act purport to require the annual report of the Secretary of the Treasury to include a description of discussions between the United States and Mexican governments. In order to avoid intrusion into the President's negotiating authority and ability to maintain the confidentiality of diplomatic negotiations, the executive branch will not interpret this provision to require the disclosure of either the contents of diplomatic communications or specific plans for particular negotiations in the future.” Statement on Signing Legislation on 6 AMERICAN PVERSIGHT Document ID: 0.7.18648.6258-000001 18-1620-D-000088 o o Amendments to the Mexico-United States Agreement on the Border Environment Cooperation Commission and the North American Development Bank (Apr. 5, 2004). Clinton: “A number of other provisions of this bill raise serious constitutional concerns. Because the President is the Commander in Chief and the Chief Executive under the Constitution, the Congress may not interfere with the President's duty to protect classified and other sensitive national security information or his responsibility to control the disclosure of such information by subordinate officials of the executive branch (sections 1042, 3150, and 3164) . . . . To the extent that these provisions conflict with my constitutional responsibilities in these areas, I will construe them where possible to avoid such conflicts, and where it is impossible to do so, I will treat them as advisory. I hereby direct all executive branch officials to do likewise.” Statement on Signing the National Defense Authorization Act for Fiscal Year 2000 (Oct. 5, 1999). Eisenhower: “I have signed this bill on the express premise that the three amendments relating to disclosure are not intended to alter and cannot alter the recognized Constitutional duty and power of the Executive with respect to the disclosure of information, documents, and other materials. Indeed, any other construction of these amendments would raise grave Constitutional questions under the historic Separation of Powers Doctrine.” Pub. Papers of Dwight D. Eisenhower 549 (1959). President Bush also has used signing statements to safeguard the President’s wellestablished role in the Nation’s foreign affairs and the President’s wartime power. These signing statements also are in keeping with the practice of his predecessors. • While some critics have argued that President Bush has increased the use of Presidential signing statements, any such increase must be viewed in light of current events and the legislative response to those events. While President Bush has issued numerous signing statements of this sort, the significance of legislation affecting national security has increased markedly since the September 11th attacks and Congress’s authorization of the use of military force against the terrorists who perpetrated those attacks. Even before the War on Terror, President Clinton issued numerous such statements. One scholar identified this objection as the most common use of the constitutional signing statements by Presidents Clinton and George H.W. Bush, because it is in this area “where presidential power is at its zenith.” Kelley, supra, at 18. o Bush: “Section 107 of the Act purports to direct negotiations with foreign governments and international organizations. The executive branch shall implement section 107 in a manner consistent with the Constitution's grant to the President of the 7 AMERICAN PVERSIGHT Document ID: 0.7.18648.6258-000001 18-1620-D-000089 o o o o o o authority to conduct the foreign affairs of the United States.” Statement on Signing the North Korean Human Rights Act of 2004 (Oct. 18, 2004). Bush: “The executive branch shall construe subsection 1025(d) of the Act, which purports to determine the command relationships among certain elements of the U.S. Navy forces, as advisory, as any other construction would conflict with the President's constitutional authority as Commander in Chief.” Statement on Signing the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief Act, 2005 (May 11, 2005). Clinton: “Section 610 of the Commerce/Justice/State appropriations provision prohibits the use of appropriated funds for the participation of U.S. armed forces in a U.N. peacekeeping mission under foreign command unless the President's military advisers have recommended such involvement and the President has submitted such recommendations to the Congress. The ‘Contributions for International Peacekeeping Activities’ provision requires a report to the Congress prior to voting for a U.N. peacekeeping mission. These provisions unconstitutionally constrain my diplomatic authority and my authority as Commander in Chief, and I will apply them consistent with my constitutional responsibilities.” Statement on Signing the Omnibus Consolidated and Emergency Supplemental Appropriations Act (Oct. 23, 1998). Clinton: “I also oppose language in the Act related to the Kyoto Protocol. . . . My Administration's objections to these and other language provisions have been made clear in previous statements of Administration policy. I direct the agencies to construe these provisions to be consistent with the President's constitutional prerogatives and responsibilities and where such a construction is not possible, to treat them as not interfering with those prerogatives and responsibilities.” Statement on Signing the Departments of Commerce, Justice, State, the Judiciary, and Related Agencies Appropriations Act (Dec. 21, 2000). Carter: Congress “cannot mandate the establishment of consular relations at a time and place unacceptable to the President.” Statement on Signing the FY 1980-81 Department of State Appropriations Act, see 2 Pub. Papers of Jimmy Carter 1434 (1979). Nixon: Mansfield Amendment setting a final date for the withdrawal of U.S. Forces from Indochina was “without binding force or effect.” Pub. Papers of Richard Nixon 1114 (1971). Truman: “I do not regard this provision [involving loans to Spain] as a directive, which would be unconstitutional, but instead as an authorization, in addition to the authority already in existence under which loans to Spain may be made.” Statement on Signing 8 AMERICAN PVERSIGHT Document ID: 0.7.18648.6258-000001 18-1620-D-000090 o the General Appropriations Act of 1951, Pub. Papers of Harry S. Truman 616 (1950). Wilson: Expressed an intention not to enforce a provision on the grounds it was unconstitutional because doing so “would amount to nothing less than the breach or violation” of some thirty-two treaties. Louis Fisher, Constitutional Conflicts between Congress and the President 134 (4th ed. 1997). 9 AMERICAN PVERSIGHT Document ID: 0.7.18648.6258-000001 18-1620-D-000091 Brett_M._Kavanaugh@who.eop.gov Brett_M._Kavanaugh@who.eop.gov From: Sent: Frida y, May 12, 2006 4:36 PM To: Bradbury, Steve Subject: RE: Steve: Belate d tha rnks for this kind ema il. I am glad to be on to the next step ! ----Or igina l Message-- --From: Steve.Bradbury@usdoj.gov [mailto:Steve.Bradbury@usdoj.gov] Sent: Tuesda y, May 09, 2006 6:00 PM To:Kavanau gh, BrettM. Subject: Brett: Congratulat ions on successfu lly completing a se cond hear ing. You did a grea t job today ! VERSIGHT Document ID: 0.7.18648.6278 18-1620-D-000092 Brett_M._Kavanaugh@who.eop.gov Brett_M._Kavanaugh@who.eo p.gov From: Sent: Monday, May 29, 2006 3:11 PM To: Bradbury, Steve Subject: RE: The Newes t Judge on th e D.C. Circuit Steve : Thanks for th e kind words . I have app reciat ed an d learned from the work ethic, sou nd judg men t, and intellectual integ rity you have de monstrat ed in your work at K&E an d in the governmen t. I look forward to see ing you soo n. Brett - --Original Message-- -From: Steve.Bradbury@usdoj.gov [mailto:Steve.Bradbury@usdoj.gov] Sent: Frida y, May 26 , 2006 12:00 PM To:Kavanau gh, BrettM. Subject: FW: The Ne wes t Judge on th e D.C. Circuit Congratulat ions to you, Brett, and to us all!!! Pheno mena l news for the Republic!!! From: Elwood, John Sent: Friday, May 26, 2006 11:54 AM To: OLC_Attorne ys Subject: The Ne wes t Judge on the D.C. Circuit _vote_ cfm http://www. sena te .gov/ leg islat ive/LIS/rol I_ call_list s/ roll_ ca 11 .cfm?congress=1 09&sess ion=2&vote=00159 VERSIGHT Document ID: 0.7.18648.6280 18-1620-D-000093 U.S. Department of Justice Office of Legal Counsel Washington, D.C. 20530 September 17, 2018 Gabe Roth Executive Director Fix the Court gabe@fixthecourt.com Re: FOIA Tracking No. FY17-207; Fix the Courtv. DOJ, D.D.C. No. 18-cv-1620 Dear Mr. Roth: This letter partially responds to your May 8, 2017 Freedom oflnformation Act ("FOIA") request to the Office of Legal Counsel ("OLC") seeking , as narrowed, " [a]ll correspondence sent by the Assistant Attorney General in charge ofthe Office of Legal Counsel and his or her primary deputy to Brett M. Kavanaugh and all correspondence sent by Brett M. Kavanaugh to the Assistant Attorney General in charge of the Office of Legal Counsel and his or her primary deputy from January 20, 2001, to May 30, 2006 ," including carbon copied communications. As you know , the request is also the subject of the above-captioned litigation. Since the last partial response, we have processed 135 pages of responsive records. We have enclosed all 135 pages with some redactions. Our redactions are based on FOIA Exemption Three, 5 U.S.C. § 552(b)(3) , FOIA Exemption Five , 5 U.S .C. § 552(b)(5), or FOIA Exemption Six, 5 U.S.C. § 552(b)(6). The redactions based on Exemption Three, which exempts material protected from disclosure by statute, are marked with the relevant statutes. For your information, Exemption Five exempts material protected by the attorney-client, deliberative process, and presidential communications privileges, as well as the attorney work product doctrine and other privileges. Exemption Six exempts material the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. We have determined that none of the withheld material is appropriate for discretionary release. We have now completed processing responsive records. For your information , Congress excluded three discrete categories of law enforcemen t and national security records from the requirements of the FOIA. See 5 U.S.C. § 552(c). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist. Your counsel may contact Danielle Wolfson Young of the Civil Division, Federal Programs Branch, at 202-616-2035 or at danielle.young2 @usdoj.gov, to discuss any aspect of your request. Additionally, you may contact the Office of Government Information Services ("OGIS ") at the National Archives and Records Administration to inquire about the FOIA AM HICAN VERSIGHT mediation services they offer. The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration , Room 2510, 8601 Adelphi Road, College Park, Maryland 20740-6001 , e-mail at ogis@nara .gov; telephone at 202-741-5770 ; toll free at 1-877-684-6448; or facsimile at 202-741-5769. Although your request is the subject of ongoing litigation , and administrative appeals are not ordinarily acted upon in such situations, I am required by statute and regulation to inform you of your right to file an administrative appeal. You may administratively appeal by writing to the Director, Office of Information Policy ("OIP") , United States Department of Justice , Suite 11050, 1425 New York Avenue, NW , Washington, DC 20530-0001 , or you may submit an appeal through OIP' s FOIAonline portal by creating an account on the following web site: https://foiaonline .regulations.gov/foia/action/public/home. Your appeal must be postmarked or electronically transmitted within 90 days of the date of my response to your request. If you submit your appeal by mail, both the letter and the envelope should be clearly marked "Freedom of Information Act Appeal. " Sincerely , H~ Jo..:. Paul P. Colborn Special Counsel Enclosures cc: Danielle Wolfson Young, Trial Attorney Civil Division , Federal Programs Branch Elizabeth France, Counsel American Oversight 2 AMERICAN VERSIGHT Bradbury, Steve Bradbury, Steve Thursday, January 19, 2006 12:17 PM 'benjamin.powell@dni.gov'; 'BellingerJB@state.gov'; 'hayneswj (b) (6) Dan_Bartlett@who.eop.gov; 'Harriet_Miers@who.eop.gov';) Raul_F._Yanes ; 'John_B._Wiegmann@nsc.eop.gov';) (b) (6) 'John_M._Mitnick@who.eop.gov' (b)(3) 50 USC § 3605 ';) 'Brett_M._Kavanaugh@who.eop.gov'; 'Brett_C._Gerry@who.eop.gov';) William_K._Kelley@who.eop.gov Cc: Sampson, Kyle; Scolinos, Tasia; Moschella, William; Roehrkasse, Brian Subject: DOJ white paper on NSA activities Attachments: White Paper on NSA Legal Authorities.pdf From: Sent: To: l';) Attached is an advance copy in PDF form of the DOJ white paper discussing the legal authorities for the⌧ NSA activities described by the President. The Attorney General will be sending this paper to Congress this afternoon and it will thereafter be publicly released. VERSIGHT Document ID: 0.7.18648.6069 18-1620-E-000001 U.S. Department of Justice Washington, D.C. 20530 January 19, 2006 LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT As the President has explained, since shortly after the attacks of September 11, 2001, he has authorized the National Security Agency (“NSA”) to intercept international communications into and out of the United States of persons linked to al Qaeda or related terrorist organizations. The purpose of these intercepts is to establish an early warning system to detect and prevent another catastrophic terrorist attack on the United States. This paper addresses, in an unclassified form, the legal basis for the NSA activities described by the President (“NSA activities”). SUMMARY On September 11, 2001, the al Qaeda terrorist network launched the deadliest foreign attack on American soil in history. Al Qaeda’s leadership repeatedly has pledged to attack the/ United States again at a time of its choosing, and these terrorist organizations continue to pose a grave threat to the United States. In response to the September 11th attacks and the continuing threat, the President, with broad congressional approval, has acted to protect the Nation from/ another terrorist attack. In the immediate aftermath of September 11th, the President promised that “[w]e will direct every resource at our command—every means of diplomacy, every tool of intelligence, every tool of law enforcement, every financial influence, and every weapon of war—to the destruction of and to the defeat of the global terrorist network.” President Bush Address to a Joint Session of Congress (Sept. 20, 2001). The NSA activities are an indispensable aspect of this defense of the Nation. By targeting the international communications into and out of the United States of persons reasonably believed to be linked to al Qaeda, these activities provide the United States with an early warning system to help avert the next attack. For the following reasons, the NSA activities are lawful and consistent with civil liberties. The NSA activities are supported by the President’s well-recognized inherent/ constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. The President has the chief responsibility under the Constitution to protect America from attack, and the Constitution gives the President the authority necessary to fulfill that solemn responsibility. The President has made clear that he will exercise all authority available to him, consistent with the Constitution, to protect the people of the United States. 18-1620-E-000002 Document ID: 0.7.18648.6069-000001 In the specific context of the current armed conflict with al Qaeda and related terrorist organizations, Congress by statute has confirmed and supplemented the President’s recognized/ authority under Article II of the Constitution to conduct such warrantless surveillance to prevent further catastrophic attacks on the homeland. In its first legislative response to the terrorist attacks of September 11th, Congress authorized the President to “use all necessary and/ appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” of September 11th in order to prevent “any future acts of international terrorism against the United States.” Authorization for Use of/ Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (Sept. 18, 2001) (reported as a note to 50 U.S.C.A. § 1541) (“AUMF”). History conclusively demonstrates that warrantless/ communications intelligence targeted at the enemy in time of armed conflict is a traditional and fundamental incident of the use of military force authorized by the AUMF. The Supreme Court’s interpretation of the AUMF in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), confirms that Congress in the AUMF gave its express approval to the military conflict against al Qaeda and its allies and thereby to the President’s use of all traditional and accepted incidents of force in this current military conflict—including warrantless electronic surveillance to intercept enemy communications both at home and abroad. This understanding of the AUMF demonstrates Congress’s support for the President’s authority to protect the Nation and, at the same time, adheres to Justice O’Connor’s admonition that “a state of war is not a blank check for the President,” Hamdi, 542 U.S. at 536 (plurality opinion), particularly in view of the narrow scope/ of the NSA activities. The AUMF places the President at the zenith of his powers in authorizing the NSA activities. Under the tripartite framework set forth by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring), Presidential authority/ is analyzed to determine whether the President is acting in accordance with congressional/ authorization (category I), whether he acts in the absence of a grant or denial of authority by/ Congress (category II), or whether he uses his own authority under the Constitution to take actions incompatible with congressional measures (category III). Because of the broad/ authorization provided in the AUMF, the President’s action here falls within category I of Justice Jackson’s framework. Accordingly, the President’s power in authorizing the NSA activities is at its height because he acted “pursuant to an express or implied authorization of Congress,” and/ his power “includes all that he possesses in his own right plus all that Congress can delegate.” Id. at 635. The NSA activities are consistent with the preexisting statutory framework generally applicable to the interception of communications in the United States—the Foreign Intelligence Surveillance Act (“FISA”), as amended, 50 U.S.C. §§ 1801-1862 (2000 & Supp. II 2002), and 1 relevant related provisions in chapter 119 of title 18. Although FISA generally requires judicial approval of electronic surveillance, FISA also contemplates that Congress may authorize such surveillance by a statute other than FISA. See 50 U.S.C. § 1809(a) (prohibiting any person from/ intentionally “engag[ing] . . . in electronic surveillance under color of law except as authorized 1 Chapter 119 of title 18, which was enacted by Title III of the Omnibus Crime Control and Safe Streets/ Act of 1968, as amended, 18 U.S.C. §§ 2510-2521 (2000 & West Supp. 2005), is often referred to as “Title III.”/ 2/ VERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000003 by statute”). The AUMF, as construed by the Supreme Court in Hamdi and as confirmed by the history and tradition of armed conflict, is just such a statute. Accordingly, electronic surveillance conducted by the President pursuant to the AUMF, including the NSA activities, is fully consistent with FISA and falls within category I of Justice Jackson’s framework. Even if there were ambiguity about whether FISA, read together with the AUMF, permits the President to authorize the NSA activities, the canon of constitutional avoidance requires reading these statutes in harmony to overcome any restrictions in FISA and Title III, at least as they might otherwise apply to the congressionally authorized armed conflict with al Qaeda. Indeed, were FISA and Title III interpreted to impede the President’s ability to use the traditional tool of electronic surveillance to detect and prevent future attacks by a declared enemy that has already struck at the homeland and is engaged in ongoing operations against the United States, the constitutionality of FISA, as applied to that situation, would be called into very serious doubt. In fact, if this difficult constitutional question had to be addressed, FISA would be unconstitutional as applied to this narrow context. Importantly, the FISA Court of Review itself recognized just three years ago that the President retains constitutional authority to conduct foreign surveillance apart from the FISA framework, and the President is certainly entitled, at a minimum, to rely on that judicial interpretation of the Constitution and FISA./ Finally, the NSA activities fully comply with the requirements of the Fourth Amendment. The interception of communications described by the President falls within a well-established exception to the warrant requirement and satisfies the Fourth Amendment’s fundamental requirement of reasonableness. The NSA activities are thus constitutionally permissible and fully protective of civil liberties. BACKGROUND A. T HE A TTACKS OF S EPTEMBER 11, 2001 On September 11, 2001, the al Qaeda terrorist network launched a set of coordinated/ attacks along the East Coast of the United States. Four commercial jetliners, each carefully selected to be fully loaded with fuel for a transcontinental flight, were hijacked by al Qaeda operatives. Two of the jetliners were targeted at the Nation’s financial center in New York and/ were deliberately flown into the Twin Towers of the World Trade Center. The third was targeted at the headquarters of the Nation’s Armed Forces, the Pentagon. The fourth was apparently headed toward Washington, D.C., when passengers struggled with the hijackers and the plane crashed in Shanksville, Pennsylvania. The intended target of this fourth jetliner was evidently the White House or the Capitol, strongly suggesting that its intended mission was to strike a decapitation blow on the Government of the United States—to kill the President, the Vice President, or Members of Congress. The attacks of September 11th resulted in approximately 3,000 deaths—the highest single-day death toll from hostile foreign attacks in the Nation’s history. These attacks shut down air travel in the United States, disrupted the Nation’s financial markets and government operations, and caused billions of dollars in damage to the economy. 3/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000004 On September 14, 2001, the President declared a national emergency “by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States.” Proclamation No./ 7463, 66 Fed. Reg. 48,199 (Sept. 14, 2001). The same day, Congress passed a joint resolution authorizing the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” of September 11th, which the President signed on September 18th. AUMF § 2(a). Congress also expressly acknowledged that the attacks rendered it “necessary and appropriate” for the United States to exercise its right “to protect United States citizens both at home and abroad,” and in particular recognized that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” Id. pmbl. Congress emphasized that the attacks “continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States.” Id. The United States also launched a large-scale military response, both at home and abroad. In the United States, combat air patrols were immediately established over major metropolitan areas and were maintained 24 hours a day until April 2002. The United States also immediately began plans for a military response directed at al Qaeda’s base of operations in Afghanistan. Acting under his constitutional authority as Commander in Chief, and with the support of Congress, the President dispatched forces to Afghanistan and, with the assistance of the Northern Alliance, toppled the Taliban regime. As the President made explicit in his Military Order of November 13, 2001, authorizing/ the use of military commissions to try terrorists, the attacks of September 11th “created a state of/ armed conflict.” Military Order § l(a), 66 Fed. Reg. 57,833 (Nov. 13, 2001). Indeed, shortly after the attacks, NATO—for the first time in its 46-year history—invoked article 5 of the North Atlantic Treaty, which provides that an “armed attack against one or more of [the parties] shall be considered an attack against them all.” North Atlantic Treaty, Apr. 4, 1949, art. 5, 63 Stat. 2241, 2244, 34 U.N.T.S. 243, 246; see also Statement by NATO Secretary General Lord Robertson (Oct. 2, 2001), available at http://www.nato.int/docu/speech/2001/s011002a.htm/ (“[I]t has now been determined that the attack against the United States on 11 September was directed from abroad and shall therefore be regarded as an action covered by Article 5 of the/ Washington Treaty . . . .”). The President also determined in his Military Order that al Qaeda and related terrorists organizations “possess both the capability and the intention to undertake further terrorist attacks against the United States that, if not detected and prevented, will cause mass deaths, mass injuries, and massive destruction of property, and may place at risk the continuity of the operations of the United States Government,” and concluded that “an extraordinary emergency exists for national defense purposes.” Military Order, § l(c), (g), 66 Fed. Reg. at 57,833-34. B. THE NSA A CTIVITIES Against this unfolding background of events in the fall of 2001, there was substantial concern that al Qaeda and its allies were preparing to carry out another attack within the United States. Al Qaeda had demonstrated its ability to introduce agents into the United States undetected and to perpetrate devastating attacks, and it was suspected that additional agents were 4/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000005 likely already in position within the Nation’s borders. As the President has explained, unlike a conventional enemy, al Qaeda has infiltrated “our cities and communities and communicated from here in America to plot and plan with bin Laden’s lieutenants in Afghanistan, Pakistan and/ elsewhere.” Press Conference of President Bush (Dec. 19, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051219-2.html (“President’s Press Conference”). To this day, finding al Qaeda sleeper agents in the United States remains one of the paramount concerns in the War on Terror. As the President has explained, “[t]he terrorists want to strike America again, and they hope to inflict even more damage than they did on September the 11th.” Id./ The President has acknowledged that, to counter this threat, he has authorized the NSA to intercept international communications into and out of the United States of persons linked to al Qaeda or related terrorist organizations. The same day, the Attorney General elaborated and explained that in order to intercept a communication, there must be “a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda.” Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence, available at http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html (Dec. 19, 2005) (statement of Attorney General Gonzales). The purpose of these intercepts is to/ establish an early warning system to detect and prevent another catastrophic terrorist attack on the United States. The President has stated that the NSA activities “ha[ve] been effective in disrupting the enemy, while safeguarding our civil liberties.” President’s Press Conference. The President has explained that the NSA activities are “critical” to the national security of the United States. Id. Confronting al Qaeda “is not simply a matter of [domestic] law enforcement”—we must defend the country against an enemy that declared war against the United States. Id. To “effectively detect enemies hiding in our midst and prevent them from/ striking us again . . . we must be able to act fast and to detect conversations [made by individuals linked to al Qaeda] so we can prevent new attacks.” Id. The President pointed out that “a twominute phone conversation between somebody linked to al Qaeda here and an operative overseas could lead directly to the loss of thousands of lives.” Id. The NSA activities are intended to help “connect the dots” between potential terrorists. Id. In addition, the Nation is facing “a different era, a different war . . . people are changing phone numbers . . . and they’re moving quick[ly].” Id. As the President explained, the NSA activities “enable[] us to move faster and quicker. And/ that’s important. We’ve got to be fast on our feet, quick to detect and prevent.” Id. “This is an/ enemy that is quick and it’s lethal. And sometimes we have to move very, very quickly.” Id. FISA, by contrast, is better suited “for long-term monitoring.” Id. As the President has explained, the NSA activities are “carefully reviewed approximately every 45 days to ensure that [they are] being used properly.” Id. These activities are reviewed for legality by the Department of Justice and are monitored by the General Counsel and/ Inspector General of the NSA to ensure that civil liberties are being protected. Id. Leaders in Congress from both parties have been briefed more than a dozen times on the NSA activities. 5/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000006 C. THE CONTINUING THREAT POSED BY AL QAEDA Before the September 11th attacks, al Qaeda had promised to attack the United States. In 1998, Osama bin Laden declared a “religious” war against the United States and urged that it/ was the moral obligation of all Muslims to kill U.S. civilians and military personnel. See Statement of Osama bin Laden, Ayman al-Zawahiri, et al., Fatwah Urging Jihad Against Americans, published in Al-Quds al-’Arabi (Feb. 23, 1998) (“To kill the Americans and their allies—civilians and military—is an individual duty for every Muslim who can do it in any country in which it is possible to do it, in order to liberate the al-Aqsa Mosque and the holy/ mosque from their grip, and in order for their armies to move out of all the lands of Islam,/ defeated and unable to threaten any Muslim.”). Al Qaeda carried out those threats with a vengeance; they attacked the U.S.S. Cole in Yemen, the United States Embassy in Nairobi, and finally the United States itself in the September 11th attacks. It is clear that al Qaeda is not content with the damage it wrought on September 11th. As recently as December 7, 2005, Ayman al-Zawahiri professed that al Qaeda “is spreading, growing, and becoming stronger,” and that al Qaeda is “waging a great historic battle in Iraq, Afghanistan, Palestine, and even in the Crusaders’ own homes.” Ayman al-Zawahiri, videotape released on Al-Jazeera television network (Dec. 7, 2005). Indeed, since September 11th, al Qaeda leaders have repeatedly promised to deliver another, even more devastating attack on America. See, e.g., Osama bin Laden, videotape released on Al-Jazeera television network (Oct./ 24, 2004) (warning United States citizens of further attacks and asserting that “your security is in/ your own hands”); Osama bin Laden, videotape released on Al-Jazeera television network (Oct./ 18, 2003) (“We, God willing, will continue to fight you and will continue martyrdom operations inside and outside the United States . . . .”); Ayman Al-Zawahiri, videotape released on the AlJazeera television network (Oct. 9, 2002) (“I promise you [addressing the ‘citizens of the United/ States’] that the Islamic youth are preparing for you what will fill your hearts with horror”). Given that al Qaeda’s leaders have repeatedly made good on their threats and that al Qaeda has/ demonstrated its ability to insert foreign agents into the United States to execute attacks, it is clear that the threat continues. Indeed, since September 11th, al Qaeda has staged several largescale attacks around the world, including in Indonesia, Madrid, and London, killing hundreds of/ innocent people. ANALYSIS I. THE PRESIDENT HAS INHERENT CONSTITUTIONAL AUTHORITY TO ORDER+ WARRANTLESS FOREIGN INTELLIGENCE SURVEILLANCE As Congress expressly recognized in the AUMF, “the President has authority under the/ Constitution to take action to deter and prevent acts of international terrorism against the United States,” AUMF pmbl., especially in the context of the current conflict. Article II of the Constitution vests in the President all executive power of the United States, including the power to act as Commander in Chief of the Armed Forces, see U.S. Const. art. II, § 2, and authority over the conduct of the Nation’s foreign affairs. As the Supreme Court has explained, “[t]he President is the sole organ of the nation in its external relations, and its sole representative with 6/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000007 foreign nations.” United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (internal quotation marks and citations omitted). In this way, the Constitution grants the President inherent power to protect the Nation from foreign attack, see, e.g., The Prize Cases, 67/ U.S. (2 Black) 635, 668 (1863), and to protect national security information, see, e.g.,/ Department of the Navy v. Egan, 484 U.S. 518, 527 (1988). To carry out these responsibilities, the President must have authority to gather information necessary for the execution of his office. The Founders, after all, intended the/ federal Government to be clothed with all authority necessary to protect the Nation. See, e.g.,1 The Federalist No. 23, at 147 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (explaining that the federal Government will be “cloathed with all the powers requisite to the complete execution of its trust”); id. No. 41, at 269 (James Madison) (“Security against foreign danger is one of the/ primitive objects of civil society . . . . The powers requisite for attaining it must be effectually confided to the federal councils.”). Because of the structural advantages of the Executive Branch, the Founders also intended that the President would have the primary responsibility and necessary authority as Commander in Chief and Chief Executive to protect the Nation and to conduct the Nation’s foreign affairs. See, e.g., The Federalist No. 70, at 471-72 (Alexander Hamilton); see also Johnson v. Eisentrager, 339 U.S. 763, 788 (1950) (“this [constitutional]/ grant of war power includes all that is necessary and proper for carrying these powers into execution”) (citation omitted). Thus, it has been long recognized that the President has the authority to use secretive means to collect intelligence necessary for the conduct of foreign affairs and military campaigns. See, e.g., Chicago & S. Air Lines v. Waterman S.S. Corp., 333/ U.S. 103, 111 (1948) (“The President, both as Commander-in-Chief and as the Nation’s organ/ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world.”); Curtiss-Wright, 299 U.S. at 320 (“He has his confidential sources of/ information. He has his agents in the form of diplomatic, consular and other officials.”); Totten1 v. United States, 92 U.S. 105, 106 (1876) (President “was undoubtedly authorized during the/ war, as commander-in-chief . . . to employ secret agents to enter the rebel lines and obtain information respecting the strength, resources, and movements of the enemy”). In reliance on these principles, a consistent understanding has developed that the President has inherent constitutional authority to conduct warrantless searches and surveillance within the United States for foreign intelligence purposes. Wiretaps for such purposes thus have been authorized by Presidents at least since the administration of Franklin Roosevelt in 1940. See, e.g., United States v. United States District Court, 444 F.2d 651, 669-71 (6th Cir. 1971) (reproducing as an appendix memoranda from Presidents Roosevelt, Truman, and Johnson). In a/ Memorandum to Attorney General Jackson, President Roosevelt wrote on May 21, 1940: You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigation agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and limit them insofar as 7/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000008 possible to aliens. Id. at 670 (appendix A). President Truman approved a memorandum drafted by Attorney General Tom Clark in which the Attorney General advised that “it is as necessary as it was in 1940 to take the investigative measures” authorized by President Roosevelt to conduct electronic/ surveillance “in cases vitally affecting the domestic security.” Id. Indeed, while FISA was being debated during the Carter Administration, Attorney General Griffin Bell testified that “the current bill recognizes no inherent power of the President to conduct electronic surveillance, and I want to interpolate here to say that this does not take away the power [of] the President under the Constitution.” Foreign Intelligence Electronic Surveillance Act of 1978: Hearings on H.R. 5764, H.R. 9745, H.R. 7308, and H.R. 5632 Before the Subcomm. on Legislation of the House/ Comm. on Intelligence, 95th Cong., 2d Sess. 15 (1978) (emphasis added); see also Katz v. United States, 389 U.S. 347, 363 (1967) (White, J., concurring) (“Wiretapping to protect the security of the Nation has been authorized by successive Presidents.”); cf. Amending the Foreign Intelligence Surveillance Act: Hearings Before the House Permanent Select Comm. on Intelligence,103d Cong. 2d Sess. 61 (1994) (statement of Deputy Attorney General Jamie S. Gorelick) (“[T]he Department of Justice believes, and the case law supports, that the President has inherent authority to conduct warrantless physical searches for foreign intelligence purposes . . . .”)./ The courts uniformly have approved this longstanding Executive Branch practice. Indeed, every federal appellate court to rule on the question has concluded that, even in peacetime, the President has inherent constitutional authority, consistent with the Fourth Amendment, to conduct searches for foreign intelligence purposes without securing a judicial warrant. See In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002) (“[A]ll the other courts to have decided the issue [have] held that the President did have inherent/ authority to conduct warrantless searches to obtain foreign intelligence information . . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”) (emphasis added); accord, e.g., United1 States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980); United States v. Butenko, 494 F.2d/ 593 (3d Cir. 1974) (en banc); United States v. Brown, 484 F.2d 418 (5th Cir. 1973). But cf. Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975) (en banc) (dictum in plurality opinion suggesting that a warrant would be required even in a foreign intelligence investigation). In United States v. United States District Court, 407 U.S. 297 (1972) (the “Keith” case),/ the Supreme Court concluded that the Fourth Amendment’s warrant requirement applies to investigations of wholly domestic threats to security—such as domestic political violence and other crimes. But the Court in the Keith case made clear that it was not addressing the President’s authority to conduct foreign intelligence surveillance without a warrant and that it was expressly reserving that question: “[T]he instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.” Id. at 308; see also id. at 321-22 & n.20 (“We have not addressed, and/ express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.”). That Keith does not apply in the context of protecting against a foreign attack has been confirmed by the lower courts. After Keith, each of the three courts of appeals 8/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000009 that have squarely considered the question have concluded—expressly taking the Supreme Court’s decision into account—that the President has inherent authority to conduct warrantless surveillance in the foreign intelligence context. See, e.g., Truong Dinh Hung, 629 F.2d at 91314; Butenko, 494 F.2d at 603; Brown, 484 F.2d 425-26./ From a constitutional standpoint, foreign intelligence surveillance such as the NSA activities differs fundamentally from the domestic security surveillance at issue in Keith. As the Fourth Circuit observed, the President has uniquely strong constitutional powers in matters pertaining to foreign affairs and national security. “Perhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs.” Truong, 629 F.2d at 914; see id. at 913 (noting that “the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would . . . unduly frustrate the President in carrying out his foreign affairs responsibilities”); cf. Haig v. Agee, 453/ U.S. 280, 292 (1981) (“Matters intimately related to foreign policy and national security are 2/ rarely proper subjects for judicial intervention.”). The present circumstances that support recognition of the President’s inherent constitutional authority to conduct the NSA activities are considerably stronger than were the circumstances at issue in the earlier courts of appeals cases that recognized this power. All of the cases described above addressed inherent executive authority under the foreign affairs power to conduct surveillance in a peacetime context. The courts in these cases therefore had no occasion/ even to consider the fundamental authority of the President, as Commander in Chief, to gather intelligence in the context of an ongoing armed conflict in which the United States already had suffered massive civilian casualties and in which the intelligence gathering efforts at issue were specifically designed to thwart further armed attacks. Indeed, intelligence gathering is/ particularly important in the current conflict, in which the enemy attacks largely through clandestine activities and which, as Congress recognized, “pose[s] an unusual and extraordinary threat,” AUMF pmbl. Among the President’s most basic constitutional duties is the duty to protect the Nation from armed attack. The Constitution gives him all necessary authority to fulfill that responsibility. The courts thus have long acknowledged the President’s inherent authority to take action to protect Americans abroad, see, e.g., Durand v. Hollins, 8 F. Cas. 111, 112/ (C.C.S.D.N.Y. 1860) (No. 4186), and to protect the Nation from attack, see, e.g., The Prize Cases, 67 U.S. at 668. See generally Ex parte Quirin, 317 U.S. 1, 28 (1942) (recognizing that 2 Keith made clear that one of the significant concerns driving the Court’s conclusion in the domestic/ security context was the inevitable connection between perceived threats to domestic security and political dissent. As the Court explained: “Fourth Amendment protections become the more necessary when the targets of official/ surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute/ where the Government attempts to act under so vague a concept as the power to protect ‘domestic security.’” Keith,1 407 U.S. at 314; see also id. at 320 (“Security surveillances are especially sensitive because of the inherent/ vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering,/ and the temptation to utilize such surveillances to oversee political dissent.”). Surveillance of domestic groups/ raises a First Amendment concern that generally is not present when the subjects of the surveillance are foreign powers or their agents. 9/ 18-1620-E-000010 Document ID: 0.7.18648.6069-000001 the President has authority under the Constitution “to direct the performance of those functions which may constitutionally be performed by the military arm of the nation in time of war,” including “important incident[s] to the conduct of war,” such as “the adoption of measures by the military command . . . to repel and defeat the enemy”). As the Supreme Court emphasized in the/ Prize Cases, if the Nation is invaded, the President is “bound to resist force by force”; “[h]e must determine what degree of force the crisis demands” and need not await congressional sanction to do so. The Prize Cases, 67 U.S. at 670; see also Campbell v. Clinton, 203 F.3d 19, 27 (D.C. Cir./ 2000) (Silberman, J., concurring) (“[T]he Prize Cases . . . stand for the proposition that the President has independent authority to repel aggressive acts by third parties even without specific/ congressional authorization, and courts may not review the level of force selected.”); id. at 40 (Tatel, J., concurring) (“[T]he President, as commander in chief, possesses emergency authority to use military force to defend the nation from attack without obtaining prior congressional approval.”). Indeed, “in virtue of his rank as head of the forces, [the President] has certain powers and duties with which Congress cannot interfere.” Training of British Flying Students in the United States, 40 Op. Att’y Gen. 58, 61 (1941) (Attorney General Robert H. Jackson)/ (internal quotation marks omitted). In exercising his constitutional powers, the President has wide discretion, consistent with the Constitution, over the methods of gathering intelligence about the Nation’s enemies in a time of armed conflict. II. THE AUMF CONFIRMS AND SUPPLEMENTS THE PRESIDENT’S INHERENT POWER TO USE WARRANTLESS SURVEILLANCE AGAINST THE ENEMY IN THE CURRENT ARMED+ CONFLICT In the Authorization for Use of Military Force enacted in the wake of September 11th, Congress confirms and supplements the President’s constitutional authority to protect the Nation, including through electronic surveillance, in the context of the current post-September 11th armed conflict with al Qaeda and its allies. The broad language of the AUMF affords the President, at a minimum, discretion to employ the traditional incidents of the use of military force. The history of the President’s use of warrantless surveillance during armed conflicts demonstrates that the NSA surveillance described by the President is a fundamental incident of the use of military force that is necessarily included in the AUMF. A. THE TEXT AND PURPOSE OF THE AUMF AUTHORIZE THE NSA ACTIVITIES On September 14, 2001, in its first legislative response to the attacks of September 11th, Congress gave its express approval to the President’s military campaign against al Qaeda and, in the process, confirmed the well-accepted understanding of the President’s Article II powers. See 3 AUMF § 2(a). In the preamble to the AUMF, Congress stated that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States,” AUMF pmbl., and thereby acknowledged the President’s inherent constitutional authority to defend the United States. This clause “constitutes an extraordinarily 3 America’s military response began before the attacks of September 11th had been completed. See The1 9/11 Commission Report 20 (2004). Combat air patrols were established and authorized “to engage inbound aircraft/ if they could verify that the aircraft was hijacked.” Id. at 42. 10/ VERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000011 sweeping recognition of independent presidential constitutional power to employ the war power to combat terrorism.” Michael Stokes Paulsen, Youngstown Goes to War, 19 Const. Comment. 215, 252 (2002). This striking recognition of presidential authority cannot be discounted as the product of excitement in the immediate aftermath of September 11th, for the same terms were repeated by Congress more than a year later in the Authorization for Use of Military Force Against Iraq Resolution of 2002. Pub. L. No. 107-243, pmbl., 116 Stat. 1498, 1500 (Oct. 16, 2002) (“[T]he President has authority under the Constitution to take action in order to deter and prevent acts of international terrorism against the United States . . . .”). In the context of the conflict with al Qaeda and related terrorist organizations, therefore, Congress has acknowledged a broad executive authority to “deter and prevent” further attacks against the United States. The AUMF passed by Congress on September 14, 2001, does not lend itself to a narrow reading. Its expansive language authorizes the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized,/ committed, or aided the terrorist attacks that occurred on September 11, 2001.” AUMF § 2(a) (emphases added). In the field of foreign affairs, and particularly that of war powers and national security, congressional enactments are to be broadly construed where they indicate support for authority long asserted and exercised by the Executive Branch. See, e.g., Haig v./ Agee, 453 U.S. 280, 293-303 (1981); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537,/ 543-45 (1950); cf. Loving v. United States, 517 U.S. 748, 772 (1996) (noting that the usual “limitations on delegation [of congressional powers] do not apply” to authorizations linked to the Commander in Chief power); Dames & Moore v. Regan, 453 U.S. 654, 678-82 (1981) (even where there is no express statutory authorization for executive action, legislation in related field may be construed to indicate congressional acquiescence in that action). Although Congress’s/ war powers under Article I, Section 8 of the Constitution empower Congress to legislate regarding the raising, regulation, and material support of the Armed Forces and related matters, rather than the prosecution of military campaigns, the AUMF indicates Congress’s endorsement of the President’s use of his constitutional war powers. This authorization transforms the struggle against al Qaeda and related terrorist organizations from what Justice Jackson called “a zone of twilight,” in which the President and the Congress may have concurrent powers whose/ “distribution is uncertain,” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring), into a situation in which the President’s authority is at is maximum because “it includes all that he possesses in his own right plus all that Congress can delegate,” id./ at 635. With regard to these fundamental tools of warfare—and, as demonstrated below,/ warrantless electronic surveillance against the declared enemy is one such tool—the AUMF/ places the President’s authority at its zenith under Youngstown./ It is also clear that the AUMF confirms and supports the President’s use of those traditional incidents of military force against the enemy, wherever they may be—on United States soil or abroad. The nature of the September 11th attacks—launched on United States soil by foreign agents secreted in the United States—necessitates such authority, and the text of the AUMF confirms it. The operative terms of the AUMF state that the President is authorized to use force “in order to prevent any future acts of international terrorism against the United States,” id., an objective which, given the recent attacks within the Nation’s borders and the continuing use of air defense throughout the country at the time Congress acted, undoubtedly 11/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000012 contemplated the possibility of military action within the United States. The preamble, moreover, recites that the United States should exercise its rights “to protect United States citizens both at home and abroad.” Id. pmbl. (emphasis added). To take action against those linked to the September 11th attacks involves taking action against individuals within the United States. The United States had been attacked on its own soil—not by aircraft launched from/ carriers several hundred miles away, but by enemy agents who had resided in the United States/ for months. A crucial responsibility of the President—charged by the AUMF and the Constitution—was and is to identify and attack those enemies, especially if they were in the United States, ready to strike against the Nation. The text of the AUMF demonstrates in an additional way that Congress authorized the President to conduct warrantless electronic surveillance against the enemy. The terms of the AUMF not only authorized the President to “use all necessary and appropriate force” against those responsible for the September 11th attacks; it also authorized the President to “determine[]” the persons or groups responsible for those attacks and to take all actions necessary to prevent further attacks. AUMF § 2(a) (“the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11th, 2001, or harbored such organizations or persons”) (emphasis added). Of vital importance to the use of force against the enemy is locating the enemy and identifying its plans of attack. And of/ vital importance to identifying the enemy and detecting possible future plots was the authority to intercept communications to or from the United States of persons with links to al Qaeda or/ related terrorist organizations. Given that the agents who carried out the initial attacks resided in the United States and had successfully blended into American society and disguised their identities and intentions until they were ready to strike, the necessity of using the most effective intelligence gathering tools against such an enemy, including electronic surveillance, was patent. Indeed, Congress recognized that the enemy in this conflict poses an “unusual and extraordinary threat.” AUMF pmbl. The Supreme Court’s interpretation of the scope of the AUMF in Hamdi v. Rumsfeld, 542/ U.S. 507 (2004), strongly supports this reading of the AUMF. In Hamdi, five members of the Court found that the AUMF authorized the detention of an American within the United States, notwithstanding a statute that prohibits the detention of U.S. citizens “except pursuant to an Act of Congress,” 18 U.S.C. § 4001(a). See Hamdi, 542 U.S. at 519 (plurality opinion); id. at 587 (Thomas, J., dissenting). Drawing on historical materials and “longstanding law-of-war principles,” id. at 518-21, a plurality of the Court concluded that detention of combatants who fought against the United States as part of an organization “known to have supported” al Qaeda “is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.” Id. at 518; see also id. at 587 (Thomas, J., dissenting) (agreeing with the plurality that the joint resolution authorized the President to “detain those arrayed against our troops”); accord Quirin, 317 U.S. at 26-29, 38/ (recognizing the President’s authority to capture and try agents of the enemy in the United States even if they had never “entered the theatre or zone of active military operations”). Thus, even though the AUMF does not say anything expressly about detention, the Court nevertheless found that it satisfied section 4001(a)’s requirement that detention be congressionally authorized. 12/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000013 The conclusion of five Justices in Hamdi that the AUMF incorporates fundamental “incidents” of the use of military force makes clear that the absence of any specific reference to signals intelligence activities in the resolution is immaterial. See Hamdi, 542 U.S. at 519 (“[I]t is of no moment that the AUMF does not use specific language of detention.”) (plurality opinion). Indeed, given the circumstances in which the AUMF was adopted, it is hardly surprising that Congress chose to speak about the President’s authority in general terms. The purpose of the AUMF was for Congress to sanction and support the military response to the devastating terrorist attacks that had occurred just three days earlier. Congress evidently thought it neither necessary nor appropriate to attempt to catalog every specific aspect of the use of the forces it was/ authorizing and every potential preexisting statutory limitation on the Executive Branch. Rather than engage in that difficult and impractical exercise, Congress authorized the President, in general but intentionally broad terms, to use the traditional and fundamental incidents of war and to determine how best to identify and engage the enemy in the current armed conflict. Congress’s judgment to proceed in this manner was unassailable, for, as the Supreme Court has recognized, even in normal times involving no major national security crisis, “Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to/ take.” Dames & Moore, 453 U.S. at 678. Indeed, Congress often has enacted authorizations to use military force using general authorizing language that does not purport to catalogue in detail the specific powers the President may employ. The need for Congress to speak broadly in recognizing and augmenting the President’s core constitutional powers over foreign affairs and military campaigns is of course significantly heightened in times of national emergency. See Zemel v. Rusk, 381 U.S. 1, 17 (1965) (“[B]ecause of the changeable and explosive nature of contemporary international relations . . . Congress—in giving the Executive authority over matters of foreign affairs—must of necessity paint with a brush broader than that it customarily wields in domestic areas.”). Hamdi thus establishes the proposition that the AUMF “clearly and unmistakably” authorizes the President to take actions against al Qaeda and related organizations that amount to “fundamental incident[s] of waging war.” Hamdi, 542 U.S. at 519 (plurality opinion); see also id. at 587 (Thomas, J., dissenting). In other words, “[t]he clear inference is that the AUMF authorizes what the laws of war permit.” Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2048, 2092 (2005) (emphasis added). Congress is presumed to be aware of the Supreme Court’s precedents. Indeed, Congress recently enacted legislation in response to the Court’s decision in Rasul v. Bush, 542 U.S. 466/ (2004)—which was issued the same day as the Hamdi decision—removing habeas corpus jurisdiction over claims filed on behalf of confined enemy combatants held at Guantanamo Bay. Congress, however, has not expressed any disapproval of the Supreme Court’s commonsense 4/ and plain-meaning interpretation of the AUMF in Hamdi. 4 This understanding of the AUMF is consistent with Justice O’Connor’s admonition that “a state of war is/ not a blank check for the President,” Hamdi, 542 U.S. at 536 (plurality opinion). In addition to constituting a/ fundamental and accepted incident of the use of military force, the NSA activities are consistent with the law of/ armed conflict principle that the use of force be necessary and proportional. See Dieter Fleck, The Handbook of1 Humanitarian Law in Armed Conflicts 115 (1995). The NSA activities are proportional because they are minimally/ invasive and narrow in scope, targeting only the international communications of persons reasonably believed to be linked to al Qaeda, and are designed to protect the Nation from a devastating attack. 13/ VERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000014 B. WARRANTLESS ELECTRONIC SURVEILLANCE AIMED AT INTERCEPTING ENEMY COMMUNICATIONS HAS LONG BEEN RECOGNIZED AS A FUNDAMENTAL+ INCIDENT OF THE USE OF MILITARY FORCE The history of warfare—including the consistent practice of Presidents since the earliest days of the Republic—demonstrates that warrantless intelligence surveillance against the enemy is a fundamental incident of the use of military force, and this history confirms the statutory authority provided by the AUMF. Electronic surveillance is a fundamental tool of war that must be included in any natural reading of the AUMF’s authorization to use “all necessary and appropriate force.” As one author has explained: It is essential in warfare for a belligerent to be as fully informed as possible about the enemy—his strength, his weaknesses, measures taken by him and measures contemplated by him. This applies not only to military matters, but . . . anything which bears on and is material to his ability to wage the war in which he is engaged. The laws of war recognize and sanction this aspect of warfare. Morris Greenspan, The Modern Law of Land Warfare 325 (1959) (emphases added); see also Memorandum for Members of the House Permanent Select Comm. on Intel., from Jeffrey H./ Smith, Re: Legal Authorities Regarding Warrantless Surveillance of U.S. Persons 6 (Jan. 3,/ 2006) (“Certainly, the collection of intelligence is understood to be necessary to the execution of the war.”). Similarly, article 24 of the Hague Regulations of 1907 expressly states that “the employment of measures necessary for obtaining information about the enemy and the country [is] considered permissible.” See also L. Oppenheim, International Law vol. II § 159 (7th ed. 1952) (“War cannot be waged without all kinds of information, about the forces and the intentions of the enemy . . . . To obtain the necessary information, it has always been considered lawful to employ spies . . . .”); Joseph R. Baker & Henry G. Crocker, The Laws of Land Warfare 197 (1919) (“Every belligerent has a right . . . to discover the signals of the enemy and . . . to seek to procure information regarding the enemy through the aid of secret agents.”); cf. J.M. Spaight, War Rights on Land 205 (1911) (“[E]very nation employs spies; were a nation so/ quixotic as to refrain from doing so, it might as well sheathe its sword for ever. . . . Spies . . . are indispensably necessary to a general; and, other things being equal, that commander will be victorious who has the best secret service.”) (internal quotation marks omitted). In accordance with these well-established principles, the Supreme Court has consistently recognized the President’s authority to conduct intelligence activities. See, e.g., Totten v. United States, 92 U.S. 105, 106 (1876) (recognizing President’s authority to hire spies); Tenet v. Doe,/ 544 U.S. 1 (2005) (reaffirming Totten and counseling against judicial interference with such/ matters); see also Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948)/ (“The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports neither are not and ought not to be published to the world.”); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936) (The President “has his confidential sources of information. He has his agents in the form of diplomatic, 14/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000015 consular, and other officials.”). Chief Justice John Marshall even described the gathering of/ intelligence as a military duty. See Tatum v. Laird, 444 F.2d 947, 952-53 (D.C. Cir. 1971) (“As Chief Justice John Marshall said of Washington, ‘A general must be governed by his intelligence and must regulate his measures by his information. It is his duty to obtain correct information . . . . ’”) (quoting Foreword, U.S. Army Basic Field Manual, Vol. X, circa 1938), rev’d on other grounds, 408 U.S. 1 (1972). The United States, furthermore, has a long history of wartime surveillance—a history that can be traced to George Washington, who “was a master of military espionage” and “made frequent and effective use of secret intelligence in the second half of the eighteenth century.” Rhodri Jeffreys-Jones, Cloak and Dollar: A History of American Secret Intelligence 11 (2002); see generally id. at 11-23 (recounting Washington’s use of intelligence); see also Haig v. Agee,/ 471 U.S. 159, 172 n.16 (1981) (quoting General Washington’s letter to an agent embarking upon an intelligence mission in 1777: “The necessity of procuring good intelligence, is apparent and need not be further urged.”). As President in 1790, Washington obtained from Congress a “secret fund” to deal with foreign dangers and to be spent at his discretion. Jeffreys-Jones, supra, at 22. The fund, which remained in use until the creation of the Central Intelligence Agency in the mid-twentieth century and gained “longstanding acceptance within our/ constitutional structure,” Halperin v. CIA, 629 F.2d 144, 158-59 (D.C. Cir. 1980), was used “for/ all purposes to which a secret service fund should or could be applied for the public benefit,” including “for persons sent publicly and secretly to search for important information, political or commercial,” id. at 159 (quoting Statement of Senator John Forsyth, Cong. Debates 295 (Feb. 25, 1831)). See also Totten, 92 U.S. at 107 (refusing to examine payments from this fund lest the publicity make a “secret service” “impossible”). The interception of communications, in particular, has long been accepted as a fundamental method for conducting wartime surveillance. See, e.g., Greenspan, supra, at 326 (accepted and customary means for gathering intelligence “include air reconnaissance and photography; ground reconnaissance; observation of enemy positions; interception of enemy messages, wireless and other; examination of captured documents; . . . and interrogation of/ prisoners and civilian inhabitants”) (emphasis added). Indeed, since its independence, the United/ States has intercepted communications for wartime intelligence purposes and, if necessary, has done so within its own borders. During the Revolutionary War, for example, George Washington received and used to his advantage reports from American intelligence agents on British military strength, British strategic intentions, and British estimates of American strength. See Jeffreys-Jones, supra, at 13. One source of Washington’s intelligence was intercepted British mail. See Central Intelligence Agency, Intelligence in the War of Independence 31, 32/ (1997). In fact, Washington himself proposed that one of his Generals “contrive a means of/ opening [British letters] without breaking the seals, take copies of the contents, and then let them/ go on.” Id. at 32 (“From that point on, Washington was privy to British intelligence pouches between New York and Canada.”); see generally Final Report of the Select Committee to Study Governmental Operations with respect to Intelligence Activities (the “Church Committee”), S. Rep. No. 94-755, at Book VI, 9-17 (Apr. 23, 1976) (describing Washington’s intelligence activities). 15/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000016 More specifically, warrantless electronic surveillance of wartime communications has been conducted in the United States since electronic communications have existed, i.e., since at least the Civil War, when “[t]elegraph wiretapping was common, and an important intelligence source for both sides.” G.J.A. O’Toole, The Encyclopedia of American Intelligence and1 Espionage 498 (1988). Confederate General J.E.B. Stuart even “had his own personal wiretapper travel along with him in the field” to intercept military telegraphic communications. Samuel Dash, et al., The Eavesdroppers 23 (1971); see also O’Toole, supra, at 121, 385-88, 49698 (discussing Civil War surveillance methods such as wiretaps, reconnaissance balloons,/ semaphore interception, and cryptanalysis). Similarly, there was extensive use of electronic surveillance during the Spanish-American War. See Bruce W. Bidwell, History of the Military Intelligence Division, Department of the Army General Staff: 1775-1941, at 62 (1986). When an American expeditionary force crossed into northern Mexico to confront the forces of Pancho/ Villa in 1916, the Army “frequently intercepted messages of the regime in Mexico City or the forces contesting its rule.” David Alvarez, Secret Messages 6-7 (2000). Shortly after Congress/ declared war on Germany in World War I, President Wilson (citing only his constitutional powers and the joint resolution declaring war) ordered the censorship of messages sent outside the United States via submarine cables, telegraph, and telephone lines. See Exec. Order No./ 2604 (Apr. 28, 1917). During that war, wireless telegraphy “enabled each belligerent to tap the messages of the enemy.” Bidwell, supra, at 165 (quoting statement of Col. W. Nicolai, former head of the Secret Service of the High Command of the German Army, in W. Nicolai, The German Secret Service 21 (1924)). As noted in Part I, on May 21, 1940, President Roosevelt authorized warrantless electronic surveillance of persons suspected of subversive activities, including spying, against/ the United States. In addition, on December 8, 1941, the day after the attack on Pearl Harbor, President Roosevelt gave the Director of the FBI “temporary powers to direct all news censorship and to control all other telecommunications traffic in and out of the United States.” Jack A. Gottschalk, “Consistent with Security”. . . . A History of American Military Press Censorship, 5 Comm. & L. 35, 39 (1983) (emphasis added). See Memorandum for the Secretaries of War, Navy, State, and Treasury, the Postmaster General, and the Federal Communications Commission from Franklin D. Roosevelt (Dec. 8, 1941). President Roosevelt soon supplanted that temporary regime by establishing an office for conducting such electronic surveillance in accordance with the War Powers Act of 1941. See Pub. L. No. 77-354, § 303, 55/ Stat. 838, 840-41 (Dec. 18, 1941); Gottschalk, 5 Comm. & L. at 40. The President’s order gave the Government of the United States access to “communications by mail, cable, radio, or other means of transmission passing between the United States and any foreign country.” Id. See also Exec. Order No. 8985, § 1, 6 Fed. Reg. 6625, 6625 (Dec. 19, 1941). In addition, the United States systematically listened surreptitiously to electronic communications as part of the war effort. See Dash, Eavesdroppers at 30. During World War II, signals intelligence assisted in,/ among other things, the destruction of the German U-boat fleet by the Allied naval forces, see id. at 27, and the war against Japan, see O’Toole, supra, at 32, 323-24. In general, signals/ intelligence “helped to shorten the war by perhaps two years, reduce the loss of life, and make inevitable an eventual Allied victory.” Carl Boyd, American Command of the Sea Through Carriers, Codes, and the Silent Service: World War II and Beyond 27 (1995); see also Alvarez, supra, at 1 (“There can be little doubt that signals intelligence contributed significantly to the 16/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000017 military defeat of the Axis.”). Significantly, not only was wiretapping in World War II used “extensively by military intelligence and secret service personnel in combat areas abroad,” but also “by the FBI and secret service in this country.” Dash, supra, at 30. In light of the long history of prior wartime practice, the NSA activities fit squarely within the sweeping terms of the AUMF. The use of signals intelligence to identify and pinpoint/ the enemy is a traditional component of wartime military operations—or, to use the terminology of Hamdi, a “fundamental and accepted . . . incident to war,” 542 U.S. at 518 (plurality/ opinion)—employed to defeat the enemy and to prevent enemy attacks in the United States. Here, as in other conflicts, the enemy may use public communications networks, and some of the enemy may already be in the United States. Although those factors may be present in this conflict to a greater degree than in the past, neither is novel. Certainly, both factors were well known at the time Congress enacted the AUMF. Wartime interception of international communications made by the enemy thus should be understood, no less than the wartime detention at issue in Hamdi, as one of the basic methods of engaging and defeating the enemy that Congress authorized in approving “all necessary and appropriate force” that the President would need to defend the Nation. AUMF § 2(a) (emphasis added). * * *+ Accordingly, the President has the authority to conduct warrantless electronic surveillance against the declared enemy of the United States in a time of armed conflict. That authority derives from the Constitution, and is reinforced by the text and purpose of the AUMF, the nature of the threat posed by al Qaeda that Congress authorized the President to repel, and the long-established understanding that electronic surveillance is a fundamental incident of the use of military force. The President’s power in authorizing the NSA activities is at its zenith because/ he has acted “pursuant to an express or implied authorization of Congress.” Youngstown, 343/ U.S. at 635 (Jackson, J., concurring). III. THE NSA ACTIVITIES ARE CONSISTENT WITH THE FOREIGN INTELLIGENCE+ SURVEILLANCE ACT The President’s exercise of his constitutional authority to conduct warrantless wartime electronic surveillance of the enemy, as confirmed and supplemented by statute in the AUMF, is 5 fully consistent with the requirements of the Foreign Intelligence Surveillance Act (“FISA”). FISA is a critically important tool in the War on Terror. The United States makes full use of the authorities available under FISA to gather foreign intelligence information, including authorities to intercept communications, conduct physical searches, and install and use pen registers and trap and trace devices. While FISA establishes certain procedures that must be followed for/ these authorities to be used (procedures that usually involve applying for and obtaining an order from a special court), FISA also expressly contemplates that a later legislative enactment could 5 To avoid revealing details about the operation of the program, it is assumed for purposes of this paper/ that the activities described by the President constitute “electronic surveillance,” as defined by FISA, 50 U.S.C./ § 1801(f). 17/ VERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000018 authorize electronic surveillance outside the procedures set forth in FISA itself. The AUMF constitutes precisely such an enactment. To the extent there is any ambiguity on this point, the canon of constitutional avoidance requires that such ambiguity be resolved in favor of the President’s authority to conduct the communications intelligence activities he has described. Finally, if FISA could not be read to allow the President to authorize the NSA activities during the current congressionally authorized armed conflict with al Qaeda, FISA would be unconstitutional as applied in this narrow context./ A. THE REQUIREMENTS OF FISA FISA was enacted in 1978 to regulate “electronic surveillance,” particularly when conducted to obtain “foreign intelligence information,” as those terms are defined in section 101 of FISA, 50 U.S.C. § 1801. As a general matter, the statute requires that the Attorney General approve an application for an order from a special court composed of Article III judges and created by FISA—the Foreign Intelligence Surveillance Court (“FISC”). See 50 U.S.C. §§ 18031804. The application must demonstrate, among other things, that there is probable cause to believe that the target is a foreign power or an agent of a foreign power. See id. § 1805(a)(3)(A). It must also contain a certification from the Assistant to the President for National Security Affairs or an officer of the United States appointed by the President with the advice and consent of the Senate and having responsibilities in the area of national security or defense that the information sought is foreign intelligence information and cannot reasonably be obtained by/ normal investigative means. See id. § 1804(a)(7). FISA further requires the Government to state the means that it proposes to use to obtain the information and the basis for its belief that the facilities at which the surveillance will be directed are being used or are about to be used by a foreign power or an agent of a foreign power. See id. § 1804(a)(4), (a)(8). FISA was the first congressional measure that sought to impose restrictions on the Executive Branch’s authority to engage in electronic surveillance for foreign intelligence purposes, an authority that, as noted above, had been repeatedly recognized by the federal courts. See Americo R. Cinquegrana, The Walls (and Wires) Have Ears: The Background and First Ten Years of the Foreign Intelligence Surveillance Act of 1978, 137 U. Penn. L. Rev. 793, 810 (1989)/ (stating that the “status of the President’s inherent authority” to conduct surveillance “formed the core of subsequent legislative deliberations” leading to the enactment of FISA). To that end, FISA modified a provision in Title III that previously had disclaimed any intent to have laws governing wiretapping interfere with the President’s constitutional authority to gather foreign intelligence. Prior to the passage of FISA, section 2511(3) of title 18 had stated that “[n]othing contained in this chapter or in section 605 of the Communications Act of 1934 . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign/ intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities.” 18 U.S.C. § 2511(3) (1970). FISA replaced that provision with an important, though more limited, preservation of authority for the President. See Pub. L. No. 95-511, § 201(b), (c), 92 Stat. 1783, 1797 (1978), codified at 18 U.S.C. § 2511(2)(f) (West Supp. 2005) (carving out from statutory regulation only the acquisition of intelligence information from “international or foreign communications” and 18/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000019 “foreign intelligence activities . . . involving a foreign electronic communications system” as long as they are accomplished “utilizing a means other than electronic surveillance as defined in/ section 101” of FISA). Congress also defined “electronic surveillance,” 50 U.S.C. § 1801(f),/ 6/ carefully and somewhat narrowly. In addition, Congress addressed, to some degree, the manner in which FISA might apply after a formal declaration of war by expressly allowing warrantless surveillance for a period of fifteen days following such a declaration. Section 111 of FISA allows the President to/ “authorize electronic surveillance without a court order under this subchapter to acquire foreign/ intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.” 50 U.S.C. § 181l./ The legislative history of FISA shows that Congress understood it was legislating on fragile constitutional ground and was pressing or even exceeding constitutional limits in regulating the President’s authority in the field of foreign intelligence. The final House Conference Report, for example, recognized that the statute’s restrictions might well impermissibly infringe on the President’s constitutional powers. That report includes the extraordinary acknowledgment that “[t]he conferees agree that the establishment by this act of exclusive means by which the President may conduct electronic surveillance does not foreclose a different decision by the Supreme Court.” H.R. Conf. Rep. No. 95-1720, at 35, reprinted in 1978 U.S.C.C.A.N. 4048, 4064. But, invoking Justice Jackson’s concurrence in the Steel Seizure case, the Conference Report explained that Congress intended in FISA to exert whatever power Congress constitutionally had over the subject matter to restrict foreign intelligence surveillance and to leave the President solely with whatever inherent constitutional authority he might be able to invoke against Congress’s express wishes. Id. The Report thus explains that “[t]he intent of/ the conferees is to apply the standard set forth in Justice Jackson’s concurring opinion in the Steel Seizure Case: ‘When a President takes measures incompatible with the express or implied 6 FISA’s legislative history reveals that these provisions were intended to exclude certain intelligence/ activities conducted by the National Security Agency from the coverage of FISA. According to the report of the/ Senate Judiciary Committee on FISA, “this provision [referencing what became the first part of section 2511(2)(f)]/ is designed to make clear that the legislation does not deal with international signals intelligence activities as/ currently engaged in by the National Security Agency and electronic surveillance conducted outside the United/ States.” S. Rep. No. 95-604, at 64 (1978), reprinted in 1978 U.S.C.C.A.N. 3904, 3965. The legislative history also/ makes clear that the definition of “electronic surveillance” was crafted for the same reason. See id. at 33-34, 1978 U.S.C.C.A.N. at 3934-36. FISA thereby “adopts the view expressed by the Attorney General during the hearings/ that enacting statutory controls to regulate the National Security Agency and the surveillance of Americans abroad raises problems best left to separate legislation.” Id. at 64, 1978 U.S.C.C.A.N. at 3965. Such legislation placing/ limitations on traditional NSA activities was drafted, but never passed. See National Intelligence Reorganization/ and Reform Act of 1978: Hearings Before the Senate Select Committee on Intelligence, 95th Cong., 2d Sess. 9991007 (1978) (text of unenacted legislation). And Congress understood that the NSA surveillance that it intended categorically to exclude from FISA could include the monitoring of international communications into or out of the/ United States of U.S. citizens. The report specifically referred to the Church Committee report for its description of/ the NSA’s activities, S. Rep. No. 95-604, at 64 n.63, 1978 U.S.C.C.A.N. at 3965-66 n.63, which stated that “the/ NSA intercepts messages passing over international lines of communication, some of which have one terminal/ within the United States. Traveling over these lines of communication, especially those with one terminal in the United States, are messages of Americans . . . .” S. Rep. 94-755, at Book II, 308 (1976). Congress’s understanding/ in the legislative history of FISA that such communications could be intercepted outside FISA procedures is notable./ 19/ VERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000020 will of Congress, his power is at the lowest ebb, for then he can rely only upon his own constitutional power minus any constitutional power of Congress over the matter.’” Id. (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring));/ see also S. Rep. No. 95-604, at 64, reprinted in 1978 U.S.C.C.A.N. at 3966 (same); see generally Elizabeth B. Bazen et al., Congressional Research Service, Re: Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information 28-29 (Jan. 5, 2006). It is significant, however, that Congress did not decide conclusively to continue to push the boundaries of its constitutional authority in wartime. Instead, Congress reserved the question of the appropriate procedures to regulate electronic surveillance in time of war, and established a fifteen-day period during which the President would be permitted to engage in electronic surveillance without complying with FISA’s express procedures and during which Congress would have the opportunity to revisit the issue. See 50 U.S.C. § 1811; H.R. Conf. Rep. No. 951720, at 34, reprinted in 1978 U.S.C.C.A.N. at 4063 (noting that the purpose of the fifteen-day/ period following a declaration of war in section 111 of FISA was to “allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency”). B. FISA CONTEMPLATES AND ALLOWS SURVEILLANCE AUTHORIZED “BY STATUTE”+ Congress did not attempt through FISA to prohibit the Executive Branch from using electronic surveillance. Instead, Congress acted to bring the exercise of that power under more/ stringent congressional control. See, e.g., H. Conf. Rep. No. 95-1720, at 32, reprinted in 1978/ U.S.C.C.A.N. 4048, 4064. Congress therefore enacted a regime intended to supplant the President’s reliance on his own constitutional authority. Consistent with this overriding purpose/ of bringing the use of electronic surveillance under congressional control and with the commonsense notion that the Congress that enacted FISA could not bind future Congresses, FISA expressly contemplates that the Executive Branch may conduct electronic surveillance/ outside FISA’s express procedures if and when a subsequent statute authorizes such surveillance. Thus, section 109 of FISA prohibits any person from intentionally “engag[ing] . . . in/ electronic surveillance under color of law except as authorized by statute.” 50 U.S.C./ § 1809(a)(1) (emphasis added). Because FISA’s prohibitory provision broadly exempts surveillance “authorized by statute,” the provision demonstrates that Congress did not attempt to regulate through FISA electronic surveillance authorized by Congress through a subsequent enactment. The use of the term “statute” here is significant because it strongly suggests that any subsequent authorizing statute, not merely one that amends FISA itself, could legitimately/ authorize surveillance outside FISA’s standard procedural requirements. Compare 18 U.S.C./ § 2511(1) (“Except as otherwise specifically provided in this chapter any person who—(a)/ intentionally intercepts . . . any wire, oral, or electronic communication[] . . . shall be punished/ . . . .”) (emphasis added); id. § 2511(2)(e) (providing a defense to liability to individuals/ “conduct[ing] electronic surveillance, . . . as authorized by that Act [FISA]”) (emphasis added). In enacting FISA, therefore, Congress contemplated the possibility that the President might be permitted to conduct electronic surveillance pursuant to a later-enacted statute that did not 20/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000021 incorporate all of the procedural requirements set forth in FISA or that did not expressly amend FISA itself./ To be sure, the scope of this exception is rendered less clear by the conforming amendments that FISA made to chapter 119 of title 18—the portion of the criminal code that provides the mechanism for obtaining wiretaps for law enforcement purposes. Before FISA was enacted, chapter 119 made it a criminal offense for any person to intercept a communication except as specifically provided in that chapter. See 18 U.S.C. § 2511(1)(a), (4)(a). Section 201(b) of FISA amended that chapter to provide an exception from criminal liability for activities conducted pursuant to FISA. Specifically, FISA added 18 U.S.C. § 2511(2)(e), which provides that it is not unlawful for “an officer, employee, or agent of the United States . . . to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, as authorized by that Act.” Id. § 2511(2)(e). Similarly, section 201(b) of FISA amended chapter 119 to provide that “procedures in this chapter [or chapter 121/ (addressing access to stored wire and electronic communications and customer records)] and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, 7/ and electronic communications may be conducted.” Id. § 2511(2)(f) (West Supp. 2005). The amendments that section 201(b) of FISA made to title 18 are fully consistent, however, with the conclusion that FISA contemplates that a subsequent statute could authorize electronic surveillance outside FISA’s express procedural requirements. Section 2511(2)(e) of title 18, which provides that it is “not unlawful” for an officer of the United States to conduct electronic surveillance “as authorized by” FISA, is best understood as a safe-harbor provision. Because of section 109, the protection offered by section 2511(2)(e) for surveillance “authorized by” FISA extends to surveillance that is authorized by any other statute and therefore excepted from the prohibition of section 109. In any event, the purpose of section 2511(2)(e) is merely to make explicit what would already have been implicit—that those authorized by statute to engage in particular surveillance do not act unlawfully when they conduct such surveillance. Thus, even if that provision had not been enacted, an officer conducting surveillance authorized by statute (whether FISA or some other law) could not reasonably have been thought to be violating Title III. Similarly, section 2511(2)(e) cannot be read to require a result that would be manifestly unreasonable—exposing a federal officer to criminal liability for engaging in surveillance/ authorized by statute, merely because the authorizing statute happens not to be FISA itself. Nor could 18 U.S.C. § 2511(2)(f), which provides that the “procedures in this chapter . . ./ and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance . . . may be conducted,” have been intended to trump the commonsense/ approach of section 109 and preclude a subsequent Congress from authorizing the President to engage in electronic surveillance through a statute other than FISA, using procedures other than those outlined in FISA or chapter 119 of title 18. The legislative history of section 2511(2)(f) clearly indicates an intent to prevent the President from engaging in surveillance except as 7 The bracketed portion was added in 1986 amendments to section 2511(2)(f). See Pub. L. No. 99-508 § 101(b)(3), 100 Stat. 1848, 1850. 21/ VERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000022 authorized by Congress, see H.R. Conf. Rep. No. 95-1720, at 32, reprinted in 1978/ U.S.C.C.A.N. 4048, 4064, which explains why section 2511(2)(f) set forth all then-existing statutory restrictions on electronic surveillance. Section 2511(2)(f)’s reference to “exclusive means” reflected the state of statutory authority for electronic surveillance in 1978 and cautioned/ the President not to engage in electronic surveillance outside congressionally sanctioned/ parameters. It is implausible to think that, in attempting to limit the President’s authority, Congress also limited its own future authority by barring subsequent Congresses from/ authorizing the Executive to engage in surveillance in ways not specifically enumerated in FISA or chapter 119, or by requiring a subsequent Congress specifically to amend FISA and section 2511(2)(f). There would be a serious question as to whether the Ninety-Fifth Congress could have so tied the hands of its successors. See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135/ (1810) (noting that “one legislature cannot abridge the powers of a succeeding legislature”); Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932) (“[T]he will of a particular Congress . . . does not impose itself upon those to follow in succeeding years”); Lockhart v. United States, 126 S./ Ct. 699, 703 (2005) (Scalia, J., concurring) (collecting precedent); 1 W. Blackstone, Commentaries on the Laws of England 90 (1765) (“Acts of parliament derogatory from the power of subsequent parliaments bind not”). In the absence of a clear statement to the contrary, it cannot be presumed that Congress attempted to abnegate its own authority in such a way. Far from a clear statement of congressional intent to bind itself, there are indications that section 2511(2)(f) cannot be interpreted as requiring that all electronic surveillance and domestic interception be conducted under FISA’s enumerated procedures or those of chapter 119 of title 18 until and unless those provisions are repealed or amended. Even when section 2511(2)(f) was enacted (and no subsequent authorizing statute existed), it could not reasonably be read to/ preclude all electronic surveillance conducted outside the procedures of FISA or chapter 119 of/ title 18. In 1978, use of a pen register or trap and trace device constituted electronic surveillance/ as defined by FISA. See 50 U.S.C. §§ 1801(f), (n). Title I of FISA provided procedures for/ obtaining court authorization for the use of pen registers to obtain foreign intelligence information. But the Supreme Court had, just prior to the enactment of FISA, held that chapter 119 of title 18 did not govern the use of pen registers. See United States v. New York Tel. Co.,/ 434 U.S. 159, 165-68 (1977). Thus, if section 2511(2)(f) were to be read to permit of no exceptions, the use of pen registers for purposes other than to collect foreign intelligence information would have been unlawful because such use would not have been authorized by the “exclusive” procedures of section 2511(2)(f), i.e., FISA and chapter 119. But no court has held that pen registers could not be authorized outside the foreign intelligence context. Indeed, FISA/ appears to have recognized this issue by providing a defense to liability for any official who engages in electronic surveillance under a search warrant or court order. See 50 U.S.C./ § 1809(b). (The practice when FISA was enacted was for law enforcement officers to obtain search warrants under the Federal Rules of Criminal Procedure authorizing the installation and use of pen registers. See S. 1667, A Bill to Amend Title 18, United States Code, with Respect to the Interception of Certain Communications, Other Forms of Surveillance, and for Other Purposes: Hearing Before the Subcomm. On Patents, Copyrights and Trademarks of the Senate 22/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000023 Comm. on the Judiciary, 99th Cong. 57 (1985) (prepared statement of James Knapp, Deputy 8/ Assistant Attorney General, Criminal Division)). In addition, section 2511(2)(a)(ii) authorizes telecommunications providers to assist officers of the Government engaged in electronic surveillance when the Attorney General certifies that “no warrant or court order is required by law [and] that all statutory requirements 9 have been met.” 18 U.S.C. § 2511(2)(a)(ii). If the Attorney General can certify, in good faith, that the requirements of a subsequent statute authorizing electronic surveillance are met, service providers are affirmatively and expressly authorized to assist the Government. Although FISA/ does allow the Government to proceed without a court order in several situations, see 50 U.S.C./ § 1805(f) (emergencies); id. § 1802 (certain communications between foreign governments), this provision specifically lists only Title III’s emergency provision but speaks generally to Attorney General certification. That reference to Attorney General certification is consistent with the historical practice in which Presidents have delegated to the Attorney General authority to approve warrantless surveillance for foreign intelligence purposes. See, e.g., United States v. United States District Court, 444 F.2d 651, 669-71 (6th Cir. 1971) (reproducing as an appendix memoranda from Presidents Roosevelt, Truman, and Johnson). Section 2511(2)(a)(ii) thus suggests that telecommunications providers can be authorized to assist with warrantless electronic surveillance when such surveillance is authorized by law outside FISA./ In sum, by expressly and broadly excepting from its prohibition electronic surveillance undertaken “as authorized by statute,” section 109 of FISA permits an exception to the “procedures” of FISA referred to in 18 U.S.C. § 2511(2)(f) where authorized by another statute, even if the other authorizing statute does not specifically amend section 2511(2)(f). C. THE AUMF IS A “STATUTE” AUTHORIZING SURVEILLANCE OUTSIDE THE+ CONFINES OF FISA The AUMF qualifies as a “statute” authorizing electronic surveillance within the meaning of section 109 of FISA. First, because the term “statute” historically has been given broad meaning, the phrase/ “authorized by statute” in section 109 of FISA must be read to include joint resolutions such as 8 Alternatively, section 109(b) may be read to constitute a “procedure” in FISA or to incorporate/ procedures from sources other than FISA (such as the Federal Rules of Criminal Procedure or state court/ procedures), and in that way to satisfy section 2511(2)(f). But if section 109(b)’s defense can be so read, section/ 109(a) should also be read to constitute a procedure or incorporate procedures not expressly enumerated in FISA./ 9 Section 2511(2)(a)(ii) states:/ Notwithstanding any other law, providers of wire or electronic communication service, . . . are/ authorized by law to provide information, facilities, or technical assistance to persons authorized by law to intercept . . . communications or to conduct electronic surveillance, as defined [by/ FISA], if such provider . . . has been provided with . . . a certification in writing by [specified persons proceeding under Title III’s emergency provision] or the Attorney General of the United/ States that no warrant or court order is required by law, that all statutory requirements have been/ met, and that the specific assistance is required./ 23/ VERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000024 the AUMF. See American Fed’n of Labor v. Watson, 327 U. S. 582, 592-93 (1946) (finding the term “statute” as used in 28 U.S.C. § 380 to mean “a compendious summary of various enactments, by whatever method they may be adopted, to which a State gives her sanction”); Black’s Law Dictionary 1410 (6th ed. 1990) (defining “statute” broadly to include any “formal written enactment of a legislative body,” and stating that the term is used “to designate the legislatively created laws in contradistinction to court decided or unwritten laws”). It is thus of/ no significance to this analysis that the AUMF was enacted as a joint resolution rather than a bill. See, e.g., Ann Arbor R.R. Co. v. United States, 281 U.S. 658, 666 (1930) (joint resolutions are to be construed by applying “the rules applicable to legislation in general”); United States ex rel. Levey v. Stockslager, 129 U.S. 470, 475 (1889) (joint resolution had “all the characteristics and effects” of statute that it suspended); Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564, 598/ (S.D.N.Y 2002) (in analyzing the AUMF, finding that there is “no relevant constitutional difference between a bill and a joint resolution”), rev’d sub nom. on other grounds, Rumsfeld v. Padilla, 352 F.3d 695 (2d Cir. 2003), rev’d, 542 U.S. 426 (2004); see also Letter for the Hon. John Conyers, Jr., U.S. House of Representatives, from Prof. Laurence H. Tribe at 3 (Jan. 6, 2006) (term “statute” in section 109 of FISA “of course encompasses a joint resolution presented to and signed by the President”). Second, the longstanding history of communications intelligence as a fundamental incident of the use of force and the Supreme Court’s decision in Hamdi v. Rumsfeld strongly suggest that the AUMF satisfies the requirement of section 109 of FISA for statutory authorization of electronic surveillance. As explained above, it is not necessary to demarcate the outer limits of the AUMF to conclude that it encompasses electronic surveillance targeted at the enemy. Just as a majority of the Court concluded in Hamdi that the AUMF authorizes detention of U.S. citizens who are enemy combatants without expressly mentioning the President’s longrecognized power to detain, so too does it authorize the use of electronic surveillance without specifically mentioning the President’s equally long-recognized power to engage in/ communications intelligence targeted at the enemy. And just as the AUMF satisfies the/ requirement in 18 U.S.C. § 4001(a) that no U.S. citizen be detained “except pursuant to an Act of Congress,” so too does it satisfy section 109’s requirement for statutory authorization of 10 In authorizing the President’s use of force in response to the/ electronic surveillance. September 11th attacks, Congress did not need to comb through the United States Code looking for those restrictions that it had placed on national security operations during times of peace and designate with specificity each traditional tool of military force that it sought to authorize the President to use. There is no historical precedent for such a requirement: authorizations to use/ 10 It might be argued that Congress dealt more comprehensively with electronic surveillance in FISA than it did with detention in 18 U.S.C. § 4001(a). Thus, although Congress prohibited detention “except pursuant to an Act of Congress,” it combined the analogous prohibition in FISA (section 109(a)) with section 2511(2)(f)’s/ exclusivity provision. See Letter to the Hon. Bill Frist, Majority Leader, U.S. Senate, from Professor Curtis A./ Bradley et al. at 5 n.6 (Jan. 9, 2006) (noting that section 4001(a) does not “attempt[] to create an exclusive/ mechanism for detention”). On closer examination, however, it is evident that Congress has regulated detention far/ more meticulously than these arguments suggest. Detention is the topic of much of the Criminal Code, as well as a/ variety of other statutes, including those providing for civil commitment of the mentally ill and confinement of alien terrorists. The existence of these statutes and accompanying extensive procedural safeguards, combined with the/ substantial constitutional issues inherent in detention, see, e.g., Hamdi, 542 U.S. at 574-75 (Scalia, J., dissenting), refute any such argument. 24/ VERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000025 military force traditionally have been couched in general language. Indeed, prior administrations have interpreted joint resolutions declaring war and authorizing the use of military force to 11/ authorize expansive collection of communications into and out of the United States. Moreover, crucial to the Framers’ decision to vest the President with primary constitutional authority to defend the Nation from foreign attack is the fact that the Executive can/ act quickly, decisively, and flexibly as needed. For Congress to have a role in that process, it must be able to act with similar speed, either to lend its support to, or to signal its disagreement with, proposed military action. Yet the need for prompt decisionmaking in the wake of a devastating attack on the United States is fundamentally inconsistent with the notion that to do so Congress must legislate at a level of detail more in keeping with a peacetime budget reconciliation bill. In emergency situations, Congress must be able to use broad language that effectively sanctions the President’s use of the core incidents of military force. That is precisely what Congress did when it passed the AUMF on September 14, 2001—just three days after the deadly attacks on America. The Capitol had been evacuated on September 11th, and Congress was meeting in scattered locations. As an account emerged of who might be responsible for these attacks, Congress acted quickly to authorize the President to use “all necessary and/ appropriate force” against the enemy that he determines was involved in the September 11th attacks. Under these circumstances, it would be unreasonable and wholly impractical to demand that Congress specifically amend FISA in order to assist the President in defending the Nation. Such specificity would also have been self-defeating because it would have apprised our 12/ adversaries of some of our most sensitive methods of intelligence gathering. Section 111 of FISA, 50 U.S.C. § 1811, which authorizes the President, “[n]otwithstanding any other law,” to conduct “electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by Congress,” does not require a different reading of the AUMF. See also id. § 1844 (same provision for pen registers); id. § 1829 (same provision for physical searches). Section 111 cannot reasonably be read as Congress’s final word on electronic surveillance during wartime, thus permanently limiting the President in all 11 As noted above, in intercepting communications, President Wilson relied on his constitutional authority/ and the joint resolution declaring war and authorizing the use of military force, which, as relevant here, provided “that the President [is] authorized and directed to employ the entire naval and military forces of the United States/ and the resources of the Government to carry on war against the Imperial German Government; and to bring the conflict to a successful termination all of the resources of the country are hereby pledged by the Congress of the/ United States.” Joint Resolution of Apr. 6, 1917, ch. 1, 40 Stat. 1. The authorization did not explicitly mention interception of communications./ 12 Some have suggested that the Administration declined to seek a specific amendment to FISA allowing/ the NSA activities “because it was advised that Congress would reject such an amendment,” Letter to the Hon. Bill/ Frist, Majority Leader, U.S. Senate, from Professor Curtis A. Bradley et al. 4 & n.4 (Jan. 9, 2005), and they have quoted in support of that assertion the Attorney General’s statement that certain Members of Congress advised the/ Administration that legislative relief “would be difficult, if not impossible.” Id. at 4 n.4. As the Attorney General/ subsequently indicated, however, the difficulty with such specific legislation was that it could not be enacted “without compromising the program.” See Remarks by Homeland Security Secretary Chertoff and Attorney/ General Gonzales on the USA PATRIOT Act (Dec. 21, 2005), available at http://www.dhs.gov/dhspublic// display?content=5285. 25/ 18-1620-E-000026 Document ID: 0.7.18648.6069-000001 circumstances to a mere fifteen days of warrantless military intelligence gathering targeted at the enemy following a declaration of war. Rather, section 111 represents Congress’s recognition that it would likely have to return to the subject and provide additional authorization to conduct warrantless electronic surveillance outside FISA during time of war. The Conference Report explicitly stated the conferees’ “inten[t] that this [fifteen-day] period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency.” H.R. Conf. Rep. No. 95-1720, at 34, reprinted in 1978 U.S.C.C.A.N. at 4063. Congress enacted section 111 so that the President could conduct warrantless surveillance while Congress considered supplemental wartime legislation. Nothing in the terms of section 111 disables Congress from authorizing such electronic surveillance as a traditional incident of war through a broad, conflict-specific authorization for the use of military force, such as the AUMF. Although the legislative history of section 111 indicates that in 1978 some Members of Congress believed that any such authorization would/ come in the form of a particularized amendment to FISA itself, section 111 does not require that result. Nor could the Ninety-Fifth Congress tie the hands of a subsequent Congress in this way, at least in the absence of far clearer statutory language expressly requiring that result. See supra,/ pp. 21-22; compare, e.g., War Powers Resolution, § 8, 50 U.S.C. § 1547(a) (“Authority to introduce United States Armed Forces into hostilities . . . shall not be inferred . . . from any/ provision of law . . . unless such provision specifically authorizes [such] introduction . . . and/ states that it is intended to constitute specific statutory authorization within the meaning of this chapter.”); 10 U.S.C. § 401 (stating that any other provision of law providing assistance to foreign countries to detect and clear landmines shall be subject to specific limitations and may be construed as superseding such limitations “only if, and to the extent that, such provision/ specifically refers to this section and specifically identifies the provision of this section that is to be considered superseded or otherwise inapplicable”). An interpretation of section 111 that would disable Congress from authorizing broader electronic surveillance in that form can be reconciled neither with the purposes of section 111 nor with the well-established proposition that “one legislature cannot abridge the powers of a succeeding legislature.” Fletcher v. Peck, 10/ U.S. (6 Cranch) at 135; see supra Part II.B. For these reasons, the better interpretation is that section 111 was not intended to, and did not, foreclose Congress from using the AUMF as the legal vehicle for supplementing the President’s existing authority under FISA in the battle against al Qaeda. The contrary interpretation of section 111 also ignores the important differences between a formal declaration of war and a resolution such as the AUMF. As a historical matter, a formal declaration of war was no longer than a sentence, and thus Congress would not expect a declaration of war to outline the extent to which Congress authorized the President to engage in various incidents of waging war. Authorizations for the use of military force, by contrast, are typically more detailed and are made for the specific purpose of reciting the manner in which Congress has authorized the President to act. Thus, Congress could reasonably expect that an/ authorization for the use of military force would address the issue of wartime surveillance, while a declaration of war would not. Here, the AUMF declares that the Nation faces “an unusual and extraordinary threat,” acknowledges that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States,” and 26/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000027 provides that the President is authorized “to use all necessary and appropriate force” against/ those “he determines” are linked to the September 11th attacks. AUMF pmbl., § 2. This sweeping language goes far beyond the bare terms of a declaration of war. Compare, e.g., Act of Apr. 25, 1898, ch. 189, 30 Stat. 364 (“First. That war be, and the same is hereby declared to exist . . . between the United States of America and the Kingdom of Spain.”). Although legislation that has included a declaration of war has often also included an authorization of the President to use force, these provisions are separate and need not be/ combined in a single statute. See, e.g., id. (“Second. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United/ States, and to call into the actual service of the United States the militia of the several states, to such extent as may be necessary to carry this Act into effect.”) (emphasis added). Moreover, declarations of war have legal significance independent of any additional authorization of force that might follow. See, e.g., Louis Henkin, Foreign Affairs and the U.S. Constitution 75 (2d ed. 1996) (explaining that a formal state of war has various legal effects, such as terminating diplomatic relations, and abrogating or suspending treaty obligations and international law rights and duties); see also id. at 370 n.65 (speculating that one reason to fight an undeclared war/ would be to “avoid the traditional consequences of declared war on relations with third nations or even . . . belligerents”). In addition, section 111 does not cover the vast majority of modern military conflicts. The last declared war was World War II. Indeed, the most recent conflict prior to the passage of FISA, Vietnam, was fought without a formal declaration of war. In addition, the War Powers Resolution, enacted less than five years before FISA, clearly recognizes the distinctions between formal declarations of war and authorizations of force and demonstrates that, if Congress had/ wanted to include such authorizations in section 111, it knew how to do so. See, e.g., 50 U.S.C./ § 1544(b) (attempting to impose certain consequences 60 days after reporting the initiation of/ hostilities to Congress “unless the Congress . . . has declared war or has enacted a specific authorization for such use” of military force) (emphasis added). It is possible that, in enacting section 111, Congress intended to make no provision for even the temporary use of electronic surveillance without a court order for what had become the legal regime for most military conflicts. A better reading, however, is that Congress assumed that such a default provision would be unnecessary because, if it had acted through an authorization for the use of military force, the more detailed provisions of that authorization would resolve the extent to which Congress would attempt to authorize, or withhold authorization for, the use of electronic 13/ surveillance. 13 Some have pointed to the specific amendments to FISA that Congress made shortly after September 11th in the USA PATRIOT Act, Pub. L. No. 107-56, §§ 204, 218, 115 Stat. 272, 281, 291 (2001), to argue that/ Congress did not contemplate electronic surveillance outside the parameters of FISA. See Memorandum for Members of the House Permanent Select Comm. on Intel. from Jeffrey H. Smith, Re: Legal Authorities Regarding1 Warrantless Surveillance of U.S. Persons 6-7 (Jan. 3, 2006). The USA PATRIOT Act amendments, however, do/ not justify giving the AUMF an unnaturally narrow reading. The USA PATRIOT Act amendments made important/ corrections in the general application of FISA; they were not intended to define the precise incidents of military/ force that would be available to the President in prosecuting the current armed conflict against al Qaeda and its/ allies. Many removed long-standing impediments to the effectiveness of FISA that had contributed to the/ 27/ 18-1620-E-000028 Document ID: 0.7.18648.6069-000001 * * *+ The broad text of the AUMF, the authoritative interpretation that the Supreme Court gave it in Hamdi, and the circumstances in which it was passed demonstrate that the AUMF is a statute authorizing electronic surveillance under section 109 of FISA. When the President authorizes electronic surveillance against the enemy pursuant to the AUMF, he is therefore/ acting at the height of his authority under Youngstown, 343 U.S. at 637 (Jackson, J., concurring). D. THE CANON OF CONSTITUTIONAL AVOIDANCE REQUIRES RESOLVING IN FAVOR+ PRESIDENT’S AUTHORITY ANY AMBIGUITY ABOUT WHETHER FISA FORBIDS THE NSA ACTIVITIES OF THE As explained above, the AUMF fully authorizes the NSA activities. Because FISA/ contemplates the possibility that subsequent statutes could authorize electronic surveillance without requiring FISA’s standard procedures, the NSA activities are also consistent with FISA and related provisions in title 18. Nevertheless, some might argue that sections 109 and 111 of/ FISA, along with section 2511(2)(f)’s “exclusivity” provision and section 2511(2)(e)’s liability exception for officers engaged in FISA-authorized surveillance, are best read to suggest that FISA requires that subsequent authorizing legislation specifically amend FISA in order to free the Executive from FISA’s enumerated procedures. As detailed above, this is not the better reading of FISA. But even if these provisions were ambiguous, any doubt as to whether the AUMF and FISA should be understood to allow the President to make tactical military decisions to authorize surveillance outside the parameters of FISA must be resolved to avoid the serious constitutional questions that a contrary interpretation would raise. It is well established that the first task of any interpreter faced with a statute that may present an unconstitutional infringement on the powers of the President is to determine whether the statute may be construed to avoid the constitutional difficulty. “[I]f an otherwise acceptable maintenance of an unnecessary “wall” between foreign intelligence gathering and criminal law enforcement; others/ were technical clarifications. See In re Sealed Case, 310 F.3d 717, 725-30 (Foreign Int. Surv. Ct. Rev. 2002). The/ “wall” had been identified as a significant problem hampering the Government’s efficient use of foreign intelligence/ information well before the September 11th attacks and in contexts unrelated to terrorism. See, e.g., Final Report of1 the Attorney General’s Review Team on the Handling of the Los Alamos National Laboratory Investigation 710,/ 729, 732 (May 2000); General Accounting Office, FBI Intelligence Investigations: Coordination Within Justice on Counterintelligence Criminal Matters Is Limited (GAO-01-780) 3, 31 (July 2001). Finally, it is worth noting that/ Justice Souter made a similar argument in Hamdi that the USA PATRIOT Act all but compelled a narrow reading of/ the AUMF. See 542 U.S. at 551 (“It is very difficult to believe that the same Congress that carefully circumscribed/ Executive power over alien terrorists on home soil [in the USA PATRIOT Act] would not have meant to require the Government to justify clearly its detention of an American citizen held on home soil incommunicado.”). Only/ Justice Ginsburg joined this opinion, and the position was rejected by a majority of Justices./ Nor do later amendments to FISA undermine the conclusion that the AUMF authorizes electronic/ surveillance outside the procedures of FISA. Three months after the enactment of the AUMF, Congress enacted certain “technical amendments” to FISA which, inter alia, extended the time during which the Attorney General/ may issue an emergency authorization of electronic surveillance from 24 to 72 hours. See Intelligence Authorization/ Act for Fiscal Year 2002, Pub. L. No. 107-108, § 314, 115 Stat. 1394, 1402 (2001). These modifications to FISA do/ not in any way undermine Congress’s previous authorization in the AUMF for the President to engage in electronic surveillance outside the parameters of FISA in the specific context of the armed conflict with al Qaeda./ 28/ 18-1620-E-000029 Document ID: 0.7.18648.6069-000001 construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is ‘fairly possible,’ we are obligated to construe the statute to avoid such problems.” INS v. St. Cyr, 533 U.S. 289, 299-300 (2001) (citations omitted); Ashwander v. TVA, 297 U.S. 288, 345-48 (1936) (Brandeis, J., concurring). Moreover, the canon of/ constitutional avoidance has particular importance in the realm of national security, where the President’s constitutional authority is at its highest. See Department of the Navy v. Egan, 484 U.S. 518, 527, 530 (1988); William N. Eskridge, Jr., Dynamic Statutory Interpretation 325/ (1994) (describing “[s]uper-strong rule against congressional interference with the President’s authority over foreign affairs and national security”). Thus, courts and the Executive Branch typically construe a general statute, even one that is written in unqualified terms, to be implicitly limited so as not to infringe on the President’s Commander in Chief powers. Reading FISA to prohibit the NSA activities would raise two serious constitutional questions, both of which must be avoided if possible: (1) whether the signals intelligence collection the President determined was necessary to undertake is such a core exercise of Commander in Chief control over the Armed Forces during armed conflict that Congress cannot interfere with it at all and (2) whether the particular restrictions imposed by FISA are such that their application would impermissibly impede the President’s exercise of his constitutionally assigned duties as Commander in Chief. Constitutional avoidance principles require interpreting FISA, at least in the context of the military conflict authorized by the AUMF, to avoid these questions, if “fairly possible.” Even if Congress intended FISA to use the full extent of its constitutional authority to “occupy the field” of “electronic surveillance,” as FISA used that term, during peacetime, the legislative history indicates that Congress had not reached a definitive conclusion about its regulation during wartime. See H.R. Conf. Rep. No. 95-1720, at 34, reprinted in 1978 U.S.C.C.A.N. at 4063 (noting that the purpose of the fifteen-day period/ following a declaration of war in section 111 of FISA was to “allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency”). Therefore, it/ is not clear that Congress, in fact, intended to test the limits of its constitutional authority in the context of wartime electronic surveillance. Whether Congress may interfere with the President’s constitutional authority to collect foreign intelligence information through interception of communications reasonably believed to be linked to the enemy poses a difficult constitutional question. As explained in Part I, it had long been accepted at the time of FISA’s enactment that the President has inherent constitutional authority to conduct warrantless electronic surveillance for foreign intelligence purposes. Congress recognized at the time that the enactment of a statute purporting to eliminate the President’s ability, even during peacetime, to conduct warrantless electronic surveillance to collect foreign intelligence was near or perhaps beyond the limit of Congress’s Article I powers. The NSA activities, however, involve signals intelligence performed in the midst of a congressionally authorized armed conflict undertaken to prevent further hostile attacks on the United States. The NSA activities lie at the very core of the Commander in Chief power, especially in light of the AUMF’s explicit authorization for the President to take all necessary and appropriate military action to stop al Qaeda from striking again. The constitutional principles at stake here thus involve not merely the President’s well-established inherent 29/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000030 authority to conduct warrantless surveillance for foreign intelligence purposes during peacetime, but also the powers and duties expressly conferred on him as Commander in Chief by Article II. Even outside the context of wartime surveillance of the enemy, the source and scope of/ Congress’s power to restrict the President’s inherent authority to conduct foreign intelligence surveillance is unclear. As explained above, the President’s role as sole organ for the Nation in foreign affairs has long been recognized as carrying with it preeminent authority in the field of national security and foreign intelligence. The source of this authority traces to the Vesting Clause of Article II, which states that “[t]he executive Power shall be vested in a President of the United States of America.” U.S. Const. art. II, § 1. The Vesting Clause “has long been held to confer on the President plenary authority to represent the United States and to pursue its interests outside the borders of the country, subject only to limits specifically set forth in the Constitution itself and to such statutory limitations as the Constitution permits Congress to impose by exercising one of its enumerated powers.” The President’s Compliance with the “Timely Notification” Requirement of Section 501(b) of the National Security Act, 10 Op. O.L.C. 159,/ 160-61 (1986) (“Timely Notification Requirement Op.”). Moreover, it is clear that some presidential authorities in this context are beyond Congress’s ability to regulate. For example, as the Supreme Court explained in Curtiss-Wright, the President “makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.” 299 U.S. at 319. Similarly, President Washington established early in the history of the/ Republic the Executive’s absolute authority to maintain the secrecy of negotiations with foreign/ powers, even against congressional efforts to secure information. See id. at 320-21. Recognizing presidential authority in this field, the Executive Branch has taken the position that “congressional legislation authorizing extraterritorial diplomatic and intelligence activities is superfluous, and . . . statutes infringing the President’s inherent Article II authority would be/ unconstitutional.” Timely Notification Requirement Op., 10 Op. O.L.C. at 164. There are certainly constitutional limits on Congress’s ability to interfere with the President’s power to conduct foreign intelligence searches, consistent with the Constitution, within the United States. As explained above, intelligence gathering is at the heart of executive functions. Since the time of the Founding it has been recognized that matters requiring secrecy—and intelligence in particular—are quintessentially executive functions. See, e.g., The1 Federalist No. 64, at 435 (John Jay) (Jacob E. Cooke ed. 1961) (“The convention have done well therefore in so disposing of the power of making treaties, that although the president must in forming them act by the advice and consent of the senate, yet he will be able to manage the business of intelligence in such manner as prudence may suggest.”); see also Timely Notification Requirement Op., 10 Op. O.L.C. at 165; cf. New York Times Co. v. United States, 403 U.S. 713,/ 729-30 (1971) (Stewart, J., concurring) (“[I]t is the constitutional duty of the Executive—as a matter of sovereign prerogative and not as a matter of law as the courts know law—through the promulgation and enforcement of executive regulations, to protect the confidentiality necessary to carry out its responsibilities in the field of international relations and national defense.”). 30/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000031 Because Congress has rarely attempted to intrude in this area and because many of these questions are not susceptible to judicial review, there are few guideposts for determining exactly where the line defining the President’s sphere of exclusive authority lies. Typically, if a statute is in danger of encroaching upon exclusive powers of the President, the courts apply the constitutional avoidance canon, if a construction avoiding the constitutional issue is “fairly/ possible.” See, e.g., Egan, 484 U.S. at 527, 530. The only court that squarely has addressed the relative powers of Congress and the President in this field suggested that the balance tips decidedly in the President’s favor. The Foreign Intelligence Surveillance Court of Review recently noted that all courts to have addressed the issue of the President’s inherent authority have “held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002). On the basis of that unbroken line of precedent, the court “[took] for granted that the President does have that authority,” and concluded that, “assuming that is so, 14 Although the court did FISA could not encroach on the President’s constitutional power.” Id. not provide extensive analysis, it is the only judicial statement on point, and it comes from the specialized appellate court created expressly to deal with foreign intelligence issues under FISA. But the NSA activities are not simply exercises of the President’s general foreign affairs powers. Rather, they are primarily an exercise of the President’s authority as Commander in Chief during an armed conflict that Congress expressly has authorized the President to pursue. The NSA activities, moreover, have been undertaken specifically to prevent a renewed attack at the hands of an enemy that has already inflicted the single deadliest foreign attack in the Nation’s/ history. The core of the Commander in Chief power is the authority to direct the Armed Forces in conducting a military campaign. Thus, the Supreme Court has made clear that the “President alone” is “constitutionally invested with the entire charge of hostile operations.” Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 87 (1874); The Federalist No. 74, at 500 (Alexander Hamilton). “As commander-in-chief, [the President] is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem/ most effectual to harass and conquer and subdue the enemy.” Fleming v. Page, 50 U.S. (9 How.)/ 603, 615 (1850). As Chief Justice Chase explained in 1866, although Congress has authority to legislate to support the prosecution of a war, Congress may not “interfere[] with the command of1 the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief.” Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866) (Chase, C.J., concurring in judgment) (emphasis added). The Executive Branch uniformly has construed the Commander in Chief and foreign/ affairs powers to grant the President authority that is beyond the ability of Congress to regulate. In 1860, Attorney General Black concluded that an act of Congress, if intended to constrain the President’s discretion in assigning duties to an officer in the army, would be unconstitutional: As commander-in-chief of the army it is your right to decide according to your 14 In the past, other courts have declined to express a view on that issue one way or the other. See, e.g.,1 Butenko, 494 F.2d at 601 (“We do not intimate, at this time, any view whatsoever as the proper resolution of the/ possible clash of the constitutional powers of the President and Congress.”)./ 31/ VERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000032 own judgment what officer shall perform any particular duty, and as the supreme executive magistrate you have the power of appointment. Congress could not, if it would, take away from the President, or in anywise diminish the authority conferred upon him by the Constitution. Memorial of Captain Meigs, 9 Op. Att’y Gen. 462, 468 (1860). Attorney General Black went on to explain that, in his view, the statute involved there could probably be read as simply providing 15/ “a recommendation” that the President could decline to follow at his discretion. Id. at 469-70. Supreme Court precedent does not support claims of congressional authority over core military decisions during armed conflicts. In particular, the two decisions of the Supreme Court that address a conflict between asserted wartime powers of the Commander in Chief and congressional legislation and that resolve the conflict in favor of Congress—Little v. Barreme, 6/ U.S. (2 Cranch) 170 (1804), and Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)—are both distinguishable from the situation presented by the NSA activities in the/ conflict with al Qaeda. Neither supports the constitutionality of the restrictions in FISA as applied here. Barreme involved a suit brought to recover a ship seized by an officer of the U.S. Navy on the high seas during the so-called “Quasi War” with France in 1799. The seizure had been based upon the officer’s orders implementing an act of Congress suspending commerce between the United States and France and authorizing the seizure of American ships bound to a French port. The ship in question was suspected of sailing from a French port. The Supreme Court held that the orders given by the President could not authorize a seizure beyond the terms of the 15 Executive practice recognizes, consistent with the Constitution, some congressional control over the/ Executive’s decisions concerning the Armed Forces. See, e.g., U.S. Const. art. I, § 8, cl. 12 (granting Congress power “to raise and support Armies”). But such examples have not involved congressional attempts to regulate the/ actual conduct of a military campaign, and there is no comparable textual support for such interference. For/ example, just before World War II, Attorney General Robert Jackson concluded that the Neutrality Act prohibited President Roosevelt from selling certain armed naval vessels and sending them to Great Britain. See Acquisition of1 Naval and Air Bases in Exchange for Over-Age Destroyers, 39 Op. Att’y Gen. 484, 496 (1940). Jackson’s apparent/ conclusion that Congress could control the President’s ability to transfer war material does not imply acceptance of/ direct congressional regulation of the Commander in Chief’s control of the means and methods of engaging the enemy in conflict. Similarly, in Youngstown Sheet & Tube Co. v. Sawyer, the Truman Administration readily/ conceded that, if Congress had prohibited the seizure of steel mills by statute, Congress’s action would have been controlling. See Brief for Petitioner at 150, Youngstown, 343 U.S. 579 (1952) (Nos. 744 and 745). This concession implies nothing concerning congressional control over the methods of engaging the enemy. Likewise, the fact that the Executive Branch has, at times, sought congressional ratification after taking unilateral action in a wartime emergency does not reflect a concession that the Executive lacks authority in this area. A decision to seek congressional support can be prompted by many motivations, including a desire for political/ support. In modern times, several administrations have sought congressional authorization for the use of military/ force while preserving the ability to assert the unconstitutionality of the War Powers Resolution. See, e.g., Statement on Signing the Resolution Authorizing the Use of Military Force Against Iraq, 1 Pub. Papers of George Bush 40 (1991) (“[M]y request for congressional support did not . . . constitute any change in the long-standing/ positions of the executive branch on either the President’s constitutional authority to use the Armed Forces to defend vital U.S. interests or the constitutionality of the War Powers Resolution.”). Moreover, many actions for which congressional support has been sought—such as President Lincoln’s action in raising an Army in 1861—quite likely/ fall primarily under Congress’s core Article I powers. 32/ 18-1620-E-000033 Document ID: 0.7.18648.6069-000001 statute and therefore that the seizure of the ship not in fact bound to a French port was unlawful. See 6 U.S. at 177-78. Although some commentators have broadly characterized Barreme as standing for the proposition that Congress may restrict by statute the means by which the President can direct the Nation’s Armed Forces to carry on a war, the Court’s holding was limited in at least two significant ways. First, the operative section of the statute in question applied only to American merchant ships. See id. at 170 (quoting Act of February 9, 1799). Thus, the Court simply had no occasion to rule on whether, even in the limited and peculiar circumstances of the Quasi War, Congress could have placed some restriction on the orders the/ Commander in Chief could issue concerning direct engagements with enemy forces. Second, it is significant that the statute in Barreme was cast expressly, not as a limitation on the conduct of warfare by the President, but rather as regulation of a subject within the core of Congress’s enumerated powers under Article I—the regulation of foreign commerce. See U.S. Const., art. I, § 8, cl. 3. The basis of Congress’s authority to act was therefore clearer in Barreme than it is here. Youngstown involved an effort by the President—in the face of a threatened work stoppage—to seize and to run steel mills. Congress had expressly considered the possibility of giving the President power to effect such a seizure during national emergencies. It rejected that option, however, instead providing different mechanisms for resolving labor disputes and mechanisms for seizing industries to ensure production vital to national defense. For the Court, the connection between the seizure and the core Commander in Chief/ function of commanding the Armed Forces was too attenuated. The Court pointed out that the case did not involve authority over “day-to-day fighting in a theater of war.” Id. at 587. Instead, it involved a dramatic extension of the President’s authority over military operations to exercise control over an industry that was vital for producing equipment needed overseas. Justice Jackson’s concurring opinion also reveals a concern for what might be termed foreign-todomestic presidential bootstrapping. The United States became involved in the Korean conflict through President Truman’s unilateral decision to commit troops to the defense of South Korea. The President then claimed authority, based upon this foreign conflict, to extend presidential control into vast sectors of the domestic economy. Justice Jackson expressed “alarm[]” at a theory under which “a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.” Id. at 642. Moreover, President Truman’s action extended the President’s authority into a field that the Constitution predominantly assigns to Congress. See id. at 588 (discussing Congress’s/ commerce power and noting that “[t]he Constitution does not subject this lawmaking power of/ Congress to presidential or military supervision or control”); see also id. at 643 (Jackson, J.,/ concurring) (explaining that Congress is given express authority to “‘raise and support Armies’” and “‘to provide and maintain a Navy’”) (quoting U.S. Const. art. I, § 8, cls. 12, 13). Thus, Youngstown involved an assertion of executive power that not only stretched far beyond the 33/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000034 President’s core Commander in Chief functions, but that did so by intruding into areas where 16/ Congress had been given an express, and apparently dominant, role by the Constitution. The present situation differs dramatically. The exercise of executive authority involved in the NSA activities is not several steps removed from the actual conduct of a military campaign. As explained above, it is an essential part of the military campaign. Unlike the activities at issue in Youngstown, the NSA activities are directed at the enemy, and not at domestic activity that might incidentally aid the war effort. And assertion of executive authority here does not involve extending presidential power into areas reserved for Congress. Moreover,/ the theme that appeared most strongly in Justice Jackson’s concurrence in Youngstown—the fear of presidential bootstrapping—does not apply in this context. Whereas President Truman had used his inherent constitutional authority to commit U.S. troops, here Congress expressly provided the President sweeping authority to use “all necessary and appropriate force” to protect the Nation from further attack. AUMF § 2(a). There is thus no bootstrapping concern. Finally, Youngstown cannot be read to suggest that the President’s authority for engaging the enemy is less extensive inside the United States than abroad. To the contrary, the extent of the President’s Commander in Chief authority necessarily depends on where the enemy is found and where the battle is waged. In World War II, for example, the Supreme Court recognized that the President’s authority as Commander in Chief, as supplemented by Congress, included the power to capture and try agents of the enemy in the United States, even if they never had 17 In the “entered the theatre or zone of active military operations.” Quirin, 317 U.S. at 38. present conflict, unlike in the Korean War, the battlefield was brought to the United States in the most literal way, and the United States continues to face a threat of further attacks on its soil. In short, therefore, Youngstown does not support the view that Congress may constitutionally prohibit the President from authorizing the NSA activities. The second serious constitutional question is whether the particular restrictions imposed by FISA would impermissibly hamper the President’s exercise of his constitutionally assigned duties as Commander in Chief. The President has determined that the speed and agility required 18 to carry out the NSA activities successfully could not have been achieved under FISA. Because the President also has determined that the NSA activities are necessary to the defense of 16 Youngstown does demonstrate that the mere fact that Executive action might be placed in Justice Jackson’s category III does not obviate the need for further analysis. Justice Jackson’s framework therefore recognizes that Congress might impermissibly interfere with the President’s authority as Commander in Chief or to/ conduct the Nation’s foreign affairs. 17 It had been recognized long before Youngstown that, in a large-scale conflict, the area of operations/ could readily extend to the continental United States, even when there are no major engagements of armed forces/ here. Thus, in the context of the trial of a German officer for spying in World War I, it was recognized that “[w]ith the progress made in obtaining ways and means for devastation and destruction, the territory of the United States/ was certainly within the field of active operations” during the war, particularly in the port of New York, and that a/ spy in the United States might easily have aided the “hostile operation” of U-boats off the coast. United States ex1 reI. Wessels v. McDonald, 265 F. 754, 764 (E.D.N.Y. 1920). 18 In order to avoid further compromising vital national security activities, a full explanation of the basis/ for the President’s determination cannot be given in an unclassified document. 34/ VERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000035 the United States from a subsequent terrorist attack in the armed conflict with al Qaeda, FISA/ would impermissibly interfere with the President’s most solemn constitutional obligation—to defend the United States against foreign attack. Indeed, if an interpretation of FISA that allows the President to conduct the NSA/ activities were not “fairly possible,” FISA would be unconstitutional as applied in the context of this congressionally authorized armed conflict. In that event, FISA would purport to prohibit the President from undertaking actions necessary to fulfill his constitutional obligation to protect the Nation from foreign attack in the context of a congressionally authorized armed conflict with an/ enemy that has already staged the most deadly foreign attack in our Nation’s history. A statute may not “impede the President’s ability to perform his constitutional duty,” Morrison v. Olson,/ 487 U.S. 654, 691 (1988) (emphasis added); see also id. at 696-97, particularly not the/ President’s most solemn constitutional obligation—the defense of the Nation. See also In re Sealed Case, 310 F.3d at 742 (explaining that “FISA could not encroach on the President’s constitutional power”)./ Application of the avoidance canon would be especially appropriate here for several reasons beyond the acute constitutional crises that would otherwise result. First, as noted,/ Congress did not intend FISA to be the final word on electronic surveillance conducted during armed conflicts. Instead, Congress expected that it would revisit the subject in subsequent/ legislation. Whatever intent can be gleaned from FISA’s text and legislative history to set forth a comprehensive scheme for regulating electronic surveillance during peacetime, that same intent 19 Second, FISA was enacted simply does not extend to armed conflicts and declared wars. during the Cold War, not during active hostilities with an adversary whose mode of operation is to blend in with the civilian population until it is ready to strike. These changed circumstances have seriously altered the constitutional calculus, one that FISA’s enactors had already/ recognized might suggest that the statute was unconstitutional. Third, certain technological changes have rendered FISA still more problematic. As discussed above, when FISA was enacted in 1978, Congress expressly declined to regulate through FISA certain signals 20 These same intelligence activities conducted by the NSA. See supra, at pp. 18-19 & n.6. factors weigh heavily in favor of concluding that FISA would be unconstitutional as applied to the current conflict if the canon of constitutional avoidance could not be used to head off a collision between the Branches. 19 FISA exempts the President from its procedures for fifteen days following a congressional declaration of war. See 50 U.S.C. § 1811. If an adversary succeeded in a decapitation strike, preventing Congress from declaring/ war or passing subsequent authorizing legislation, it seems clear that FISA could not constitutionally continue to/ apply in such circumstances./ 20 Since FISA’s enactment in 1978, the means of transmitting communications has undergone extensive/ transformation. In particular, many communications that would have been carried by wire are now transmitted through the air, and many communications that would have been carried by radio signals (including by satellite/ transmissions) are now transmitted by fiber optic cables. It is such technological advancements that have broadened FISA’s reach, not any particularized congressional judgment that the NSA’s traditional activities in intercepting/ such international communications should be subject to FISA’s procedures. A full explanation of these/ technological changes would require a discussion of classified information. 35/ VERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000036 * * *+ As explained above, FISA is best interpreted to allow a statute such as the AUMF to/ authorize electronic surveillance outside FISA’s enumerated procedures. The strongest counterarguments to this conclusion are that various provisions in FISA and title 18, including section 111 of FISA and section 2511(2)(f) of title 18, together require that subsequent legislation must reference or amend FISA in order to authorize electronic surveillance outside/ FISA’s procedures and that interpreting the AUMF as a statute authorizing electronic surveillance outside FISA procedures amounts to a disfavored repeal by implication. At the very least, however, interpreting FISA to allow a subsequent statute such as the AUMF to authorize electronic surveillance without following FISA’s express procedures is “fairly possible,” and that is all that is required for purposes of invoking constitutional avoidance. In the competition of competing canons, particularly in the context of an ongoing armed conflict, the constitutional 21/ avoidance canon carries much greater interpretative force. IV. THE NSA ACTIVITIES ARE CONSISTENT WITH THE FOURTH AMENDMENT The Fourth Amendment prohibits “unreasonable searches and seizures” and directs that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and 21 If the text of FISA were clear that nothing other than an amendment to FISA could authorize additional/ electronic surveillance, the AUMF would impliedly repeal as much of FISA as would prevent the President from/ using “all necessary and appropriate force” in order to prevent al Qaeda and its allies from launching another/ terrorist attack against the United States. To be sure, repeals by implication are disfavored and are generally not/ found whenever two statutes are “capable of co-existence.” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018/ (1984). Under this standard, an implied repeal may be found where one statute would “unduly interfere with” the/ operation of another. Radzanower v. Touche Ross & Co., 426 U.S. 148, 156 (1976). The President’s determination that electronic surveillance of al Qaeda outside the confines of FISA was “necessary and appropriate” would create a/ clear conflict between the AUMF and FISA. FISA’s restrictions on the use of electronic surveillance would preclude the President from doing what the AUMF specifically authorized him to do: use all “necessary and/ appropriate force” to prevent al Qaeda from carrying out future attacks against the United States. The ordinary/ restrictions in FISA cannot continue to apply if the AUMF is to have its full effect; those constraints would “unduly/ interfere” with the operation of the AUMF./ Contrary to the recent suggestion made by several law professors and former government officials, the ordinary presumption against implied repeals is overcome here. Cf. Letter to the Hon. Bill Frist, Majority Leader,/ U.S. Senate, from Professor Curtis A. Bradley et al. at 4 (Jan. 9, 2006). First, like other canons of statutory/ construction, the canon against implied repeals is simply a presumption that may be rebutted by other factors,/ including conflicting canons. Connecticut National Bank v. Germain, 503 U.S. 249, 253 (1992); see also1 Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001). Indeed, the Supreme Court has declined to apply the ordinary presumption against implied repeals where other canons apply and suggest the opposite result. See Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 765-66/ (1985). Moreover, Blackfeet suggests that where the presumption against implied repeals would conflict with other, more compelling interpretive imperatives, it simply does not apply at all. See 471 U.S. at 766. Here, in light of the constitutional avoidance canon, which imposes the overriding imperative to use the tools of statutory interpretation/ to avoid constitutional conflicts, the implied repeal canon either would not apply at all or would apply with significantly reduced force. Second, the AUMF was enacted during an acute national emergency, where the type of deliberation and detail normally required for application of the canon against implied repeals was neither practical nor warranted. As discussed above, in these circumstances, Congress cannot be expected to work through every/ potential implication of the U.S. Code and to define with particularity each of the traditional incidents of the use of/ force available to the President./ 36/ 18-1620-E-000037 Document ID: 0.7.18648.6069-000001 particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. The touchstone for review of government action under the Fourth Amendment is whether the search is “reasonable.” See, e.g., Vernonia Sch. Dist. v. Acton, 515/ U.S. 646, 653 (1995). As noted above, see Part I, all of the federal courts of appeals to have addressed the issue have affirmed the President’s inherent constitutional authority to collect foreign intelligence without a warrant. See In re Sealed Case, 310 F.3d at 742. Properly understood, foreign/ intelligence collection in general, and the NSA activities in particular, fit within the “special needs” exception to the warrant requirement of the Fourth Amendment. Accordingly, the mere fact that no warrant is secured prior to the surveillance at issue in the NSA activities does not suffice to render the activities unreasonable. Instead, reasonableness in this context must be assessed under a general balancing approach, “‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’” United States v. Knights, 534 U.S. 112,/ 118-19 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). The NSA activities are reasonable because the Government’s interest, defending the Nation from another foreign attack in time of armed conflict, outweighs the individual privacy interests at stake, and because they seek to intercept only international communications where one party is linked to al Qaeda or an affiliated terrorist organization. A. THE WARRANT REQUIREMENT OF THE FOURTH AMENDMENT DOES NOT+ APPLY TO THE NSA ACTIVITIES In “the criminal context,” the Fourth Amendment reasonableness requirement “usually requires a showing of probable cause” and a warrant. Board of Educ. v. Earls, 536 U.S. 822, 828 (2002). The requirement of a warrant supported by probable cause, however, is not universal. Rather, the Fourth Amendment’s “central requirement is one of reasonableness,” and the rules the Court has developed to implement that requirement “[s]ometimes . . . require warrants.” Illinois v. McArthur, 531 U.S. 326, 330 (2001); see also, e.g., Earls, 536 U.S. at 828 (noting that the probable cause standard “is peculiarly related to criminal investigations and may be unsuited to determining the reasonableness of administrative searches where the Government seeks to prevent the development of hazardous conditions”) (internal quotation marks omitted). In particular, the Supreme Court repeatedly has made clear that in situations involving/ “special needs” that go beyond a routine interest in law enforcement, the warrant requirement is inapplicable. See Vernonia, 515 U.S. at 653 (there are circumstances “‘when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable’”) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)); see also McArthur, 531 U.S. at 330 (“When faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.”). It is difficult to encapsulate in a nutshell all of the different circumstances the Court has found to qualify as “special needs” justifying warrantless searches. But one application in which the Court has found the warrant requirement inapplicable is in circumstances in which the Government faces 37/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000038 an increased need to be able to react swiftly and flexibly, or when there are at stake interests in public safety beyond the interests in ordinary law enforcement. One important factor in/ establishing “special needs” is whether the Government is responding to an emergency that goes beyond the need for general crime control. See In re Sealed Case, 310 F.3d at 745-46./ Thus, the Court has permitted warrantless searches of property of students in public schools, see New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (noting that warrant requirement would “unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools”), to screen athletes and students involved in extracurricular activities at public schools for drug use, see Vernonia, 515 U.S. at 654-55; Earls, 536 U.S. at 829-38, to conduct drug testing of railroad personnel involved in train accidents, see Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 634 (1989), and to search probationers’ homes, see Griffin, 483 U.S. 868. Many special needs doctrine and related cases have upheld suspicionless searches or seizures. See, e.g., Illinois v. Lidster, 540 U.S. 419, 427 (2004) (implicitly relying on special needs doctrine to uphold use of automobile checkpoint to obtain information about recent hit-and-run accident); Earls, 536 U.S. at 829-38 (suspicionless drug testing of public school students involved in extracurricular activities); Michigan Dep’t of State Police v. Sitz, 496 U.S./ 444, 449-55 (1990) (road block to check all motorists for signs of drunken driving); United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (road block near the border to check vehicles for illegal immigrants); cf. In re Sealed Case, 310 F.3d at 745-46 (noting that suspicionless searches and seizures in one sense are a greater encroachment on privacy than electronic surveillance under FISA because they are not based on any particular suspicion, but “[o]n the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by questioning”). To fall within the “special needs” exception to the warrant requirement, the purpose of the search must be distinguishable from ordinary general crime control. See, e.g., Ferguson v. Charleston, 532 U.S. 67 (2001); City of Indianapolis v. Edmond, 531 U.S. 32, 41 (2000). Foreign intelligence collection, especially in the midst of an armed conflict in which the adversary has already launched catastrophic attacks within the United States, fits squarely within/ the area of “special needs, beyond the normal need for law enforcement” where the Fourth Amendment’s touchstone of reasonableness can be satisfied without resort to a warrant. Vernonia, 515 U.S. at 653. The Executive Branch has long maintained that collecting foreign intelligence is far removed from the ordinary criminal law enforcement action to which the warrant requirement is particularly suited. See, e.g., Amending the Foreign Intelligence Surveillance Act: Hearings Before the House Permanent Select Comm. on Intelligence,103d Cong. 2d Sess. 62, 63 (1994) (statement of Deputy Attorney General Jamie S. Gorelick) (“[I]t is important to understand that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the President in carrying out his foreign intelligence responsibilities. . . . [W]e believe that the warrant clause of the Fourth Amendment is inapplicable to such [foreign intelligence] searches.”); see also In re1 Sealed Case, 310 F.3d 745. The object of foreign intelligence collection is securing information necessary to protect the national security from the hostile designs of foreign powers like al Qaeda and affiliated terrorist organizations, including the possibility of another foreign attack on the United States. In foreign intelligence investigations, moreover, the targets of surveillance 38/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000039 often are agents of foreign powers, including international terrorist groups, who may be specially/ trained in concealing their activities and whose activities may be particularly difficult to detect. The Executive requires a greater degree of flexibility in this field to respond with speed and 22/ absolute secrecy to the ever-changing array of foreign threats faced by the Nation. In particular, the NSA activities are undertaken to prevent further devastating attacks on/ our Nation, and they serve the highest government purpose through means other than traditional 23 The NSA activities are designed to enable the Government to act quickly law enforcement. and flexibly (and with secrecy) to find agents of al Qaeda and its affiliates—an international terrorist group which has already demonstrated a capability to infiltrate American communities without being detected—in time to disrupt future terrorist attacks against the United States. As explained by the Foreign Intelligence Surveillance Court of Review, the nature of the/ “emergency” posed by al Qaeda “takes the matter out of the realm of ordinary crime control.” In re Sealed Case, 310 F.3d at 746. Thus, under the “special needs” doctrine, no warrant is required by the Fourth Amendment for the NSA activities. B. THE NSA ACTIVITIES ARE REASONABLE As the Supreme Court has emphasized repeatedly, “[t]he touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Knights, 534 U.S. at 118-19 (quotation marks omitted); see also Earls, 536 U.S. at 829. The Supreme Court has found a search reasonable when, under the totality of the circumstances, the importance of the governmental interests outweighs the nature and quality of the intrusion on the individual’s Fourth Amendment interests. See Knights, 534 U.S. at 118-22. Under the standard 22 Even in the domestic context, the Supreme Court has recognized that there may be significant/ distinctions between wiretapping for ordinary law enforcement purposes and domestic national security surveillance. See United States v. United States District Court, 407 U.S. 297, 322 (1972) (“Keith”) (explaining that “the focus of/ domestic [security] surveillance may be less precise than that directed against more conventional types of crime”/ because often “the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the/ enhancement of the Government’s preparedness for some possible future crisis or emergency”); see also United States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984) (reading Keith to recognize that “the governmental interests presented in national security investigations differ substantially from those presented in traditional criminal/ investigations”). Although the Court in Keith held that the Fourth Amendment’s warrant requirement does apply to investigations of purely domestic threats to national security—such as domestic terrorism, it suggested that Congress/ consider establishing a lower standard for such warrants than that set forth in Title III. See id. at 322-23 (advising that “different standards” from those applied to traditional law enforcement “may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of the Government for intelligence/ information and the protected rights of our citizens”). Keith’s emphasis on the need for flexibility applies with even greater force to surveillance directed at foreign threats to national security. See S. Rep. No. 95-701, at 16 (“Far/ more than in domestic security matters, foreign counterintelligence investigations are ‘long range’ and involve ‘the/ interrelation of various sources and types of information.’”) (quoting Keith, 407 U.S. at 322). And flexibility is/ particularly essential here, where the purpose of the NSA activities is to prevent another armed attack against the/ United States./ 23 This is not to say that traditional law enforcement has no role in protecting the Nation from attack. The/ NSA activities, however, are not directed at bringing criminals to justice but at detecting and preventing plots by a/ declared enemy of the United States to attack it again./ 39/ VERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000040 balancing of interests analysis used for gauging reasonableness, the NSA activities are consistent/ with the Fourth Amendment. With respect to the individual privacy interests at stake, there can be no doubt that, as a/ general matter, interception of telephone communications implicates a significant privacy interest of the individual whose conversation is intercepted. The Supreme Court has made clear at least since Katz v. United States, 389 U.S. 347 (1967), that individuals have a substantial and/ constitutionally protected reasonable expectation of privacy that their telephone conversations will not be subject to governmental eavesdropping. Although the individual privacy interests at stake may be substantial, it is well recognized that a variety of governmental interests—including routine law enforcement and foreign-intelligence gathering—can overcome those interests. On the other side of the scale here, the Government’s interest in engaging in the NSA activities is the most compelling interest possible—securing the Nation from foreign attack in the midst of an armed conflict. One attack already has taken thousands of lives and placed the Nation in state of armed conflict. Defending the Nation from attack is perhaps the most important function of the federal Government—and one of the few express obligations of the federal Government enshrined in the Constitution. See U.S. Const. art. IV, § 4 (“The United/ States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion . . . .”) (emphasis added); The Prize Cases, 67 U.S. (2/ Black) 635, 668 (1863) (“If war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force.”). As the Supreme Court has declared, “[i]t is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307 (1981)./ The Government’s overwhelming interest in detecting and thwarting further al Qaeda/ attacks is easily sufficient to make reasonable the intrusion into privacy involved in intercepting one-end foreign communications where there is “a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda.” Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence, available at http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html (Dec. 19, 2005) (statement of Attorney General Gonzales); cf. Edmond, 531 U.S. at 44 (noting that “the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack” because “[t]he exigencies created by th[at] scenario[] are far removed” from/ ordinary law enforcement). The United States has already suffered one attack that killed/ thousands, disrupted the Nation’s financial center for days, and successfully struck at the command and control center for the Nation’s military. And the President has stated that the NSA activities are “critical” to our national security. Press Conference of President Bush (Dec. 19, 2005). To this day, finding al Qaeda sleeper agents in the United States remains one of the preeminent concerns of the war on terrorism. As the President has explained, “[t]he terrorists want to strike America again, and they hope to inflict even more damage than they did on September 11th.” Id. 40/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000041 Of course, because the magnitude of the Government’s interest here depends in part upon the threat posed by al Qaeda, it might be possible for the weight that interest carries in the balance to change over time. It is thus significant for the reasonableness of the NSA activities that the President has established a system under which he authorizes the surveillance only for a limited period, typically for 45 days. This process of reauthorization ensures a periodic review/ to evaluate whether the threat from al Qaeda remains sufficiently strong that the Government’s interest in protecting the Nation and its citizens from foreign attack continues to outweigh the individual privacy interests at stake. Finally, as part of the balancing of interests to evaluate Fourth Amendment reasonableness, it is significant that the NSA activities are limited to intercepting international communications where there is a reasonable basis to conclude that one party to the/ communication is a member or agent of al Qaeda or an affiliated terrorist organization. This factor is relevant because the Supreme Court has indicated that in evaluating reasonableness, one should consider the “efficacy of [the] means for addressing the problem.” Vernonia, 515 U.S. at/ 663; see also Earls, 536 U.S. at 834 (“Finally, this Court must consider the nature and immediacy of the government’s concerns and the efficacy of the Policy in meeting them.”). That consideration does not mean that reasonableness requires the “least intrusive” or most “narrowly tailored” means for obtaining information. To the contrary, the Supreme Court has repeatedly rejected such suggestions. See, e.g., Earls, 536 U.S. at 837 (“[T]his Court has repeatedly stated that reasonableness under the Fourth Amendment does not require employing the least intrusive means, because the logic of such elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all search-and-seizure powers.”) (internal quotation marks omitted); Vernonia, 515 U.S. at 663 (“We have repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment.”). Nevertheless, the Court has indicated that some consideration of the efficacy of/ the search being implemented—that is, some measure of fit between the search and the desired objective—is relevant to the reasonableness analysis. The NSA activities are targeted to intercept international communications of persons reasonably believed to be members or agents of al Qaeda or an affiliated terrorist organization, a limitation which further strongly supports the reasonableness of the searches. In sum, the NSA activities are consistent with the Fourth Amendment because the warrant requirement does not apply in these circumstances, which involve both “special needs”/ beyond the need for ordinary law enforcement and the inherent authority of the President to conduct warrantless electronic surveillance to obtain foreign intelligence to protect our Nation from foreign armed attack. The touchstone of the Fourth Amendment is reasonableness, and the NSA activities are certainly reasonable, particularly taking into account the nature of the threat the Nation faces. CONCLUSION For the foregoing reasons, the President—in light of the broad authority to use military force in response to the attacks of September 11th and to prevent further catastrophic attack expressly conferred on the President by the Constitution and confirmed and supplemented by 41/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000042 Congress in the AUMF—has legal authority to authorize the NSA to conduct the signals intelligence activities he has described. Those activities are authorized by the Constitution and by statute, and they violate neither FISA nor the Fourth Amendment. 42/ AMERICAN PVERSIGHT Document ID: 0.7.18648.6069-000001 18-1620-E-000043 Bellinge rJB@state.gov Fro m: BellingerJB@state.gov Sent : Thursday, January 19, 2006 1:22 PM To: -§ 3024(m)(1) J@dni.gov Cc: Moschella, William; Scolinos , Tasia; Bradbury, Steve; Sampson , Kyle; Roehrkasse, Brian; Harriet_Miers@who.eop.gov; John_B. _ Wiegmann@nsc.eop.gov; John _ M._Mitnick@who.eop.gov; (b)(3) 50 USC § 3605 '; (b) (6) ~ Brett_ C._Gerry@who.eop.gov; Raul_F._ Yanes ~ (b) (6) I; benjamin.powell@dni.gov; haynesw William_ K._Kelley@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov; Dan_Bartlett@who.eop.gov Subje ct: RE: DOJ white paper on NSA activities - :. (b)(3) 50 USC (b) (5) ---Original Message-50 USC From: Benjam in (ma ilto-(b)(3) § 3024(m)(1) @dni.gov) Sent: Thursday, January 19, 2006 1:20 PM To: Bellinger, John B(Legal) Cc: Steve.Bradbury@usdoj.gov; Harriet_Miers@who.eop.gov; John_B._ Wiegmann@nsc.eop.gov; John_M._Mitnick@who.eop.gov; (b)(3) 50 USC § 3605 ; Brett_ C._Gerry@who.eop.gov ; Rau l_F._ Yanes@omb.eop.gov; (b) (6) haynesw ; benjamin.powell@dni.gov; William_K._Kelley@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov; Dan_ Bart lett@who.eop.gov; Kyle.Sampson@usdoj.gov; Tasia.Scolinos@usdoj.gov; William.Mosche lla@usdoj.gov; Brian.Roehrkasse@usdoj.gov Subject: Re: DOJ white paper on NSA act ivities (b) (5) John- -? Ben Bellinger , John B(Legal) wrote: >Thanks Steve. > (b) (5) > -· (b) (5) > (b) (5) > VERSIGHT Document ID: 0.7.18648.6068 18-1620-E-000044 > > >-- -Ori gina l Message -->From: Steve.Bradbury@usdo j .gov [mailto:Steve.Bradbury@usdoj.gov ) >Sent: Thursday, January 19, 2006 12:16 PM duplicate VERSIGHT Document ID: 0.7.18648.6068 18-1620-E-000045 Ha rr iet _Mie rs@w ho .eop.go v Fro m: Harriet_Miers@who.eop.gov Sent : Sunday, January 22, 2006 4:31 PM To: Brand, Rachel; Bradbury, Steve; -§ 3024(m)(1) 1@dni.gov; Matthew_ T._McDonald@who.eop.gov; Brett_ C._Gerry@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov Subject: RE: comment (b)(3) 50 USC I will ask Matt by way of this ema il, :. Perhaps we can turn the - I (b) (5) (b) (5) document around early tomorrow. -Original Message-50 USC From: Benjam in [mailto-(b)(3) § 3024(m)(1) l@dni.gov] Sent: Sunday, January 22, 2006 4:26 PM To: McDonald, Matthew T.; Gerry, Brett C.; rachel.brand@usdoj .gov; Miers, Harriet; Kavanaugh, Brett M.; Steve.Bradbury@usdoj.gov; Kavanaugh, Brett M. Subject: comment (b) (5) I would cite in particular the fo llowing: (b) (5) (b) (5) VERSIGHT Document ID: 0.7.18648.6070 18-1620-E-000046 Harriet_Miers@who.eop.gov From: Harriet_Miers@who.eop.gov Sent : Sunday , January 22, 2006 4:31 PM To: Brand, Rache l; Bradbury, Steve; Matthew_T._McDonald@who.eop.gov; 50 USC _(b)(3) § 3024(m)(1) ,@dni.gov; Brett_ C._Gerry@who.eop.gov; Brett_ M._Kavanaugh@who.eop.gov; Brett_ M._Kavanaugh@who.eop. gov Subject : RE: comment Looks like it is ok! -Original MessageFrom: McDonald, Matthew T. Sent : Sunday, January 22, 2006 4:27 PM To: ' Benjam in'; Gerry, Brett C.; rache l.brand@usdo j.gov; Miers, Harriet ; Kavanaugh , Brett M.; Steve.Bradbury@usdoj.gov ; Kavanaugh, Brett M. Subject: RE: comment Perfect. We will add that. - Original Message(b)(3) 50 USC From: Benjam in [ma ilto-§ 3024(m)(1) 1@dni.gov) Sent: Sunday, January 22, 2006 4 :26 PM duplicate VERSIGHT Document ID: 0.7.18648.6074 18-1620-E-000047 18-1620-E-000048 (b)(3) 50 USC ..§ 3024(m)(1) @dni.gov (b)(3) 50 USC Fro m: -§ 3024(m)(1) l@dni.gov Monday, Janu ary 23, 2006 9:26 AM Sent : To: Martinson, Wanda; Bradbury, St eve ; Brand, Rachel; Sampson , Kyle ; Elwood, Courtney; Dan_Bartlett@who.eop.gov; Brett_M._Kavanaug h@wh o.eop.gov ; Harr iet_M iers@ who.eop.gov ; William_K._Kelley@who.eop.gov; David_S._Addington@ovp.eop.gov ; Bellinge rJB@state.gov; Michael_Orummond@who.eop.gov; Dana_M._Perino@who.eop.gov; Heat her_M ._ Roeb ke@ who.eop.gov ; Michael_Allen@nsc.eop.gov; Shanne n_ W._ Coffin@ovp.eop.gov ; Brett_ C._Gerry@who.eop.gov; 50 USC -(b)(3) § 3024(m)(1) @dni.gov; Scott_McClellan@who.eop.gov; Matthew_ T._Mc0onald@who.eop.gov; Christal_R._ West@who.eop.gov; Candida_P._Wolff@who.eop.gov Subje ct: [Fwd: Final Version of th e Speech ] Attac hments : tmp.htm; NatlPressClub-23Jan-0915.doc final version prepared for de livery. -Original Message -Subject: Final Version of the Speec h Date: Mon, 23 Jan 2006 09:16:26 -0500 (b)(3) 50 USC § 3024(m)(1) (b)(3) 50 USC § 3024(m)(1) 50 USC § 3024(m)(1) -1 (b)(3) 50 USC § 3024(m)(1) @dni.gov>, (b)(3) (b)(3) 50 USC § 3024(m)(1) (b)(3) 50 USC § 3024(m)(1) (b)(3) 50 USC § 3024(m)(1) VERSIGHT Document ID: 0.7.18648.6077 (b)(3) 50 USC § 3024(m)(1) 18-1620-E-000049 Principal Deputy Director of National Intelligence Address to the National Press Club 23 January 2006 Good morning. I’m happy to be here to talk a bit about what American⇢ intelligence and especially NSA have been doing to defend the Nation. I’m here today not only as Ambassador Negroponte’s deputy in the Office⇢ of the Director of National Intelligence. I’m also here as the former Director of the⇢ National Security Agency, a post I took in March of 1999 and left only last spring. Serious issues have been raised in recent weeks. And discussion of serious issues should be based on facts. There is a lot of information out there —⇢ some of it is frankly inaccurate, much of it is simply misunderstood. I’m here to⇢ tell the American people what NSA has been doing and why. And, perhaps more" importantly, what it has not been doing. Admittedly, this is a little hard to do while protecting our country’s⇢ intelligence sources and methods. And people in my line of work generally don’t⇢ like to talk about what they’ve done until it’s a subject on the History Channel. But let me make one thing very clear: as challenging as this might be, this" is the speech I want to give. I much prefer being here with you today telling you about the things we have done when there hasn’t been an attack on the US Homeland. This is a far easier presentation to make than the ones I had to give four" years ago—telling audiences like you what we hadn’t done in the days and months leading up to the tragic events of September 11 th. Today’s story is not an⇢ easy one to tell in this kind of unclassified environment, but it is by far the brief I" prefer to present. We all have searing memories of the morning of September 11 th. I know I do: making a decision to evacuate non-essential workers at NSA while the situation was still unclear; seeing the NSA counter terrorist shop in tears while black out curtains were being stapled to walls around their windows; like many of you, asking my wife to find our kids and then hanging up the phone on her." Another memory comes from two days later when I addressed the NSA workforce to lay out our mission in a new environment. It was a short video talk" beamed throughout our headquarters at Fort Meade and globally. Most of what I" said was what anyone would expect. I tried to inspire. Our work was important" and the Nation was relying on us. I tried to comfort. Look on the bright side I said to them: right now a quarter billion Americans wished they had your" job…being able to go after the en emy. I ended the talk by trying to give perspective. I noted that all free peoples have had to balance the demands of 1⇥ VERSIGHT Document ID: 0.7.18648.6077-000001 18-1620-E-000050 liberty with the demands of security. Historically we Americans had planted our" flag well down the spectrum toward liberty. Here was o ur challenge. “We were⇢ going to keep America free,” I said, “by making Americans feel safe again.” But to start the story with that Thursday, September 13 th is misleading," because it is really near the end of the first reel of this movie. To understand that" moment and that statement, you would have to know a little bit about what had happened to the National Security Agency in the preceding years. NSA intercepts communications and it does so for only one purpose: to protect the lives, the liberties and the well being of the citizens of the United States from those who would do us harm. By the late 1990s, that job was" becoming increasingly more difficult. The explosion of modern communications" in terms of volume, variety and velocity threatened to overwhelm us. The Agency took a lot of criticism in those days—that it was going deaf;" that it was ossified in its thinking; that it had not and could not keep up with the" changes in modern communications. All that was only reinforced when all the" computer systems at Fort Meade went dark for three days in January of 2000 and we couldn’t quickly or easily explain why. Those were interesting times. As we were being criticized for being" incompetent and going deaf, others seemed to be claiming that we were" omniscient and reading your e-mails. The Washington Post and New Yorker Magazine during that time" incorrectly wrote that, “NSA has turned from eavesdropping on the Communists⇢ to eavesdropping on businesses and private citizens,” and that, “NSA has th e" ability to extend its eavesdropping network without limits.” We were also referred⇢ to as “a global spying network that can eavesdrop on every single phone call,⇢ fax, or e-mail, anywhere on the planet.” I used those quotes in a speech I gave at American University in February" 2000. The great “urban legend” then was something called Echelon and the⇢ false accusation that NSA was using its capabilities to advance American corporate interests: signals intelligence for General Motors or something like that. With these kinds of charges, the turf back then feels familiar now: how could we prove a negative (that we weren’t doing certain things) without revealing the appropriate things we were doing that kept America safe. You see, NSA had (and has) an existential problem. In order to protect" American lives and liberties it has to be two things: powerful in its capabilities" and secretive in its methods. And we exist in a political culture that distrusts two things most of all: power and secrecy. 2⇥ VERSIGHT Document ID: 0.7.18648.6077-000001 18-1620-E-000051 communications didn’t make this any easier. Gone were the days⇢ when “signals of interest” went along a dedicated microwave link between⇢ Modern strategic rocket forces headquarters in Moscow to an ICBM base in western" Siberia. By the late nineties, what NSA calls “targeted communications”—things" like al Qa’ida communications—co-existed out there in a great global web with your phone calls and my e-mails. NSA needed the power to pick out the one and" the discipline to leave the others alone. So this question of security and liberty wasn’t a new one for us in⇢ September 2001. We always have had this question: how do we balance the" legitimate need for foreign intelligence with our responsibility to protect individual" privacy rights? It is a question drilled into every employee of NSA from day one," and it shapes every decision about how NSA operates. September 11th didn’t change that. But it did change some things. This ability to intercept communications, commonly referred to as Signals" Intelligence (SIGINT), is a complex business with operational, technological and legal imperatives often intersecting and overlapping. There is routinely some freedom of action—within the law—to adjust operations. After the attacks I exercised some options I always had that collectively better prepared us to defend the Homeland. Let me talk about this for a minute. Because a big gap in understanding is" what’s standard—what does NSA do routinely? Where we set the threshold for what constituted “inherent foreign⇢ intelligence value” in reports involving a US person, for example, shapes the⇢ level of some of our collection and reporting. The American SIGINT system in the normal course of its foreign intelligence activities inevitably captures this kind of information—information to, from or about what we call a US person (by the way, that routinely includes anyone in the United States, citizen or not.) So, for" example, because they were in the United States Mohammad Atta and his fellow" 18 hijackers were presumed to be protected persons." “Inherent foreign intelligence value” is one of the metrics we must use to⇢ ensure that we conform to the 4th Amendment’s “reasonableness” standard when⇢ it comes to protecting the privacy of that person. If the US person information The individual is" not mentioned, or if he is, he is referred to as US person number one. If the US person is actually the named terrorist, well, that could be a different matter. isn’t relevant, the data is suppressed or what we call minimized. The standard by which we decided that—the standard of what was" relevant and valuable, and therefore what was reasonable —would" understandably change as smoke billowed from two American cities and a Pennsylvania farm field, and we acted accordingly. To somewhat oversimplify" 3⇥ VERSIGHT Document ID: 0.7.18648.6077-000001 18-1620-E-000052 the question of inherent intelligence value —to just use an example—we had a different view of Zacarias Moussaoui’s computer hard drive after the attacks than⇢ we had before. This is not unlike what happened in other areas. Prior to September 11th airline passengers were screened in one way. After September 11th, we changed how we screened passengers. Similarly, although prior to September" 11th certain communications weren’t considered valuable intelligence, it became⇢ immediately clear after September 11 that intercepting and reporting these same communications were, in fact, critical to defending the homeland. These decisions were easily within my authorities as Director of NSA under an executive order, known as Executive Order 12333, that was signed in 1981—an Executive Order that has governed NSA for nearly a quarter century. Let me summarize: in the days after 9-11, NSA was using used its" authorities and its judgment to appropriately respond to the most catastrophic" attack on the Homeland in the history of the Nation. That shouldn’t be a headline, but as near as I can tell, these actions on my⇢ part have created some of the noise in recent press coverage. Let me be clear" on this point--except that they involved NSA, these programs were not related to the authorization that the President has recently talked about. I asked to update the Congress on what NSA had been doing and I briefed the entire House Intelligence Committee on the 1st of October 2001 on what we had done under" NSA’s previously existing authorities. As part of our adjustments, we also turned on the spigot of NSA reporting" to FBI in an unprecedented way. We found that we were giving them too much data in too raw a form. We recognized it almost immediately—a question of" weeks—and made adjustments. This flow of data to the FBI has also become part of the current" background noise. Despite reports in the press of “thousands of tips a month,”⇢ our reporting has not even approached that kind of pace. I actually find all of this a little odd. After all the findings of the 9-11 Commission and other bodies about the failure to share intelligence, I’m up here⇢ feeling like I have to explain pushing data to those who might be able to use it. And it is the nature of intelligence that many tips lead nowhere but you have to go down some blind alleys to find the tips that pay off. Beyond the authorities that I exercised under the standing executive order," as the war on terror has moved forward we have aggressively used FISA warrants. The Act and the Court have provided us with important tools and we 4⇥ AMERICAN PVERSIGHT Document ID: 0.7.18648.6077-000001 18-1620-E-000053 make full use of them. Published numbers show us using the Court at record" rates and the results have been outstanding. But the revolution in telecommunications technology has extended the actual impact of the FISA regime far beyond what Congress could ever have anticipated in 1 978. And I don’t think that anyone could make the claim that the⇢ FISA statute is optimized to deal with a 9/11 or to deal with a lethal enemy who likely already had combatants inside the United States. I testified in open session to the House Intelligence Committee in April of" the year 2000. At the time I created some looks of disbelief when I said that if Usama bin Ladin crossed the bridge from Niagara Falls, Ontario to Niagara Falls," New York, there were provisions of US law that would kick in, offer him protections and affect how NSA could now cover him. At the time I was just" using this as a stark hypothetical. Seventeen months later this was about life and death." So we now come to one additional piece of NSA’s authorities: these are⇢ the activities whose existence the President confirmed several weeks ago. The authorization was based on an intelligence community assessment of a serious" and continuing threat to the homeland. The lawfulness of the actual" authorization was reviewed by lawyers at the Department of Justice and the" White House and was approved by the Attorney General. There is a certain sense of sufficiency here: authorized by the President, duly ordered, its lawfulness attested to by the Attorney General, and its content" briefed to the Congressional leadership. But we all have a personal responsibility. And in the end, NSA would have to implement this--and every operational decision the Agency makes is" made with the full involvement of its legal office. NSA professional career lawyers—and the Agency has a lot of them —⇢ have a well-deserved reputation. They’re good. They know the law. And they⇢ don’t let the Agency take many close pitches. And so, even though I knew that program had been reviewed by the White" House and the Department of Justice, I asked the three most senior and" experienced lawyers in NSA. Our enemy in the global war on terrorism doesn’t⇢ divide the United States from the rest of the world. The global" telecommunications system doesn’t make that distinction either. Our laws do—⇢ and should. How did these activities square with these facts? They reported back that they supported the lawfulness of the program —supported, not" acquiesced. This was very important to me. 5⇥ AMERICAN PVERSIGHT Document ID: 0.7.18648.6077-000001 18-1620-E-000054 A veteran NSA lawyer, now retired, told me that a correspondent had suggested to him recently that all of the lawyers connected with this program had been very careful from the outset because they knew t here would be a “day of⇢ reckoning.” The NSA lawyer replied that that had not been the case. NSA had⇢ been so careful, he said—and I’m using his words here--because in this very" focused, limited program NSA had to ensure that it dealt with privacy interests in an appropriate manner. In other words, our lawyers weren’t careful out of fear. They were careful⇢ out of a heartfelt and principled view that NSA operations had to be consistent" with bedrock legal protections. In early October 2001 I gathered key members of the NSA work force in our conference room and introduced our new operational authorities to them. With the historic culture at NSA being what it was (and is), I had to do this" personally. I told them what we were going to do and why. I also told them that" we were going to carry out the program and not go one step further. NSA’s legal⇢ and operational leadership then went into the details of our new task. The 9-11 Commission criticized our ability to link things happening in the United States with things that were happening elsewhere. In that light, there are" no communications more important to the safety of the Homeland than those affiliated with al Qa’ida with one end in the United States. The President’s⇢ authorization allows us to track this kind of call more comprehensively and more" efficiently. The trigger is quicker and a bit softer than it is for a FISA warrant but the intrusion into privacy is also limited—only international calls and only those we have a reasonable basis to believe involve al Qa’ida or one of its affiliates. The⇢ purpose of all of this is not to collect reams of intelligence but to detect and prevent attacks. The Intelligence Community has neither the time, the resources, nor the legal authority to read communications that aren’t likely to protect us, and NSA⇢ has no interest in doing so. These are communications that we have reason to believe are al Qa’ida⇢ communications, a judgment made by the American intelligence professionals" (not political appointees) most trained to understand al Qa’ida tactics,⇢ communications and aims. Their work is actively overseen by the most intense oversight regime in the history of the National Security Agency. The Agency’s conduct of the⇢ program is thoroughly reviewed by the NSA’s General Counsel and Inspector⇢ General. The program has also been reviewed by the Department of Justice for" compliance with the President’s authorization. 6⇥ AMERICAN PVERSIGHT Document ID: 0.7.18648.6077-000001 18-1620-E-000055 Oversight also includes an aggressive training program to ensure that all" activities are consistent with the letter and intent of the authorization and with the preservation of civil liberties. Let me also talk for a minute about what this program is not. It is not a driftnet over Dearborn or Lackawanna or Fremont grabbing conversations that we then sort out by these alleged keyword searches or data mining tools or other" devices that so-called experts keep talking about. This is targeted and focused. This is not about intercepting conversations between people in the United States. This is hot pursuit of communications entering or leaving the United States involving someone we believe is associated with al Qa’ida . We bring to bear all the technology we can to ensure that this is so. And if" there were an anomaly and we discovered there had been an inadvertent" intercept of a domestic-to-domestic call, that intercept would be destroyed and not reported but the incident—the inadvertent collection—would be recorded and reported. But that’s a normal NSA procedure—for at least a quarter century. And, as we always do when dealing with US person information, US" identities are expunged when they are not essential to understanding the intelligence value of reports. Again, that’s a normal NSA procedure. So let me make this clear. When you are talking to your daughter away at" State college, this program cannot intercept your conversations. And when she" takes a semester abroad to complete her Arabic studies, this program will not" intercept your conversations. Let me emphasize one more thing that this program is not. Look, I know" how hard it is to write a headline that is accurate, short and grabbing. But we should really shoot for all three attributes. “Domestic Spying” doesn’t really make it. One end of any call targeted under this program is always outside the United States. I have flown a lot in this" country and I’ve taken hundreds of domestic flights. I have never boarded a domestic flight in this country and landed in Waziristan. In the same way—and I am speaking illustratively here—if NSA had intercepted al Qa’ida ops chief Khalid Sheik Mohammed in Karachi talking to⇢ Mohammed Atta in Laurel, Maryland in say July of 2001 …if NSA had done that⇢ and the results had been made public, I’m convinced that the crawler on all the⇢ 7/24 news networks would not have been: NSA domestic spying! 7⇥ VERSIGHT Document ID: 0.7.18648.6077-000001 18-1620-E-000056 Had this program been in effect prior to 9-11, it is my professional" judgment that we would have detected some of the 9-1 1 al Qa’ida operatives the United States, and we would have identified them as such. in⇢ I’ve said earlier that this program has been successful. Clearly not every⇢ lead pans out, from this or any other source, but this program has given us" information that we would not otherwise have been able to get. It’s impossible⇢ for me to talk about this more in any public way without alerting our enemies to our tactics or what we have learned. I can’t give details without increasing the⇢ danger to Americans. On one level I wish that I could, but I can’t. Our enemy has made his intentions clear. He has declared war on us. Since September 11th al Qa’ida and its affiliates have continued to announce⇢ their intention and continue to act on their clearly stated goal of attacking" America. They have succeeded against our friends in London, Madrid, Bali," Amman, Istanbul and elsewhere. They desperately want to succeed against us. The 9-1 1 Commission told us that “Bin Laden and Islamist terrorists mean⇢ exactly what they say: to them America is the font of all evil, the ‘head of the⇢ snake’, and it must be converted or destroyed.” Bin Laden reminded us of this⇢ intention as recently as last Thursday. The people at NSA, and the rest of the Intelligence Community, are" committed to defend us against this evil and to do it in a way consistent with our" values. [We know that we can only do our jobs if we have the trust of the American people. And we can only have your trust if we are careful about how" we use our tools and resources. That sense of care is part of the fabric of the intelligence community—it helps defines who we are.] I recently went out to Fort Meade to talk to the work force involved in this" program. They know what they have contributed and they know the care with which it has been done. Even in today’s heated environment, the only concern" expressed to me was continuing their work in the defense of the nation, and" doing so in a manner that honors the law and the Constitution. As I was talking with them I looked out over their heads to see a large sign fixed to one of the pillars that breaks up their office space. The sign is visible" from almost all of the work area. It’s yellow with bold black letters. The title is" readable from 50 feet: “What Constitutes a US Person.” And that is followed by⇢ an explanation of the criteria. That has always been the fundamental tenet of privacy for NSA. And here" it was, in the center of a room, guiding the actions of a workforce determined to prevent another attack on the United States. 8⇥ VERSIGHT Document ID: 0.7.18648.6077-000001 18-1620-E-000057 Security and liberty. The people at NSA know what their job is." I know what my job is, too. I learned a lot from NSA and its culture during" my time there. But I come from a culture, too. I have been a military officer for" nearly 37 years and from the start I have taken an oath to protect and defend the Constitution of the United States. I would never violate that Constitution nor" would I abuse the rights of the American people. As Director I was the one" responsible to ensure that this program was limited in its scope and disciplined in" its application. American intelligence and especially American SIGINT is the front line of" defense in dramatically changed circumstances, circumstances in which —if we fail to do our job well and completely—more Americans will almost certainly die. The speed of operations, the ruthlessness of our enemy, the pace of modern" communications has called on us to do things and do them in ways never before" required. We have worked hard to find innovative ways to protect the American people and the liberties we hold dear. And in doing so we have not forgotten who we are. 9⇥ VERSIGHT Document ID: 0.7.18648.6077-000001 18-1620-E-000058 finalversion prepared for delivery. duplicate VERSIGHT Document ID: 0.7.18648.6077-000002 18-1620-E-000059 50 USC ..(b)(3) § 3024(m)(1) @dni.gov From: Sent: To: Subjeet: 50 USC -(b)(3) § 3024(m)(1) @dni.gov Monday, Jan uary 23, 2006 7:37 PM Bradbury, Steve; Sampson , Kyle; Brett_ C._Gerry@who.eo p.gov; Brett_M._Kavanaug h@who.eo p.gov; William_K._ Kelley@who.eo p.g,ov; Harriet_Miers @who.eo p.gov; David_S._ Addingt on@ovp.eo p.gov know AG spee ch is being revised~ (b) (5) one point that I th ink may reso nat e in a spee ch is (b) (5) (b) (5) just a th ought for your considera tion... no res ponse needed .. VERSIGHT Document ID: 0.7.18648.6073 18-1620-E-000060 Bradbury, Steve From: Sent: Bradbury, Steve Monday, January 23, 2006 9:50 PM To: (b)(3) 50 USC § 3024(m)(1), (b)(6) :'; Ce: (b)(3) 50 USC § 3024(m)(1) Sampso n, Kyle; Elwood , Courtn ey; Scali nos, Tasia (b)(3) 50 USC § 3024(m)(1) 50 USC (b)(3) 50 USC @dni.gov;llllllll@d ni.gov;-(b)(3) § 3024(m)(1) @dni.gov;-§ 3024(m)(1) @dni.gov; (b)(6) Michael Hayden (personal) Brett_ C._Ger ry@who.eo p.gov; ; (b)(3) 50 USC llllllll@d ni.gov; ' Brett_ M._ Kavanau gh@who.eo p.gov'; § 3024(m)(1) Dan_ Bartlett@wh o.eo p.gov; Mos chella, William; McNeil, Tucker {OPA); Nichols, Grant W; Bradbury, Steve Subject: Draft 7 of AG spee ch Attachments: NSASpee ch Draft 7_ 1 23pm.doc Here 's the new vers ion of the AG's spee ch, incorpora ting all comment s, includ ing AG an d WH comments, received by 9:45 pm. Very important for General Hayde n to review close ly an d provide any comments he may hav e, if poss ible, by 8:00 am. The AG is schedu led to give the spee ch at 10:30 in the morning. Thx VERSIGHT Document ID: 0.7.18648.6075 18-1620-E-000061 ____---------------(b)(6) Michael Hayden (personal) , From: (b)(6) Michael Hayden (personal) Sent: Monday, January 23, 2006 10:26 PM To: Scolinos, Tas ia; Bradbury, Steve; Sampson, Kyle ; Elwood, Courtney; (b)(3) 50 USC § 3024(m)(1), (b)(6) Ce: 50 USC Mosche lla, William; McNeil, Tucker {OPA); Nichols, Grant W;-(b)(3) § 3024(m)(1) @dni.gov; 50 USC (b)(3) 50 USC (b)(3) 50 USC -(b)(3) § 3024(m)(1) @dni.gov;-§ 3024(m)(1) @dni.gov;-• § 3024(m)(1) @dni.gov; Oan_ Bartlett@ who.eop.go v; Brett_M._Kavanaugh@who.eop.gov; Brett_ C._Gerry@who.eop.gov Subject: Re: Draft 7 of AG spee ch Attachments: tmp.htm Got it. I'll t ake a loo k. MVH VERSIGHT Document ID: 0.7.18648.6076 18-1620-E-000062 Got it. I'll take a look. MVH 18-1620-E-000063 (b)(3) 50 USC ..§ 3024(m)(1) @dni.gov Fro m: (b)(3) 50 USC Sent : -§ 3024(m)(1) l@dni.gov Tuesday , January 24, 2006 12:02 AM To : Bradbury, Steve; (b)(3) 50 USC § 3024(m)(1), (b)(6) Cc: 50 USC (b)(3) 50 USC McNeil, Tucker (OPA};Nichols, Grant W; -(b)(3) § 3024(m)(1) @dni.gov; -§ 3024(m)(1) l@dni.gov; @dni.gov; Brett_M._ Kavanaugh@who.eop.gov; Brett_ C._ Gerry@who.eop.gov (b)(3) 50 USC § 3024(m)(1) Subje ct: Re: Draft 7 of AG speech Steve - looks good to me. A few very minor nits I can provide in morning and you probably will have already caught them anyways. Have not spoken to genera l about draft 7 so this does not reflect his input. Original Message From: "Steve.Bradbury@usdo j.gov" (Steve.Bradbury@usdo j.gov] Sent: 01 23 2006 09:50 PM duplicate VERSIGHT Document ID: 0.7.18648.6078 18-1620-E-000064 Brad bury, Ste v e Fro m: Bradbury , Steve Sent : Tuesday , January 24, 2006 10:05 AM To: ' Harriet_Miers@who.eop.gov ugh@who.eop.gov ' Cc: ' Benjam in. Powe ll@DNl.gov '; ' William _ K._ Kelley@who.eop.gov ' Subject : Fw: AS PREPARED FOR DELIVERY:NSA Speech Attac hmen t s: NSA Speech - as prepared for de livery.doc Impo rtance : High '; ' Brett_C._Gerry@ wh o.eop.gov '; ' Brett_M._Kavana -Original MessageFrom: Nichols, Grant W To: Sampson , Kyle ; Elwood , Courtney ; Roper, Matt M ; Nowacki, John ; Peterson, Evan ; Bradbury, Steve CC: Scolinos, Tasia ; Roehrkasse , Brian ; McNeil, Tucker (OPA) ; Sours , Raquel Sent: Tue Jan 24 09:51:00 2006 Subject: AS PREPARED FOR DELIVERY:NSA Speech Topic: Date: NSA Speech Tuesday, January 24, 2006 - 10:30 AM Please let me know if you have any quest ions. Thank you. Grant (202) 514-5611 - office (b) (6) . - cell VERSIGHT Document ID: 0.7.18648.6097 18-1620-E-000065 PREPARED REMARKS FOR ATTORNEY GENERAL ALBERTO R. GONZALES AT THE GEORGETOWN UNIVERSITY LAW CENTER “Intercepting Al Qaeda: A Lawful and Necessary Tool for Protecting America” WASHINGTON, D.C. TUESDAY, JANUARY 24th, 20064 Thank you, Dean. Just after dawn on September 11th, 2001, I flew out of4 Dulles Airport less than an hour before the departure from the4 same airport of American Airlines Flight 77, the plane that was4 hijacked and crashed into the Pentagon later that morning. When I arrived in Norfolk, Virginia, to give a speech, the North4 Tower of the World Trade Center had been hit. By the end of my4 remarks, both the North and South Towers stood shrouded in4 smoke and flames with many desperate people jumping to their4 deaths, some 90 stories below. I spent much of the rest of that4 horrible day trying to get back to Washington to assist the4 President in my role as White House Counsel.4 Everyone has a story from that morning. Up and down the4 East Coast, men and women were settling into their desks,4 coming home from a graveyard shift, or taking their children to4 school. And across the rest of the country, Americans were4 waking up to smoldering ruins and the images of ash covered4 faces. We remember where we were, what we were doing … and4 how we felt on that terrible morning, as 3,000 innocent men,4 women, and children died, without warning, without being able4 1 AMERICAN PVERSIGHT Document ID: 0.7.18648.6097-000001 18-1620-E-000066 to look into the faces of their loved ones and say goodbye . . . all4 killed just for being Americans.4 The open wounds so many of us carry from that day are4 the backdrop to the current debate about the National Security4 Agency’s terrorist surveillance program. This program, described by the President, is focused on international communications where experienced intelligence experts have4 reason to believe that at least one party to the communication is4 a member or agent of al Qaeda or a terrorist organization4 affiliated with al Qaeda. This program is reviewed and4 reauthorized by the President approximately every 45 days. The4 leadership of Congress, including the leaders of the Intelligence4 Committees of both Houses of Congress, have been briefed4 about this program more than a dozen times since 2001. A word of caution here. This remains a highly classified4 program. It remains an important tool in protecting America. So4 my remarks today speak only to those activities confirmed4 publicly by the President, and not to other purported activities4 described in press reports. These press accounts are in almost4 every case, in one way or another, misinformed, confusing, or4 wrong. And unfortunately, they have caused concern over the4 potential breadth of what the President has actually authorized. It seems that everyone who has heard of actions has an opinion the President’s – as well we should regarding matters of4 national security, separation of powers, and civil liberties. Of4 course, a few critics are interested only in political gains. Other doubters hope the President will do everything he can to protect4 our country, but they worry about the appropriate checks upon a4 Commander in Chief’s ability to monitor the enemy in a time of war.4 2 AMERICAN PVERSIGHT Document ID: 0.7.18648.6097-000001 18-1620-E-000067 Whatever your opinion, this much is clear: No one is4 above the law. We are all bound by the Constitution, and no4 matter the pain and anger we feel from the attacks, we must all abide by the Constitution. During my confirmation hearing, I4 said that, quote, “we are very, very mindful of Justice O’Connor’s statement in the 2004 Hamdi decision that a state of4 war is not a blank check for the President of the United States4 with respect to the rights of American citizens. I understand that4 and I agree with that.” Close quote. The President takes4 seriously his obligations to protect the American people and to4 protect the Constitution, and he is committed to upholding both4 of those obligations. I’ve noticed that through all of the noise on this topic, very4 few have asked that the terrorist surveillance program be4 stopped. The American people are, however, asking two4 important questions: Is this program necessary? And is it4 lawful? The answer to each is yes. ***4 The question of necessity rightly falls to our nation’s military leaders. You’ve heard the President declare: We are a4 nation at war. And in this war, our military employs a wide variety of tools4 and weapons to defeat the enemy. General Mike Hayden, Principal Deputy Director of National Intelligence and former4 Director of the NSA, laid out yesterday why a terrorist4 surveillance program that allows us to quickly collect important4 information about our enemy is so vital and necessary to the4 War on Terror. 3 VERSIGHT Document ID: 0.7.18648.6097-000001 18-1620-E-000068 The conflict against al Qaeda is, in fundamental respects, a4 war of information. We cannot build walls thick enough, fences4 high enough, or systems strong enough to keep our enemies4 out of our open and welcoming country. Instead, as the bipartisan 9/11 and WMD Commissions have urged, we must4 understand better who they are and what they’re doing – we4 have to collect more dots, if you will, before we can “connect the dots.” This program to surveil al Qaeda is a necessary weapon4 as we fight to detect and prevent another attack before it4 happens. I feel confident that is what the American people4 expect … and it’ s what the terrorist surveillance program provides. As General Hayden explained yesterday, many men and4 women who shoulder the daily burden of preventing another terrorist attack here at home are convinced of the necessity of4 this surveillance program.4 *** Now, the legal authorities. As Attorney General, I am4 primarily concerned with the legal basis for these necessary4 military activities. I expect that as lawyers and law students, you4 are too. The Attorney General of the United States is the chief legal advisor for the Executive Branch. Accordingly, from the outset,4 the Justice Department thoroughly examined this program4 against al Qaeda, and concluded that the President is acting4 within his power in authorizing it. These activities are lawful. The Justice Department is not alone in reaching that conclusion. Career lawyers at the NSA and the NSA’s Inspector General have 4 VERSIGHT Document ID: 0.7.18648.6097-000001 18-1620-E-000069 been intimately involved in reviewing the program and ensuring4 its legality. The terrorist surveillance program is firmly grounded in the4 President’s constitutional authorities. No other public official – no mayor, no governor, no member of Congress -- is charged by4 the Constitution with the primary responsibility for protecting4 the safety of all Americans – and the Constitution gives the4 President all authority necessary to fulfill this solemn duty. It has long been recognized that the President’s constitutional powers include the authority to conduct4 warrantless surveillance aimed at detecting and preventing4 armed attacks on the United States. Presidents have uniformly4 relied on their inherent power to gather foreign intelligence for4 reasons both diplomatic and military, and the federal courts4 have consistently upheld this longstanding practice. If this is the case in ordinary times, it is even more so in4 the present circumstances of our armed conflict with al Qaeda4 and its allies. The terrorist surveillance program was authorized4 in response to the deadliest foreign attack on American soil, and4 it is designed solely to prevent the next attack. After all, the goal4 of our enemy is to blend in with our civilian population in order4 to plan and carry out future attacks within America. We cannot4 forget that the 9/11 hijackers were in our country, living in our4 communities. The President’s authority to take military action—including4 the use of communications intelligence targeted at the enemy— does not come merely from his inherent constitutional powers. It comes directly from Congress as well. 5 AMERICAN PVERSIGHT Document ID: 0.7.18648.6097-000001 18-1620-E-000070 Just a few days after the events of September 11th,4 Congress enacted a joint resolution to support and authorize a4 military response to the attacks on American soil. In this4 resolution, the Authorization for Use of Military Force, Congress4 did two important things. First, it expressly recognized the4 President’s “authority under the Constitution to take action to deter and prevent acts of international terrorism against the4 United States.” Second, it supplemented that authority by authorizing the President to, quote, “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided4 the terrorist attacks” in order to prevent further attacks on the4 United States. The Resolution means that the President’s authority to use military force against those terrorist groups is at its maximum4 because he is acting with the express authorization of Congress. Thus, were we to employ the three-part framework of Justice4 Jackson’s concurring opinion in the Youngstown Steel Seizure4 case, the President’s authority falls within Category One, and is4 at its highest. He is acting “pursuant to an express or implied authorization of Congress,” and the President’s authority “includes all that he possesses in his own right [under the Constitution] plus all that Congress can” confer on him. In 2004, the Supreme Court considered the scope of the4 Force Resolution in the Hamdi case. There, the question was4 whether the President had the authority to detain an American4 citizen as an enemy combatant for the duration of the hostilities. In that case, the Supreme Court confirmed that the4 expansive language of the Resolution —“all necessary and4 appropriate force”—ensures that the congressional 6 VERSIGHT Document ID: 0.7.18648.6097-000001 18-1620-E-000071 authorization extends to traditional incidents of waging war. And, just like the detention of enemy combatants approved in4 Hamdi, the use of communications intelligence to prevent4 enemy attacks is a fundamental and well-accepted incident of4 military force. This fact is borne out by history. This Nation has a long4 tradition of wartime enemy surveillance—a tradition that can be4 traced to George Washington, who made frequent and effective4 use of secret intelligence, including the interception of mail4 between the British and Americans. And for as long as electronic communications have4 existed, the United States has conducted surveillance of those4 communications during wartime—all without judicial warrant. In4 the Civil War, for example, telegraph wiretapping was common,4 and provided important intelligence for both sides. In World War4 I, President Wilson ordered the interception of all cable4 communications between the United States and Europe; he4 inferred the authority to do so from the Constitution and from a4 general congressional authorization to use military force that did4 not mention anything about such surveillance. So too in World4 War II; the day after the attack on Pearl Harbor, President4 Roosevelt authorized the interception of all communications4 traffic into and out of the United States. The terrorist4 surveillance program, of course, is far more focused, since it4 involves only the interception of international communications4 that are linked to al Qaeda or its allies. Some have suggested that the Force Resolution did not4 authorize intelligence collection inside the United States. That4 contention cannot be squared with the reality of the 9/11 attacks,4 which gave rise to the Resolution, and with the language of the4 7 VERSIGHT Document ID: 0.7.18648.6097-000001 18-1620-E-000072 authorization itself, which calls on the President to protect4 Americans both “at home and abroad” and to take action to4 prevent further terrorist attacks “against the United States.” It’s also contrary to the history of wartime surveillance, which has4 often involved the interception of enemy communications into4 and out of the United States. Against this backdrop, the NSA’s focused terrorist surveillance program falls squarely within the broad4 authorization of the Resolution even though, as some have4 argued, the Resolution does not expressly mention surveillance. also doesn’t mention detention of enemy4 combatants. But we know from the Supreme Court’s decision in Hamdi that such detention is authorized. Justice O’Connor reasoned: “Because detention to prevent a combatant's return The Resolution to the battlefield is a fundamental incident of waging4 war… Congress has clearly and unmistakably authorized4 detention in the narrow circumstances considered here.” As Justice O’Connor recognized, it does not matter that the4 Force Resolution nowhere specifically refers to the detention of4 U.S. citizens as enemy combatants. Nor does it matter that4 individual Members of Congress may not have specifically4 intended to authorize such detention. The same is true of4 electronic surveillance. It is a traditional incident of war and,4 thus, as Justice O’Connor said, it is “of no moment” that the4 Resolution does not explicitly mention this activity. These omissions are not at all surprising. In enacting the4 Force Resolution, Congress made no attempt to catalog every4 aspect of the use of force it was authorizing. 8 AMERICAN PVERSIGHT Document ID: 0.7.18648.6097-000001 18-1620-E-000073 Instead, following the model of past military force4 authorizations, Congress—in general, but broad, terms— confirmed the President’s authority to use all traditional and4 legitimate incidents of military force to identify and defeat the4 enemy. In doing so, Congress must be understood to have4 intended that the use of electronic surveillance against the4 enemy is a fundamental component of military operations. *** Some contend that even if the President has constitutional authority to engage in the surveillance of our enemy in a time of4 war, that authority has been constrained by Congress with the4 passage in 1978 of the Foreign Intelligence Surveillance Act. Generally, FISA requires the government to obtain an order from4 a special FISA court before conducting electronic surveillance. It is clear from the legislative history of FISA that there were4 concerns among Members of Congress about the4 constitutionality of FISA itself.4 For purposes of this discussion, because I cannot discuss4 operational details, I'm going to assume here that intercepts of4 al Qaeda communications under the terrorist surveillance4 program fall within the definition of “electronic surveillance” in FISA. The FISA Court of Review, the special court of appeals4 charged with hearing appeals of decisions by the FISA court, stated in 2002 that, quote, “[w]e take for granted that the President does have that [inherent] authority” and, “assuming4 that is so, FISA could not encroach on the President’s constitutional power.” We do not have to decide whether, when4 we are at war and there is a vital need for the terrorist4 9 AMERICAN PVERSIGHT Document ID: 0.7.18648.6097-000001 18-1620-E-000074 surveillance program, FISA unconstitutionally encroaches places an unconstitutional constraint upon – or – the President's4 Article II powers. We can avoid that tough question because4 Congress gave the President the Force Resolution, and that statute removes any possible tension between what Congress4 said in 1978 in FISA and the President's constitutional authority4 today. Let me explain by focusing on certain aspects of FISA that4 have attracted a lot of attention and generated a lot of confusion4 in the last few weeks. First, FISA, of course, allows Congress to respond to new threats through separate legislation. FISA bars persons from4 intentionally “engag[ing] . . . in electronic surveillance under color of law except as authorized by statute.” For the reasons I have already discussed, the Force Resolution provides the4 relevant statutory authorization for the terrorist surveillance4 program. Hamdi makes it clear that the broad language in the4 Resolution can satisfy a requirement for specific statutory4 authorization set forth in another law. Hamdi involved a statutory prohibition on all detention of4 U.S. citizens except as authorized “pursuant to an Act of Congress.” Even though the detention of a U.S. citizen involves4 a deprivation of liberty, and even though the Force Resolution4 says nothing on its face about detention of U.S. citizens, a4 majority of the members of the Court nevertheless concluded4 that the Resolution satisfied the statutory requirement. The4 same is true, I submit, for the prohibition on warrantless4 electronic surveillance in FISA. 10 AMERICAN PVERSIGHT Document ID: 0.7.18648.6097-000001 18-1620-E-000075 You may have heard about the provision of FISA that allows the President to conduct warrantless surveillance for 154 days following a declaration of war. That provision shows that4 Congress knew that warrantless surveillance would be essential4 in wartime. But no one could reasonably suggest that all such4 critical military surveillance in a time of war would end after only4 15 days. Instead, the legislative history of this provision makes it4 clear that Congress elected NOT TO DECIDE how surveillance4 might need to be conducted in the event of a particular armed4 conflict. Congress expected that it would revisit the issue in4 light of events and likely would enact a special authorization4 during that 15-day period. That is exactly what happened three4 days after the attacks of 9/11, when Congress passed the Force4 Resolution, permitting the President to exercise “all necessary and appropriate” incidents of military force. Thus, it is simply not the case that Congress in 19784 anticipated all the ways that the President might need to act in4 times of armed conflict to protect the United States. FISA, by its4 own terms, was not intended to be the last word on these critical issues. Second, some people have argued that, by their terms, Title III and FISA are the "exclusive means" for conducting4 electronic surveillance. It is true that the law says that Title III4 and FISA are "the exclusive means by which electronic4 surveillance . . . may be conducted." But, as I have said before,4 FISA itself says elsewhere that the government cannot engage4 in electronic surveillance "except as authorized by statute." It is4 noteworthy that, FISA did not say "the government cannot4 engage in electronic surveillance 'except as authorized by FISA4 11 VERSIGHT Document ID: 0.7.18648.6097-000001 18-1620-E-000076 and Title III.'" No, it said, except as authorized by statute -- any4 statute. And, in this case, that other statute is the Force4 Resolution. Even if some might think that’s not the only way to read the statute, in accordance with long recognized canons of4 construction, FISA must be interpreted in harmony with the4 Force Resolution to allow the President, as Commander in Chief4 during time of armed conflict, to take the actions necessary to4 protect the country from another catastrophic attack. So long as4 such an interpretation is “fairly possible,” the Supreme Court has made clear that it must be adopted, in order to avoid the4 serious constitutional issues that would otherwise be raised. Third, I keep hearing, “Why not FISA?” “Wh y didn’t the4 President get orders from the FISA court approving these NSA4 intercepts of al Qaeda communications?” we’re talking about a wartime4 It is an “early warning system” We have to remember that foreign intelligence program. with only one purpose: To detect and prevent the next attack on4 the United States from foreign agents hiding in our midst. It is4 imperative for national security that we can detect RELIABLY, IMMEDIATELY, and WITHOUT DELAY whenever communications associated with al Qaeda enter or leave the4 United States. That may be the only way to alert us to the4 presence of an al Qaeda agent in our country and to the4 existence of an unfolding plot. Consistent with the wartime intelligence nature of this4 program, the optimal way to achieve the necessary speed and4 agility is to leave the decisions about particular intercepts to the4 judgment of professional intelligence officers, based on the best4 12 AMERICAN PVERSIGHT Document ID: 0.7.18648.6097-000001 18-1620-E-000077 available intelligence information. They can make that call4 quickly. If, however, those same intelligence officers had to4 navigate through the FISA process for each of these intercepts,4 that would necessarily introduce a significant factor of DELAY, and there would be critical holes in our early warning system. Some have pointed to the provision in FISA that allows for4 so-called “emergency authorizations” of surveillance for 72 hours without a court order. There’s a serious misconception about these emergency authorizations. People should know that we do not approve emergency authorizations without knowing that we will receive court approval within 72 hours. FISA requires the Attorney General to determine IN ADVANCE4 that a FISA application for that particular intercept will be fully4 supported and will be approved by the court before an4 emergency authorization may be granted. That review process4 can take precious time.4 Thus, to initiate surveillance under a FISA emergency4 authorization, it is not enough to rely on the best judgment of4 our intelligence officers alone. Those intelligence officers would4 have to get the sign-off of lawyers at the NSA that all provisions4 of FISA have been satisfied, then lawyers in the Department of4 Justice would have to be similarly satisfied, and finally as4 Attorney General, I would have to be satisfied that the search4 meets the requirements of FISA. And we would have to be4 prepared to follow up with a full FISA application within the 724 hours. A typical FISA application involves a substantial process in4 its own right: The work of several lawyers; the preparation of a4 legal brief and supporting declarations; the approval of a4 Cabinet-level officer; a certification from the National Security4 13 AMERICAN PVERSIGHT Document ID: 0.7.18648.6097-000001 18-1620-E-000078 Adviser, the Director of the FBI, or another designated Senateconfirmed officer; and, finally, of course, the approval of an4 Article III judge. We all agree that there should be appropriate checks and4 balances on our branches of government. The FISA process4 makes perfect sense in almost all cases of foreign intelligence4 monitoring in the United States. Although technology has4 changed dramatically since FISA was enacted, FISA remains a4 vital tool in the War on Terror, and one that we are using to its4 fullest and will continue to use against al Qaeda and other foreign threats. But as the President has explained, the terrorist4 surveillance program operated by the NSA requires the4 maximum in speed and agility, since even a very short delay4 may make the difference between success and failure in4 preventing the next attack. And we cannot afford to fail. *** Finally, let me explain why the NSA’s terrorist surveillance4 program fully complies with the Fourth Amendment, which4 prohibits unreasonable searches and seizures.4 The Fourth Amendment has never been understood to4 require warrants in all circumstances. For instance, before you4 get on an airplane, or enter most government buildings, you and4 your belongings may be searched without a warrant. There are4 also searches at the border or when you’ve been pulled over at a4 checkpoint designed to identify folks driving while under the4 influence. Those searches do not violate the Fourth Amendment4 because they involve “special needs” beyond routine law enforcement. The Supreme Court has repeatedly held that these4 14 AMERICAN PVERSIGHT Document ID: 0.7.18648.6097-000001 18-1620-E-000079 circumstances make such a search reasonable even without a4 warrant. The terrorist surveillance program is subject to the checks4 of the Fourth Amendment, and it clearly fits needs” category. within this “special This is by no means a novel conclusion. The4 Justice Department during the Clinton Administration testified in4 1994 that the President has inherent authority under the4 Constitution to conduct foreign intelligence searches of the4 private homes of U.S. citizens in the United States without a4 warrant, and that such warrantless searches are permissible4 under the Fourth Amendment. The key question, then, under the Fourth Amendment is4 not whether there was a warrant, but whether the search was4 reasonable. This requires balancing privacy with the4 government’s interests – and ensuring that we maintain4 appropriate safeguards. We’ve done that here. No one takes lightly the concerns that have been raised4 about the interception of communications inside the United4 States. But this terrorist surveillance program involves4 intercepting the international communications of persons4 reasonably believed to be members or agents of al Qaeda or affiliated terrorist organizations. This surveillance is narrowly4 focused and fully consistent with the traditional forms of enemy4 surveillance found to be necessary in all previous armed4 conflicts. The authorities are reviewed approximately every 454 days to ensure that the al Qaeda threat to the national security4 of this nation continues to exist. Moreover, the standard applied4 ; “reasonable basis to believe” ; is essentially the same as the traditional Fourth Amendment probable cause standard. As the4 15 VERSIGHT Document ID: 0.7.18648.6097-000001 18-1620-E-000080 Supreme Court has stated, “The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.” If we conduct this reasonable surveillance – while taking4 special care to preserve civil liberties as we have – we can all continue to enjoy our rights and freedoms for generations to4 come. ***4 I close with a reminder that just last week, al Jazeera aired4 an audio tape in which Osama bin Laden promised a new round4 of attacks on the United States. Bin Laden said the proof of his4 promise is, and I quote, “the explosions you have seen in the4 capitals of European nations.” He continued, quote, “The delay4 in similar operations happening in America has not been4 because of failure to break through your security measures. The4 operations are under preparation and you will see them in your homes the minute they are through with preparations.” Close4 quote. We’ve seen and heard these types of warnings before. we’ve seen what the result of those preparations can be – And4 thousands of our fellow citizens who perished in the attacks of4 9/11.4 This Administration has chosen to act now to prevent the4 next attack, rather than wait until it is too late. This4 Administration has chosen to utilize every necessary and lawful tool at its disposal. It is hard to imagine a President who4 wouldn’t elect to use these tools in defense of the American4 people – in fact, I think it would be irresponsible to do otherwise. 16 VERSIGHT Document ID: 0.7.18648.6097-000001 18-1620-E-000081 The terrorist surveillance program is both necessary and4 lawful. Accordingly, the President has done with this lawful authority the only responsible thing: use it. He has exercised,4 and will continue to exercise, his authority to protect Americans4 and the cherished freedoms of the American people. Thank you. May God continue to bless the United States of4 America. ### 17 AMERICAN PVERSIGHT Document ID: 0.7.18648.6097-000001 18-1620-E-000082 50 USC ..(b)(3) § 3024(m)(1) @dni.gov From: Sent: 50 USC -(b)(3) § 3024(m)(1) @dni.gov Thursday, January 26, 2006 2:25 PM Bran d_, Rachel; Bradbury, Steve; Sampson, Kyle; Micha el_Allen@nsc.eo p.gov; 50 USC (b)(3) 50 USC ;-(b)(3) § 3024(m)(1) @dni.gov;- § 3024(m)(1) @dni.gov; William_K._ Kelley@who.eo p.gov; Oavid_S._ Addington@ovp.eo p.gov; 50 USC (b) (6) ;-(b)(3) Raul_F._ Yanes § 3024(m)(1) @dni.gov; Brett_M._Kavanaugh@who.eo p.gov; Shannen_ W._ Coffin@ovp.eo p.go v; Oana_M._Perino@who.eo p.gov To: (b)(3) 50 USC § 3024(m)(1), (b)(6) Subject: Posner Attachments: tmp.htm ; tmp. gif; tmp.gif; tmp.gif; tmp.gif; tmp. gif; tmp.gif; tmp.gif fyi. WHAT IF WIRETAPPING WORKS? Wire Trap by Richard A. Posner Post dat e : 01.26.06 Issue dat e : 02.06.0 6 he revelat ion by The New York Times that th e Nationa l Security Agency {NSA} is conducting a se cret program of electronic surveillanc e outside the framework of th e Foreign Intelligen ce Surveillanc e Act (fisa} ha s sparked a hot de ba te in th e press an d in the blogosp here . But there is something odd about the de bat e: It is aridly lega l. Civil libertarian s contend that the progr am is illega l, even uncon stit utiona l; some want Pres ide nt Bush impea ched for breaking th e law. The administration and its defe nders have res ponded that the program is perfe ctly leg al; if it does violate fisa {the administrat ion de nies that it does }, then , to that extent, the law is unconstitut iona l. This leg al de bat e is complex, even es oteric. But, apart from a han dful of not very impress ive an ecdotes (did the NSAprogram rea lly prevent the Brooklyn Bridge from being des troyed by blowtorches ?}, th ere has bee n little discuss ion of th e program 's conc rete value as a counterterrorism measure or of the inroads it ha s or has not made on liberty or privacy. Not only are these -ques tions more importa nt to most peo ple than the lega l ques tions ; th e y are fundamen ta l t o th ose ques tions . Lawyers who are busily de bat ing lega lity with out first trying t o assess th e conseq uences of th e program have put the cart before the horse . Law in SIGHT Document ID: 0.7.18648.6103 18-1620-E-000083 the United States is not a Platonic abstract ion but a tlexible tool ot social policy. In ana lyzing all but the simples t lega l ques tions, one is well ad vised to beg in by ask ing what social policies are at stake. Suppose th e NSApro gram is vital to the nation' s defense , and its impingements on civil libert ies are slight. That would not prove th e program 's lega lity, becau se not every good thin g is leg al; law and policy are not perfect ly aligned. But a conviction that the program ha d grea t merit would s hap e and hone the lega l inquiry. We would searc h harder for grounds to affirm its leg ality, and, if our sear ch were to fail, at leas t we wo,uld know how to chan ge the law-or how to change the program to make it comply with the law--without des troying its effec tiveness . Similarly, if the program 's contribution to national se curity were neg lig ible-as we learn , also from the Times , that some FBIpersonnel are indiscreetly whispering-and it is undermining our civil libert ies , this would push the lega l ana lysis in the oppos ite direction. Rona ld Dworkin, th e distinguished lega l philosop he r and const itutiona l th eorist, wrote in The New York Review of Books in the aftermath of the September 11 attacks that "we cann ot allow our Constitution and our sha red se nse of de cen cy t o become a suicide pact." He would doubtless have sa id th e same thing about fisa. If you app roach lega l issues in that spirit rather th an in th e spirit of ruat cae lum fiat iusticia (let the heavens fall so long as justice is done ), you will want to know how close t o suicide a part icular lega l interpretat ion will bring you before you de cide whether t o embrac e it. The lega l critics of the surve illance program have not do ne this, and the defe nders have for the most part been content to play on the critics' turf. ash ington , D.C., wbich happ ens to be the home of The New Republic, could be des troyed by an atom ic bomb the size of a suitcase. Portions of th e city could be rendered uninhabitabl e, perhaps for decades , mere ly by the explosion of a conventional bomb that had been coated with radioact ive material. The sma llpox virus--bioeng ineered to•make it even more toxic an d the vaccine aga inst it ineffectua l, then aeroso lized an d spra yed in a majorairport--could killmillions of people. Ourterrorist enemies have the will to do such things. They may soon have the means as well. Access to weapons of mass des truction is becom ing ever eas ier. With th e September 11 attacks now more than four years in th e past , forgetf ulness and complacency a re the order of the da y. Are we safer t oda y, or do we just fee l safer? The terrorist leaders , scatt ered by our invas ion of Afghani stan and by our stepped -up efforts at counterterror ism (including the NSAprogram), may even now be regroup ing an d prepar ing an attack that will produce des truction on a scale to dwarf September 11. Osama bin Laden's latest aud iotap e claims th at Al Qaeda is plann ing new attacks on the United States. The next terrorist attack (if th ere is one ) will likely be mount ed , as the last one was, from within the United Stat es but orches trated by V Document ID: 0.7.18648.6103 I 18-1620-E-000084 leaders safe ly ensconc ed abroad. So suppose the NSAlearns the phone number of a suspected terrorist in a fore ign country. If the NSAjust want s to listen to his calls to others abroad, fisa doesn 't require a warrant. But it does if either (a) one party t o the call is in the United States and th e intercept ion takes plac e here or (b) th e party on the U.S. side of th e conversat ion is a "U.S person "--primarily either a citizen or a perma nent res iden t. If both part ies are in the United States , no warrant can be issued ; intercept ion is prohibited . The problem with fisa is that, in order to ge t a warrant , the governmen t must have grounds to be lieve the "U.S. person" it wishes t o monitor is a foreign spy or a terror ist. Even if a person is here on a studen t or tourist visa , or on no visa , the governmen t can't ge t a warrant to find out whether he is a t errorist; it must already have a reason t o believe he is one. As far as an outsider can tell, the NSAprogram is des igned to fill these gaps by conduct ing warrantless interceptions of commun icat ions in which one party is in the United States (whether or not he is a "U.S. person" ) and the oth er party is abroad and suspected of being a t errorist. But there may be more to the program. Once a phone number in the United States was disco vered to have been called by a terrorist suspec t abroad , th e NSAwould probab ly want to conduct a computer searc h of all internat iona l calls to and from that loca l number for susp icious patterns or content. A computer sear ch does not invade privacy or violate fisa, because a computer program is not a se ntien t being. But, if the program picked out a conversa tion that seemed likely to have inte llige nce value and an inte lligence officer want ed to scru tinize it, he would come up aga inst fisa 's limitat ions. One can imag ine an even broader surve illance program , in which all electronic communicat ions were scanned by compu ters for susp icious messages that would then be scru tinized by an intelligence officer, but, aga in, he would be opera ting outside th e frame work creat ed by fisa . The benefits of such programs are eas y t o see . At worst, they might cau se t errorists t o abandon or grea tly curtail their use of telephone , e-ma il, and other means of commun icat ing electronically with peop le in the United States. That would be a boon t o us, because it is far more difficult for terrorist leaders to orchestrate an attack when communicat ing by cour ier. At bes t, our ene mies might cont inue commun icat ing ele.ctronically in the mistaken be lief that, through use of code words or elect ronic encryption, they could thwart the NSA. So th e problem with fisa is that the surve illance it author izes is unusa ble to disco ver who is a terrorist, as distinct from ea vesdropp ing on known t errorist s- yet the former is the more urgen t ta sk. Even t o conduct fisa-comp liant surve illance of non-U.S. persons, you have t o know beforehand whether th ey are agents of a terrorist group, when what you rea lly want to know is who those agents are. Fisa 's limitat ions are borrowed from law enfor cemen t. When crimes are ' ' " •• • I ,I VERSIGHT Document ID: 0.7.18648.6103 ... 18-1620-E-000085 committed , th ere a re usua lly suspe cts, and electronic surveillance can be used to na il them. In counterterror ist intelligen ce, you don't know whom to suspec t-y ou need surve illance t o find out. The recen t lea ks from within the FBI, express ing skep ticism about the NSAprogram , reflect the FBl's cont inuing inab ility to interna lize intelligence values. Crimina l invest iga tions are narro wly focused and usua lly fruitful. Inte lligence is a sear ch for the need le in the haystack. FBI agen ts don't like be ing asked to cha se down clues glea ned from th e NSA's intercept ions, because 99 out of 100 (maybe even a higher percen ta ge } turn out to lead nowhere. The agents think there are better uses of their tim e. Maybe so . But maybe we simply don't have enough inte lligen ce officers working on domes tic thr ea ts. have no way of knowing how successfu l the NSAprogram ha s been or will be, tho ugh, in genera l, inte lligence successes are underreported, while intelligence failures are fully reported. What seems clear is that fisa does not provide an adequate frame work for counterterror ist intellige nce. The st atut e was enact ed in 1978, when apoca lyptic terrorists scramb lirng to obtain wea pons of mass des truction were not on th e horizon. From a nat iona l secur ity stan dpoint, the statut e might as well have been enac ted in 1878 to•regu late th e interce ption of telegrams. In the words of Genera l Michael Hayden , director of NSAon September 11 and now th e principal de puty director of nat iona l inte lligence , the NSAprogram is des igned to "de tect and prevent ," whereas "fisa was built for long-term coverage aga inst known agents of 0 an enem y power . In th e immed iate aftermath of the September 11 attack s, Hayden , on his own initiat ive, expan ded electronic surve illance by NSAwithout see king fisa warrants. The United States had been invaded. There was fear of follow-up attack s b,yt errorist s who might alread y be in the country. Hayden 's initiat ive was within his military author ity. But, if a provision of fisa that allows electronic surve illance without a warrant for up t o 15 da ys following a de clarat ion of war is taken litera lly (and I am not opining on whether it should or shouldn't be; I am not offering any legal opinions), Hayden was supposed to wait at least until September 14 to beg in warrant less surve illance. That was th e da te on which Congress promu lga ted th e Authorization for Use of Military Force, which the administ ration cons iders a de clarat ion of war aga inst Al Qaeda. Yet the need for suc h surve illance was at its most acute on September 11. And, if a war is raging inside the United States on the sixteenth da y after an invas ion beg ins an d it is a matter of military necess ity t o cont inue warrant less intercept ions of enemy commun icat ions with peo ple in the United States , would anyone think the 15-day rule prohibitive? We must not ignore the costs to liberty and privacy of interce pting phone calls and other electronic communicati ons . No one want s strangers ea vesdro pping on his perso nal conversat ions. And wiretappin g programs VC'.n V I Document ID: 0.7.18648.6103 18-1620-E-000086 have been abused in th e past. But, since the principa l fear most peop le have of eavesdropp ing is what th e governmen t might do with th e informat ion, maybe we can have our cake and ea t it, too: Permit surve illance intended to de tect and prevent terror ist act ivity but flatly forbid the use of informat ion gleaned by suc h surveillance for any purpose other than to protect nat iona l secur ity. So, if th e governmen t discovered , in the course of surve illance , that an American was not a t errorist but was evad ing income tax, it could not use th e disco very to prosecute him for ta x evas ion or sue him for back taxes. No such rule curren tly exists. But such a rule (if honored) would make more se nse th an requ iring warrants for electronic surve illance. Once you grant the leg itimacy of surve illance aimed at de tection rather than at ga thering e-vidence of guilt, requ iring a warran t to conduct it would be like requ iring a warrant t o ask peop le ques tions or t o insta ll surve illance cameras on city st ree ts. Warrants are for situat ions where th e police shou ld not be allowed to do some thing {like searc h one 's home) without particu larized.grounds for be lieving that th ere is illega l act ivity going on. That is too high a stan dard for surve illance des igned to learn rather than to prove. Richard A. Posner is a federa l circuit judge and th e author of the forthcom ing Uncerta in Shield: The U.S. Intelligence Syst em in the Throes of Reform. RELATEDLINKS Character Flaw Bush's ne w humility The Insider Bush and. the GOP scanda ls web only Rebel Que lled Suddenly, Bush just want s to be liked Spy Crimes The pres iden t' s domes tic wiretappin g program is illega l Breakfast at Epiphan ies Bush officials are frequen tly misunders tood. Allow th em to clarify web only ,-. __ T- . 4-- .. V L&.11. .• • I I . . _. _ . I Document ID: 0.7.18648.6103 ..,_ .• ____ I ..I ____ L ...... 1 "'1 : -➔ • • n.r" _,,., JI O __ t: ___ ◄ tlusn·s new strateg y ror defe nding the war? Take Demo cratic quotes out of context web only Home I Politics · I Books & the Arts I Legal Notices Privacy PolicyI Contact TNR I Subscriber Services I Advert ise With Us Copyright 2006, The New Republic VERSIGHT Document ID: 0.7.18648.6103 18-1620-E-000088 Brett_C. Gerry@who.eop.gov From: Brett_ C._Gerry@who.eop.gov Sent : Sunday, February OS, 2006 11:10 AM To: Sampson , Kyle Cc: Bradbury, Steve; Harriet_M iers@w ho.eop.gov; (b)(3) 50 USC Brett_M._Kavanaugh@ who.eop.gov; -§ 3024(m)(1) 1@dn i.gov Subject: Fw: More comments KyleSome add it iona l wh comments be low. Also, one more genera l comment I rece ived: (b) (5) Brett -Or igina l Message-From: Brett Gerry (b)(6) Brett Gerry (personal) 1> To: Gerry, Brett C. Sent: Sun Feb OS 10:S9:SS 2006 Subject: More comments Some more WH comments on the AG's open ing remarks : (b) (5) (b) (5) (b) (5) (b) (5) (b) (5) VERSIGHT Document ID: 0.7.18648.6164 18-1620-E-000089 (b) (5) (b) (5) (b) (5) - (b) (5) Relax . Yahoo ! Mail virus scann ing helps de tect nasty viruses ! VERSIGHT Document ID: 0.7.18648.6164 18-1620-E-000090 Bradbury, Steve Bradbury, Steve Thursday, February 23, 2006 11:31 AM 50 USC 'Harriet_Miers@who.eop.gov'; (b)(3) @dni.gov;' § 3024(m)(1) 'Brett_C._Gerry@who.eop.gov'; 'Brett_M._Kavanaugh@who.eop.gov';' 'Michael_Allen@nsc.eop.gov' Cc: Sampson, Kyle; Elwood, Courtney; Moschella, William; Baker, James; Elwood,' John; Eisenberg, John Subject: Revised AG letter to SJC Attachments: SJC Letter_2 23 06 Draft_v8.doc From: Sent: To: Attached for WH TSP staffing is a draft letter from the AG to the Senate Judiciary Committee responding to questions posed by the Senators and clarifying certain of the AG's answers at the 2/6 hearing. Please provide any comments today. The AG would like to send this letter up to the Hill by tomorrow. Please' note that this draft incorporates comments received from ODNI. Thx. Steve VERSIGHT Document ID: 0.7.18648.5435 18-1620-E-000091 _ _-----------------(b)(3) 50 USC § 3605 , Fro m: (b)(3) 50 USC § 3605 Sent : Thursday, February 23, 2006 5:58 PM To: Moschella, William ; -§ 3024(m)(1) 1@dni.gov Cc: Scolinos , Tasia; Bradbury , Steve ; Elwood , John; Elwood , Courtney; @dni.gov; (b)(3) 50 USC § 3605 r;(b)(3) 50 USC § 3605 (b)(3) 50 USC § 3605 (b)(3) 50 USC § (b)(3) 50 USC § 3507, (b)(6) '; dsadoff@nsc.eop.gov ;- 3024(m)(1) ~dni.gov; (b) (6) r;jjukes (b) (6) Brett_ C._Gerry@ who.eop.gov; ryanes (b)(3) 50 USC § 3507, (b)(6) I; jwiegmann@nsc.eop.gov; dfidde lke@ wh o.eop.gov; (b) (6) sm ithj ~ ; gary.testu - (b) (6) 1; Michael_Allen@nsc.eop.gov; va lerie.capron i@ic.fbi.gov; Elen i.Kalisch@ic.fb i.gov; 50 USC (b)(3) 50 USC Shannen_ W._ Coffin@ovp.eop.gov; -(b)(3) § 3024(m)(1) @dn i.gov ;-§ 3024(m)(1) dn i.gov; (b)(3) 50 USC § (b)(3) 50 USC - 3024(m)(1) dn i.gov; -§ 3024(m)(1) @dni.gov; Brett_M ._Kavanaug h@wh o.eop.gov (b)(3) 50 USC (b)(3) 50 USC § 3024(m)(1) Subject : RE: Draft AG Letter to Judicia ry Attachments : tmp.htm For Steve Bradbury (fyi to others ) NSA appre ciates the opportun ity to comment on the draft AG responses to QFRs from the Senate (b) (5) Judiciary hea ring. We have some comments t o offer that we fee l are We made sign ificant progress on pulling together our comments today and will get you someth ing ea rly tomorrow. We are mindfu l that you want t o send up the ans wers tomorrow and will work hard so you can accomp lish th at. -· (b)(3) 50 USC § 3605 Associate Genera l Counse l (Legis lat ion) (b)(3) 50 USC § 3605 - Origina l Message-(b)(3) 50 USC From: Benjam in Powell [ma ilto- § 3024(m)(1) 1@dni.gov) Sent: Thursday, February 23, 2006 12:08 PM To: William Moschella (b)(3) 50 USC § 3605 Cc: Darlene Conne lly; !; (b)(3) 50 USC § 3605 ;-(b)(3) 50 USC § 3605 I; -(b)(3) 50 USC § 3605 :; (b)(3) 50 USC § 3507, (b)(6) ~ dsadoff@nsc.eop.gov; 'Judith A. Emme l'; (b) (6) r;jjukes (b) (6) Gerry, Brett C.; ryanes jwi egmann@nsc .eop .gov; dfidde lke@ wh o.eop.gov ; (b)(3) 50 USC § 3507, (b)(6) '; (b) (6) sm ithj ~ ; gary.testu - (b) (6) ; St eve.Bradbury@usdoj.gov ; John.E lwood@usdo j.gov ; Allen , Michae l; Courtney.Elwood@usdoj.gov; Tasia Scolinos ; Valer ie Caproni; Kalisch, Elen i P.; Coffin, Shannen W.; . (b)(3) , 50 USC § (b)(3) 50 USC § (b)(3) 50 USC § (b)(3) 50 USC § 3024(m)(1) -3024(m)(1) ·; - 3024(m)(1) ; - 3024(m)(1) ,; ; Kavanaugh, Brett M. Subject: Draft AG Letter to Judiciary See attac hed letter . Please provide comments to Steve Bradbury at DOJ. They wou ld appre ciate comments by today. His ema il is: VERSIGHT Document ID: 0.7.18648.5448 18-1620-E-000092 Steve.Bradbury@usdoj.gov --Original Message ---Subject: Revised AG letter to SJC Date : Thu, 23 Feb 2006 11:31:45 -0500 {EST) From: Steve.Bradbu ry@usdoj.gov duplicate VERSIGHT Document ID: 0.7.18648.5448 18-1620-E-000093 _ _-----------------(b)(3) 50 USC § 3605 , From: (b)(3) 50 USC § 3605 Sent : Friday, February 24, 2006 12:35 PM To: 50 USC Moschella, William; -(b)(3) @dni.gov § 3024(m)(1) 1 Cc: Scolinos, Tasia; Bradbury, Steve; Elwood , John; Elwood, Courtney; (b)(3) 50 USC -§ 3024(m)(1) @dni.gov; (b)(3) 50 USC § 3605 (b)(3) 50 USC § 3605 ~ (b)(3) 50 USC § 3605 (b)(3) 50 USC § (b)(3) 50 USC § 3507, (b)(6) '; dsadoff@nsc.eop.gov ;-d ni.gov; 3024(m)(1) (b) (6) I; jjukes ~ (b) (6) ; Brett_ C._Gerry@who.eop.gov; ryanes ~ (b)(3) 50 USC § 3507, (b)(6) jwiegmann@nsc.eop.gov; dfidde lke@who. eop.gov ; (b) (6) sm ithj ~ ; gary.testu- (b) (6) 1; Michael_Allen@nsc.eop.gov; valerie.caproni@ic.fbi.gov; Elen i.Kalisch@ic.fb i.gov; 50 USC (b)(3) 50 USC Shannen W._ Coffin@ovp.eop.gov; -(b)(3) dni.gov; § 3024(m)(1) @dni.gov; -§ 3024(m)(1) 1 (b)(3) 50 USC (b)(3) 50 USC § -d3024(m)(1) ni.gov; -§ 3024(m)(1) @dni.gov; Brett_M ._Kavanaug h@wh o.eop.gov ; (b)(3) 50 USC § 3605 Subject : RE: Draft AG Letter to Judiciary Attachments: tmp.htm; Draft-AG Response to Specter QFRs-24 Feb 06.doc Steve and John (cc to the rest) Here are NSA's comments on the AG's answers to Chairman Specter. (b)(3) 50 USC § 3605 -Original Message-50 USC From: Benjam in Powell [mailto-(b)(3) @dni.gov] § 3024(m)(1) 1 Sent: Thurs da Februa 23 2006 12:08 PM duplicate VERSIGHT Document ID: 0.7.18648.5460 18-1620-E-000095 Sl~'e ard ..bhn.{cc D t~ res~ - lie!ear-e NSA's oorrmentson fte AG's ar.g,,,•gsto ChairmanSp,ec'er. (b)(3) 50 USC § 3605 duplicate VERSIGHT Document ID: 0.7.18648.5460-000002 18-1620-E-000097 Bradbury, Steve From: Sent: Bradbury, Steve Wed nesd ay, March 01, 2006 9:32 AM To: 50 USC -(b)(3) § 3024(m)(1) @dni.gov'; 'Micha el_Allen@nsc.eop.gov'; Brett_ C._Gerry@who.eo p.gov; 'Harriet_Miers @who.eo p.gov'; ' Brett_ M._ Kavahau gh@who.eo p.gov' Ce: 50 USC § 50 USC - (b)(3) @dni.gov'; -(b)(3) e ; Elwood, Courtney; 3024(m)(1) § 3024(m)(1) @dni.gov'; Samp son, Kyl Scolinos, Tasia; Elwood, John; Eise nberg, John; Edney, Micha el; Willen, Brian Subject: OOJ letters t o hill Attachments: 2.28.06.AG res ponses t o 2.6.QFRs.pdf; 2.28.06. res ponse to Feinstein pre-hea ring ques tions.p df; Res ponses to Sen . Feinstein's Ques tions {2 28 06).pdf Attached are the le-tters an d QFR res ponses on t he TSP that OOJ se nt to the Senate Judiciary Committee yes terda y. There are numerous add itiona l QFRs t hat we are working on, and we will circulat e drafts of th ose res ponses shortly. VERSIGHT Document ID: 0.7.18648.5472 18-1620-E-000098 The Attorney General General The Attorney Washington, D.C. Washington, D.C.✏ February F e b r u a r y 28, 2 8 , 2006 2006 The Honorable Arlen Arlen Specter✏ Specter The Honorable Chairman, Committee Committee on Judiciary Chairman, on the the Judiciary✏ United States Senate✏ Senate United States Washington, D.C. 20510 Washington, D.C. 20510✏ Dear Chairman Chairman Specter: Dear Specter:✏ to provide provide responses responses to to several several questions questions posed posed to to me me at at the the hearing hearing on✏ on II write write to "Wartime Executive Power and and the National Security Security Agency's Agency's Surveillance Surveillance Authority,"✏ Authority," "Wartime Executive Power the National held Monday, Monday, February February 6, 2006, before the Senate Senate Committee Committee on on the the Judiciary. Judiciary. II also✏ also held 6,2006, before the write to to clarify clarify certain certain of of my my responses responses at at the the February February 6th 6th hearing.✏ hearing. write Except when when otherwise otherwise indicated, indicated, this this letter letter will will be be confined confined to to addressing✏ addressing Except questions relating relating to to the specific NSA NSA activities activities that that have have been been publicly publicly confmed confirmed by by the✏ the questions the specific President. Those Those activities activities involve involve the the interceptionby interception by the the NSA NSA of of President. of the the contents contents of✏ communications in which one one party party is is outsidethe outside the United United States there are✏ are communications in which States where where there reasonable grounds grounds to to believe believe that that at at least least one one party party to the communication communication is is aa member member or or reasonable to the agent of al Qaeda Qaeda or an affiliated affiliated terrorist terrorist organization (hereinafter, the or an organization (hereinafter, the "Terrorist "Terrorist✏ agent of a1 Surveillance Surveillance Program"). Program").✏ Additional Information by Senators Senators at at February 6th Hearing Hearing Additional Information Requested Requested by February 6th Senator asked whether whether the the President President first first authorized the Terrorist✏ Terrorist Senator Leahy Leahy asked authorized the Proyam after for Use Military Force Surveillance Surveillance Program after he he signed signed the the Authorization Authorization for Use of of Military Force of✏ of September 18, 2001 ("Force Resolution") and and before before he the USA USA PA TRI OT Act.✏ Act. September 18,2001 ("Force Resolution") he signed signed the PATRIOT The President 2/6/06 Unofficial Hearing Nearing Transcript Transcript ("TI.") 2/6/06 Unofficial ("Tr.") at at 50. 50. The President first first authorized authorized the✏ the Program in October October 2001, 2001, before before he he signed signed the the USA USA PATRIOT PATRIOT Act.✏ Act. Program in Senator Brownback asked asked for for recommendations recommendationson Foreign✏ Senator Brownback on improving improving the the Foreign TI. at Intelligence Surveillance Intelligence Surveillance Act Act ("FISA). ("FISA"). Tr. at 180-81. 180-81. The The Administration Administration believes believes that✏ that it is amend FISA FISA to accommodate the Terrorist Surveillance Surveillance Program.✏ it is unnecessary unnecessary to to amend to accommodate the Terrorist Program. The The Administration Administration will, will, of of course, course, work work with with Congress Congress and and evaluate evaluate any any proposals proposals for✏ for improving FISA.✏ FISA. improving Senator Feinstein asked informed the Senator Feinstein asked whether whether the the Government Government had had informed the Supreme✏ Supreme Court of the Program when and argued Court of the Terrorist Terrorist Surveillance Surveillance Program when it it briefed briefed and argued Hamdi Hamdi v. v. Rumsfeld, (2004). Tr. TI. at in Hamdi Rumsfeld, 542 542 U.S. U.S. 507 507 (2004). at 207. 207. The The question question presented presented in Hamdi was✏ was whether had validly whether the the military military had validly detained detained Yaser Yaser Esam Esam Hamdi, Hamdi, aa presumed presumed American✏ American citizen during the the combat operations in 2001,✏ citizen who who was was captured captured in in Afghanistan Afghanistan during combat operations in late late 2001, whom the military had had concluded concluded to to be be an an enemy enemy combatant combatant who who should should be be detained detained in✏ in whom the military VERSIGHT Document ID: 0.7.18648.5472-000001 18-1620-E-000099 connection with ongoing hostilities. No challenge was made concerning electronic surveillance and the Terrorist Surveillance Program was not a part of the lower court proceedings. The Government therefore did not brief the Supreme Court regarding the Terrorist Surveillance Program. Senator Feinstein asked whether "any President ever authorized warrantless surveillance in the face of a statute passed by Congress which prohibits that surveillance." Tr. at 208. I recalled that President Franklin Roosevelt had authorized warrantless surveillance in the face of a contrary statute, but wanted to confirm this. To the extent that the question is premised on the understanding that the Terrorist Surveillance Program conflicts with any statute, we disagree with that premise. The Terrorist Surveillance Program is entirely consistent with FISA, as explained in some detail in my testimony and the Department's January 19th paper. As for the conduct of past Presidents, President Roosevelt directed Attorney General Jackson "to authorize the necessary investigating agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United States." Memorandum from President Roosevelt (May 21, 1940), reproduced in United States v. United States District Court , 444 F.2d 651,670 (6th Cir. 1971) (Appendix A). President Roosevelt authorized this activity notwithstanding the language of 4 7 U.S.C. § 605, a prohibition of the Communications Act of 1934, which, at the time, provided that "no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person." President Roosevelt took this action, moreover, despite the fact that the Supreme Court had, just three years earlier, made clear that section 605 "include[s] within its sweep federal officers." Nardone v. United States, 302 U.S. 379, 384 (1937). lt should be noted that section 605 prohibited interception followed by divulging or publishing the contents of the communication. The Department of Justice took the view that interception without "divulg[ing] or publish[ing]" was not prohibited, and it interpreted "divulge" narrowly to allow dissemination within the Executive Branch. Senator Feingold asked, "[D]o you know of any other President who has authorized warrantless wiretaps outside ofFISA since 1978 when FISA was passed?" Tr. at 217. The laws of the United States, both before and after FISA ' s enactment, have long permitted various forms of foreign intelligence surveillance, including the use of wiretaps, outside the procedures ofFISA. If the question is limited to "electronic surveillance" as defined in FISA, however, we are unaware of any such authorizations. Senator Feingold asked, "[A]re there other actions under the use of military force for Afghanistan resolution that without the inherent power would not be permitted because of the FISA statute? Are there any other programs like that?" Tr. at 224. I understand the Senator to be referring to the Force Resolution, which authorizes the President to "use all necessary and appropriate force against those nations, organizations, or persons" responsible for the attacks of September 11th in order to prevent further terrorist attacks on the United States, and which by its terms is not limited to action 2 VERSIGHT Document ID: 0.7.18648.5472-000001 18-1620-E-000100 against Afghanistan or any other particular nation. I am not in a position to provide information here concerning any other intelligence activities beyond the Terrorist Surveillance Program. Consistent with long-standing practice, the Executive Branch notifies Congress concerning the classified intelligence activities of the United States through appropriate briefing of the oversight committees and congressional leadership. Senator Feingold noted that, on September 10, 2002, then-Associate Deputy Attorney General David S. Kris testified before the Senate Judiciary Committee. Senator Feingold quoted Mr. Kris's statement that "[w]e cannot monitor anyone today whom we could not have monitored this time last year," and he asked me to provide the names of individuals in the Department of Justice and the White House who reviewed and approved Mr. Kris's testimony. Tr. at 225-26. Mr. Kris's testimony was addressing the Government's appeal in 2002 of decisions of the Foreign Intelligence Surveillance Court to the Foreign Intelligence Surveillance Court of Review. In the course of that discussion, Mr. Kris explained the effects of the USA PATRIOT Act's amendments to FISA, and, in particular, the amendment to FISA requiring that a "significant purpose" of the surveillance be the collection of foreign intelligence information. Mr. Kris explained that that amendment "will not and cannot change who the government may monitor." Mr. Kris emphasized that under FISA as amended, the Government still needed to show that there is probable cause that the target of the surveillance is an agent of a foreign power and that the surveillance has at least a significant foreign intelligence purpose. In context, it is apparent that Mr. Kris was addressing only the effects of the USA PATRIOT Act's amendments to FISA. In any event, his statements are also accurate with respect to the President's Terrorist Surveillance Program, because the Program involves the interception of communications only when there is probable cause ("reasonable grounds to believe") that at least one party to the communication is an agent of a foreign power (al Qaeda or an affiliated terrorist organization). Please note that it is Department of Justice policy not to identify the individual officials who reviewed and approved particular testimony. Senators Biden and Schumer asked whether the legal analysis underlying the Terrorist Surveillance Program would extend to the interception of purely domestic calls. Tr. at 80-82, 233-34. The Department believes that the Force Resolution's authorization of "all necessary and appropriate force," which the Supreme Court in Hamdi interpreted to include the fundamental and accepted incidents of the use of military force, clearly encompasses the narrowly focused Terrorist Surveillance Program. The Program targets only communications in which one party is outside the United States and there are reasonable grounds to believe that at least one party to the communication is a member or agent of al Qaeda or an affiliated terrorist organization. The Program is narrower than the wartime surveillances authorized by President Woodrow Wilson (all telephone, telegraph, and cable communications into and out of the United States) and President Franklin Roosevelt ("all ... telecommunications traffic in and out of the United States"), based on their constitutional authority and general force-authorization resolutions like the Force Resolution. The Terrorist Surveillance Program fits comfortably within this historical precedent and tradition. The legal analysis set forth in the Department's January 19th paper does not address the interception of purely domestic communications. 3 VERSIGHT Document ID: 0.7.18648.5472-000001 18-1620-E-000101 The Department believes that the interception of the contents of domestic communications would present a different question from the interception of international communications, and the Department would need to analyze that question in light of all current circumstances before any such interception would be authorized. Senator Schumer asked me whether the Force Resolution would support physical searches within the United States without complying with FISA procedures. Tr. at 159. The Terrorist Surveillance Program does not involve physical searches. Although FISA's physical search subchapter contains a provision analogous to section 109 ofFISA, see 50 U.S.C. § 1827(a)(l) (prohibiting physical searches within the United States for foreign intelligence "except as authorized by statute"), physical searches conducted for foreign intelligence purposes present issues different from those discussed in the Department's January 19th paper addressing the legal basis for the Terrorist Surveillance Program. Thus, we would need to consider that issue specifically before taking a position. Senator Schumer asked, "Have there been any abuses of the NSA surveillance program? Have there been any investigations arising from concerns about abuse of the NSA program? Has there been any disciplinary action taken against any official for abuses of the program?" Tr. at 237-38. Although no complex program like the Terrorist Surveillance Program can ever be free from inadvertent mistakes, the Program is the subject of intense oversight both within the NSA and outside that agency to ensure that any compliance issues are identified and resolved promptly on recognition. Procedures are in place, based on the guidelines I approved under Executive Order 12333, to protect the privacy of U.S. persons. NSA's Office of General Counsel has informed us that the oversight process conducted both by that office and by the NSA Inspector General has uncovered no abuses of the Terrorist Surveillance Program, and, accordingly, that no disciplinary action has been needed or taken because of abuses of the Program. Clarification of Certain Responses I would also like to clarify certain aspects of my responses to questions posed at the February 6th hearing. First, as I emphasized in my opening statement, in all of my testimony at the hearing I addressed-with limited exceptions--0nly the legal underpinnings of the Terrorist Surveillance Program, as defined above. I did not and could not address operational aspects of the Program or any other classified intelligence activities. So, for example, when I testified in response to questions from Senator Leahy, "Sir, I have tried to outline for you and the Committee what the President has authorized, and that is all that he has authorized," Tr. at 53, I was confining my remarks to the Terrorist Surveillance Program as described by the President, the legality of which was the subject of the February 6th hearing. Second, in response to questions from Senator Biden as to why the President's authorization of the Terrorist Surveillance Program does not provide for the interception of domestic communications within the United States of persons associated with al 4 VERSIGHT Document ID: 0.7.18648.5472-000001 18-1620-E-000102 Qaeda, I stated, "That analysis, quite frankly, had not been conducted." Tr. at 82. In response to similar questions from Senator Kyl and Senator Schumer, 1 stated, "The legal analysis as to whether or not that kind of [domestic] surveillance-we haven't done that kind of analysis because, of course, the President-that is not what the President has authorized," Tr. at 92, and "I have said that I do not believe that we have done the analysis on that." Tr. at 160. These statements may give the misimpression that the Department's legal analysis has been static over time. Since I was testifying only as to the legal basis of the activity confirmed by the President, I was referring only to the legal analysis of the Department set out in the January 19th paper, which addressed that activity and therefore, of course, does not address the interception of purely domestic communications. However, I did not mean to suggest that no analysis beyond the January 19th paper had ever been conducted by the Department. The Department believes that the interception of the contents of domestic communications presents a different question from the interception of international communications, and the Department's analysis of that question would always need to take account of all current circumstances before any such interception would be authorized. Third, at one point in my afternoon testimony, in response to a question from Senator Feinstein, I stated, "I am not prepared at this juncture to say absolutely that if the AUMF argument does not work here, that FISA is unconstitutional as applied. I am not saying that." Tr. at 209. As set forth in the January 19th paper, the Department believes that FISA is best read to allow a statute such as the Force Resolution to authorize electronic surveillance outside FISA procedures and, in any case, that the canon of constitutional avoidance requires adopting that interpretation. It is natural to approach the question whether FISA might be unconstitutional as applied in certain circumstances with extreme caution. But if an interpretation of FISA that allows the President to conduct the NSA activities were not "fairly possible," and if FISA were read to impede the President's ability to undertake actions necessary to fulfill his constitutional obligation to protect the Nation from foreign attack in the context of a congressionally authorized armed conflict against an enemy that has already staged the most deadly foreign attack in our Nation's history, there would be serious doubt about the constitutionality of FISA as so applied. A statute may not "impede the President's ability to perform his constitutional duty," Morrison v. Olson, 487 U.S. 654,691 (1988) (emphasis added); see also id. at 696-97, particularly not the President's most solemn constitutional obligation-the defense of the Nation. See also In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002) (explaining that "FISA could not encroach on the President's constitutional power"). I did not mean to suggest otherwise. Fourth, in response to questions from Senator Leahy about when the Administration first determined that the Force Resolution authorized the Terrorist Surveillance Program, I stated, "From the very outset, before the program actually commenced." Tr. at 184. I also stated, "Sir, it has always been our position that the President has the authority under the authorization to use military force and under the Constitution." Tr. at 187. These statements may give the misimpression that the Department's legal analysis has been static over time. As I attempted to clarify more generally, "[i]t has always been the [Department's] position that FISA cannot be 5 VERSIGHT Document ID: 0.7.18648.5472-000001 18-1620-E-000103 interpreted in a way that infringes upon the President's constitutional authority, that FISA must be interpreted, can be interpreted" to avoid that result. Tr. at 184; see also Tr. at 164 (Attorney General: "It has always been our position that FISA can be and must be read in a way that it doesn't infringe upon the President's constitutional authority."). Although the Department's analysis has always taken account of both the Force Resolution and the Constitution, it is also true, as one would expect, that the Department's legal analysis has evolved over time. Fifth, Senator Comyn suggested that the Terrorist Surveillance Program is designed to address the problem that FISA requires that we already know that someone is a terrorist before we can begin coverage. Senator Comyn asked, "[T]he problem with FISA as written is that the surveillance it authorizes is unusable to discover who is a terrorist, as distinct from eavesdropping on known terrorists. Would you agree with that?" I responded, "That would be a different way of putting it, yes, sir." Tr. at 291. I want to be clear, however, that the Terrorist Surveillance Program targets the contents of communications in which one party is outside the United States and there are reasonable grounds to believe that at least one party to the communication is a member or agent of al Qaeda or an affiliated terrorist organization. Although the President has authorized the Terrorist Surveillance Program in order to provide the early warning system we lacked on September 11th, I do not want to leave the Committee with the impression that it does so by doing away with a probable cause determination. Rather, it does so by allowing intelligence experts to respond agilely to all available intelligence and to begin coverage as quickly as possible. Finally, in discussing the FISA process with Senator Brownback, I stated, "We have to know that a FISA Court judge is going to be absolutely convinced that this is an agent of a foreign power, that this facility is going to be a facility that is going to be used or is being used by an agent of a foreign power." Tr. at 300. The approval of a FISA application requires only probable cause to believe that the target is an agent of a foreign power and that the foreign power has used or is about to use the facility in question. 50 U.S.C . § 1805(a)(3). I meant only to convey how cautiously we approach the FISA process. It is of paramount importance that the Department maintain its strong and productive working relationship with the Foreign Intelligence Surveillance Court, one in which that court has come to know that it can rely on the representations of the attorneys that appear before it. I hope that the Committee will find this additional information helpful. /;::;:;'~ Alberto R. Gonzales cc: The Honorable Patrick Leahy Ranking Member 6 VERSIGHT Document ID: 0.7.18648.5472-000001 18-1620-E-000104 U.S. Department of Justice Justice U.S. Department of Office of Legislative Legislative Affairs Office of Affairs the Assistant General Oftice Office of of the Assistant Attorney Attorney General Washing/on, D.C. 20530⇧ 20530 Washingion, D.C F e br ua r y Februar~ 2 8, 28, 2 006 2006 The Honorable Honorable Dianne Dianne Feinstein Feinstein The Committee Committee on on the the Judiciary Judiciary United United States States Senate Senate Washington, D.C. 20510( Washington, D.C. 20510 Dear Senator Senator Feinstein: Dear Feinstein: Please find find attached attached responses to your your letter, letter, dated January 30,2006, 30, 2006, which which posed posed Please responses to dated January questions to to Attorney Attorney General Gonzales prior to his before the the Senate Committee on questions General Gonzales prior to his appearance appearance before Senate Committee on the 6,2006. The subject subject ofthe "Wartime Executive Executive Power the Judiciary Judiciary on on February February 6, 2006. The of the hearing hearing was, was, "Wartime Power and the the National National Security Security Agency's Agency's Surveillance Surveillance Authority."( Authority." and We We trust trust you you will will find find this this information information helpful. helpful. If If we we may may be be of of further further assistance assistance on on this,( this, or please do not hesitate to contact contact this office. or any any other other matter, matter, please do not hesitate to this office. Sincerely, Sincerely, l!.JL.:. t. r'lc1 :,J.Jl William E. Moschella Assistant Assistant Attorney Attorney General General Enclosure Enclosure cc: cc: The Honorable The Honorable Arlen Arlen Specter Specter Chairman, the Judiciary Chairman, Committee Committee on on the Judiciary The Honorable The Honorable Patrick Patrick J. J. Leahy( Leahy Ranking Minority Minority Member Member Ranking VERSIGHT Document ID: 0.7.18648.5472-000002 18-1620-E-000105 RESPONSES TO QUESTIONS FROM SENATOR FEINSTEIN 1. I have been informed by former Majority Leader Senator Tom Daschle that the Administration asked that language be included in the “Joint Resolution to Authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States” (P.L. 107-40) (hereinafter “the Authorization” or “AUMF”) which would add the words “in the United States” to its text, after the words “appropriate force.” • Who in the Administration contacted Senator Daschle with this request? • Please provide copies of any communication reflecting this request, as well as any documents reflecting the legal reasoning which supported this8 request for additional language. The Congressional Research Service recently concluded that the account of Senator Daschle to which your question refers “is not reflected in the official record of the legislative debate” on the Authorization for Use of Military Force (hereinafter “Force Resolution”). See Richard F. Grimmet, Authorization for Use of Military Force in Response to the 9/11 Attacks (P.L. 107-40): Legislative History at 3 n.5 (Jan. 4, 2006). We do not recall such a discussion with former Senator Daschle and are not aware of any record reflecting such a conversation. In any event, a private discussion cannot change the plain meaning and evident intent of the Force Resolution, which clearly confirms and supplements the President’s authority to take military action within the United States. In the Force Resolution, Congress expressly recognized that the September 11th attacks “render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad.” Force Resolution pmbl. (emphasis added). Congress concluded that the attacks “continue to pose an unusual and extraordinary threat to the national security.” Id. Congress affirmed that “the President has authority under the Constitution to take action to deter and prevent actions of international terrorism against the United States.” Id. (emphasis added). Accordingly, Congress authorized the President “to use all necessary and appropriate force against those” associated with the attacks “in order to prevent future acts of international terrorism against the United States.” Id. (emphasis added). The plain language of the Force Resolution clearly encompasses action within the United States. In addition, when Congress passed the Force Resolution on September 14, 2001, the World Trade Center was still burning, combat air patrols could be heard over many American cities, and there was great concern that another attack would follow shortly. Further, the attacks of September 11th were launched on United States soil by foreign agents who had been living in this country. Given this context and the plain meaning of the Force Resolution, Congress must be understood as having ratified the President’s authority to use force within the United States. A crucial responsibility of the President—charged by the Force Resolution and the Constitution to defend our Nation— AMERICAN PVERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000106 was and is to identify and disable those enemies, especially if they are in the United States, waiting to stage another strike. 2. Did any Administration representative communicate to any Member of Congress the view that the language of the Authorization as approved would provide legal authority for what otherwise would be a violation of the criminal prohibition of domestic electronic collection within the United States? • • If so, who in the Administration made such communications?8 Are there any contemporaneous documents which reflect that view within the Administration? Although your question does not indicate what timeframe it covers, we understand it to ask whether, contemporaneous with the passage of the Force Resolution, Administration officials told Members of Congress that the Force Resolution would provide legal authorization for interception of the international communications of members and agents of al Qaeda and affiliated terrorist organizations. We are not aware of any specific communications between the Administration and Members of Congress during the three days between the September 11th attacks and the passage of the Force Resolution involving the particular issue of electronic surveillance—or, for that matter, any of the other fundamental incidents of the use of military force encompassed within the Force Resolution (such as the detention of U.S. citizens who are enemy combatants, which has since been upheld by the Supreme Court). Although we are not aware of any specific discussion of what incidents of force would be authorized by a general authorization of force, the Supreme Court has explained that Congress must be understood to have authorized “fundamental and accepted” incidents of waging war. Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality opinion); see id. at 587 (Thomas, J., dissenting). Consistent with this traditional understanding, other Presidents, including Woodrow Wilson and Franklin Roosevelt, have interpreted general force authorization resolutions to permit warrantless surveillance to intercept suspected enemy communications. Cf. generally Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2048, 2091 (2005) (explaining that, with the Force Resolution, “Congress intended to authorize the President to take at least those actions permitted by the laws of war”). The understanding at the time of the passage of the Force Resolution was that it was important to act quickly and to invest the President with the authority to use “all necessary and appropriate force” against those associated with the September 11th attacks and to prevent further terrorist attacks on the United States. Congress could not have cataloged every possible aspect of the use of military force it intended to endorse. Rather than engage in that difficult and impractical exercise, Congress authorized the President, in general but intentionally broad and powerful terms, to use the fundamental and accepted incidents of the use of military force and to determine how best to identify and to engage the enemy in the current armed conflict. That is traditionally how Congress has acted at the outset of armed conflict: “because of the changeable and 2 AMERICAN PVERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000107 explosive nature of contemporary international relations . . . Congress—in giving the Executive authority over matters of foreign affairs—must of necessity paint with a brush broader than that it customarily wields in domestic areas.” Zemel v. Rusk, 381 U.S. 1, 17 (1965); cf. Dames & Moore v. Regan, 453 U.S. 654, 678 (1981) (“Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take.”). 3. According to Assistant Attorney General William Moschella’s letter of December 22, 2005, and the subsequent “White Paper,” it is the view of the Department of Justice that the Authorization “satisfies section [FISA section] 109’s requirement for 18 statutory authorization of electronic surveillance.” • Are there other statutes which, in the view of the Department, have been similarly affected by the passage of the Authorization? • • If so, please provide a comprehensive list of these statutes. Has the President, or any other senior Administration official, issued any order or directive based on the AUMF which modifies, supersedes or alters the application of any statute? Five members of the Supreme Court concluded in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), that the Force Resolution satisfies 18 U.S.C. § 4001(a)’s prohibition on detention of U.S. citizens “except pursuant to an Act of Congress,” and thereby authorizes the detention even of Americans who are enemy combatants. The Foreign Intelligence Surveillance Act of 1978 (“FISA”) contains a similar provision indicating that it contemplates that electronic surveillance could be authorized in the future “by statute.” Section 109 of FISA prohibits persons from “engag[ing] . . . in electronic surveillance under color of law except as authorized by statute.” 50 U.S.C. § 1809(a)(1) (emphasis added). Just as the Force Resolution satisfies the restrictions imposed by section 4001(a), it also satisfies the statutory authorization requirement of section 109 of FISA. We have not sought to catalog every instance in which the Force Resolution might satisfy a statutory authorization requirement contained in another statute, other than FISA and section 4001(a), the provision at issue in Hamdi. We have not found it necessary to determine the full effect of the Force Resolution to conclude that it authorizes the terrorist surveillance program described by the President, which involves the interception of the contents of communications where one end of the communication is outside the United States and there are reasonable grounds to believe that at least one party to the communication is a member or agent of al Qaeda or an affiliated terrorist organization (hereinafter, the “Terrorist Surveillance Program”). 1 Letter, Assistant Attorney General Williams Moschella to Senator Pat Roberts, et al., December 22, 2005, at p. 3 (hereinafter “Moschella Letter”). 3 VERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000108 4. The National Security Act of 1947, as amended, provides that “[a]ppropriated8 funds available to an intelligence agency may be obligated or expended for an8 intelligence or intelligence-related activity only if . . . (1) those funds were 2 specifically authorized by the Congress for use for such activities . . .” It appears8 that the domestic electronic surveillance conducted within the United States by the8 National Security Agency was not “specifically authorized,” and thus may be prohibited by the National Security Agency of 1947.8 What legal authority would justify expending funds in support of this program without the required authorization? • The General Counsel of the National Security Agency has assured the Department of Justice that the Terrorist Surveillance Program complies with section 504 of the National Security Act of 1947, the provision quoted in your question. 5. The Constitution provides that “[n]o money shall be drawn from the Treasury, 3 but in consequence of appropriations made by law.” Title 31, Section 1341 (the Anti-Deficiency Act) provides that “[a]n officer or employee of the United States Government . . . may not – make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or8 obligation,” and Section 1351 of the same Title adds that “an officer or employee of8 the United States Government or of the District of Columbia government knowingly and willfully violating sections 1341(a) or 1342 of this title shall be fined not more than $5,000, imprisoned for not more than 2 years, or both.” In sum, the Constitution prohibits, and the law makes criminal, the spending of funds except those funds appropriated in law. Were the funds expended in support of this program appropriated? • • • If yes, which law appropriated the funds? Please identify, by name and title, what “officer or employee” of the United States made or authorized the expenditure of the funds in support of this8 program? As stated above, the General Counsel of the National Security Agency has assured the Department of Justice that the applicable statutory standard has been satisfied. 6. Are there any other intelligence programs or activities, including, but not limited to, monitoring internet searches, emails and online purchases, which, in the view of 2 National Security Act of 1947, as amended, Section 504, codified at 508 U.S.C. 414.8 3 U.S. Constitution, Article I, Section 7. 4 VERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000109 the Department of Justice, have been authorized by law, although kept secret from some members of the authorizing committee?8 • If so, please list and describe such programs. The National Security Act of 1947 contemplates that the Intelligence Committees of both Houses would be appropriately notified of intelligence programs and the Act specifically contemplates more limited disclosure in the case of exceptionally sensitive matters. Title 50 of the U.S. Code provides that the Director of National Intelligence and the heads of all departments, agencies, and other entities of the Government involved in intelligence activities shall keep the Intelligence Committees fully and currently informed of intelligence activities “[t]o the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters.” 50 U.S.C. §§ 413a(a), 413b(b). It has long been the practice of both Democratic and Republican administrations to inform the Chair and Ranking Members of the Intelligence Committees about exceptionally sensitive matters. The Congressional Research Service has acknowledged that the leaders of the Intelligence Committees “over time have accepted the executive branch practice of limiting notification of intelligence activities in some cases to either the Gang of Eight, or to the chairmen and ranking members of the intelligence committees.” See Alfred Cumming, Statutory Procedures Under Which Congress is to be Informed of U.S. Intelligence Activities, Including Covert Actions, Congressional Research Service Memorandum at 10 (Jan. 18, 2006). This Administration has followed this well-established practice by briefing the leadership of the Intelligence Committees about intelligence programs or activities as required by the National Security Act of 1947. 7. Are there any other expenditures which have been made or authorized which8 have not been specifically appropriated in law, and which have been kept secret from members of the Appropriations Committee? • If so, please list and describe such programs. As stated above, the NSA has indicated that expenditures on the Terrorist Surveillance Program comply with the National Security Act and applicable appropriations law. 8. At a White House press briefing, on December 19, 2005, you stated that that the Administration did not seek authorization in law for this NSA surveillance program because “you were advised that that was not . . . something [you] could likely get” from Congress. • • What were your sources of this advice? As a matter of constitutional law, is it the view of the Department that the scope of the President’s authority increases when he believes that the legislative branch will not pass a law he approves of? 5 AMERICAN PVERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000110 As the Attorney General clarified both later in the December 19th briefing that you cite and on December 21, 2005, it is not the case that the Administration declined to seek a specific authorization of the Terrorist Surveillance Program because we believed Congress would not authorize it. See Remarks by Homeland Security Secretary Chertoff and Attorney General Gonzales on the USA PATRIOT Act, available at http://www.dhs.gov/dhspublic/display?content=5285. Rather, as the Attorney General has testified, the consensus view in the discussions with Members of Congress was that it was unlikely, if not impossible, that more specific legislation could be enacted without compromising the Terrorist Surveillance Program by disclosing operational details, limitations, and capabilities to our enemies. Such disclosures would necessarily have compromised our national security. 9. The Department of Justice’s position, as explained in the Moschella Letter and8 the subsequent White Paper, is that even if the AUMF is determined not to provide the legal authority for conduct which otherwise would be prohibited by law, the President’s “inherent” powers as Commander-in-Chief provide independent authority. • Is this an accurate assessment of the Department’s position? As the Department has explained, the Force Resolution does provide legal authority for the Terrorist Surveillance Program. The Force Resolution is framed in broad and powerful terms, and a majority of the Justices of the Supreme Court concluded in Hamdi v. Rumsfeld that the Force Resolution authorized the “fundamental and accepted” incidents of the use of military force. Moreover, when it enacted the Force Resolution, Congress was legislating in light of the fact that past Presidents (including Woodrow Wilson and Franklin Roosevelt) had interpreted similarly broad resolutions to authorize much wider warrantless interception of international communications. Even if there were some ambiguity regarding whether FISA and the Force Resolution may be read in harmony to allow the President to authorize the Terrorist Surveillance Program, the President’s inherent powers as Commander in Chief and as chief representative of the Nation in foreign affairs to undertake electronic surveillance against the declared enemy of the United States during an armed conflict would require resolving such ambiguity in favor of the President’s authority. Under the canon of constitutional avoidance, courts generally interpret statutes to avoid serious constitutional questions where “fairly possible.” INS v. St. Cyr, 533 U.S. 289, 299-300 (2001) (citations omitted); Ashwander v. TVA, 297 U.S. 288, 345-48 (1936) (Brandeis, J., concurring). The canon of constitutional avoidance has particular importance in the realm of national security, where the President’s constitutional authority is at its highest. See Department of the Navy v. Egan, 484 U.S. 518, 527, 530 (1988); William N. Eskridge, Jr., Dynamic Statutory Interpretation 325 (1994) (describing “[s]uper-strong rule against congressional interference with the President’s authority over foreign affairs and national security”). Thus, we need not confront the question whether the President’s inherent powers in this area would authorize conduct otherwise prohibited by statute. 6 AMERICAN PVERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000111 Even if the Force Resolution were determined not to provide the legal authority, it is the position of the Department of Justice, maintained by both Democratic and Republican administrations, that the President’s inherent authority to authorize foreignintelligence surveillance would permit him to authorize the Terrorist Surveillance Program. President Carter’s Attorney General, Griffin Bell, testified at a hearing on FISA as follows: “[T]he current bill recognizes no inherent power of the President to conduct electronic surveillance, and I want to interpolate here to say that this does not take away the power of the President under the Constitution.” Hearing Before the Subcomm. on Legislation of the House Permanent Select Comm. on Intelligence (Jan. 10, 1978) (emphasis added). Thus, in saying that President Carter agreed to follow the procedures of FISA, Attorney General Bell made clear that FISA could not take away the President’s Article II authority. More recently, the Foreign Intelligence Surveillance Court of Review, the specialized court of appeals that Congress established to review the decisions of the Foreign Intelligence Surveillance Court, recognized that the President has inherent constitutional authority to gather foreign intelligence that cannot be intruded upon by Congress. The court explained that all courts to have addressed the issue of the President’s inherent authority have “held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” In re Sealed Case, 310 F.3d 717, 742 (2002). On the basis of that unbroken line of precedent, the court “[took] for granted that the President does have that authority,” and concluded that, assuming that is so, “FISA could not encroach on the President’s constitutional power.” Id. (emphasis added). 10. Based on the Moschella Letter and the subsequent White Paper, I understand8 that it is the position of the Department of Justice that the National Security Agency, with respect to this program of domestic electronic surveillance, is functioning as an element of the Department of Defense generally, and as one of a part of the “Armed Forces of the United States,” as referred to in the AUMF. • Is this an accurate understanding of the Department’s position? As explained above, the Terrorist Surveillance Program is not a program of “domestic” electronic surveillance. The NSA is within the Department of Defense, and the Director of the NSA reports directly to the Secretary of Defense. Although organized under the Department of Defense, the NSA is not part of the “Armed Forces of the United States,” which consists of the Army, Navy, Air Force, Marine Corps, and Coast Guard. 10 U.S.C. § 101(a)(4). The President has constitutional authority to direct that resources under his control (including assets that are not part of the Armed Forces of the United States) be used for military purposes. In addition, the Department would not interpret the Force Resolution to authorize the President to use only the Armed Forces in his effort to protect the Nation. 11. Article 8 of the Constitution provides that the Congress “shall make Rules for the Government and Regulation of the land and naval forces.” It appears that the8 7 AMERICAN PVERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000112 Foreign Intelligence Surveillance Act (FISA), as applied to the National Security Agency, is precisely the type of “Rule” provided for in this section. • Is it the position of the Department of Justice that the President’s Commander-in-Chief power is superior to the Article 8 powers of Congress? • Does the Department of Justice believe that if the President disagrees with a law passed by Congress as part of its responsibility to regulate the Armed Forces, the law is not binding? It is emphatically not the position of the Department of Justice that the President’s authority as Commander in Chief is superior to Congress’s authority set forth in Article I, Section 8 of the Constitution. As we have explained, the Terrorist Surveillance Program is fully consistent with FISA, because Congress authorized it through the Force Resolution. Nor is it the position of the Department of Justice “that if the President disagrees with a law passed by Congress as part of its responsibility to regulate the Armed Forces, the law is not binding.” No one is above the law. The inherent authority of the President to conduct warrantless foreign intelligence surveillance is well established, and every court of appeals to have considered the question has determined that the President has such authority, even during peacetime. On the basis of that unbroken line of precedent, the Foreign Intelligence Surveillance Court of Review “t[ook] for granted that the President does have that authority” and concluded that, assuming that is so, “FISA could not encroach on the President’s constitutional power.” In re Sealed Case, 310 F.3d 717, 742 (2002). The scope of Congress’s authority to make rules for the regulation of the land and naval forces is not entirely clear. The Supreme Court traditionally has construed this authority to provide for military discipline of members of the Armed Forces by, for example, “grant[ing] the Congress power to adopt the Uniform Code of Military Justice” for offenses committed by servicemembers, Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 247 (1960), and by providing for the establishment of military courts to try such cases, see Ryder v. United States, 515 U.S. 177, 186 (1995); Madsen v. Kinsella, 343 U.S. 341, 347 (1952); see also McCarty v. McCarty, 453 U.S. 210, 232-233 (1981) (noting enactment of military retirement system pursuant to power to make rules for the regulation of land and naval forces). That reading is consistent with the Clause’s authorization to regulate “Forces,” rather than the use of force. Whatever the scope of Congress’s authority, however, Congress may not “impede the President’s ability to perform his constitutional duty,” Morrison v. Olson, 487 U.S. 654, 691 (1988); see also id. at 696-97, particularly not the President’s most solemn constitutional obligation—the defense of the Nation. The potential conflict of Congress’s authority with the President’s in these circumstances would present a serious constitutional question, which, as described above, can and must be avoided by construing the Force Resolution to authorize the fundamental and accepted incidents of war, consistent with historical practice. 8 AMERICAN PVERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000113 12. On January 24, 2006, during an interview with CNN, you said that “[a]s far as I’m concerned, we have briefed Congress . . . [t]hey’re aware of the scope of the8 program.” • Please explain the basis for the assertion that I was briefed on this program, or that I am “aware of the scope of the program.” The quotation to which your question refers is not from an interview on CNN, but is a quotation reported on the CNN Website that is attributed to the Attorney General’s remarks at Georgetown University on January 24, 2006. See http://www.cnn.com/2006/POLITICS/01/24/nsa.strategy/index.html. The prepared text of that speech accurately reflects that “[t]he leadership of Congress, including the leaders of the Intelligence Committees of both Houses of Congress, have been briefed about this program more than a dozen times since 2001.” See http://www.usdoj.gov/ag/speeches/2006/ag_speech_0601242.html (emphasis added). Similarly, during a January 16, 2006, interview on CNN, the Attorney General accurately stated that “we have briefed certain members of Congress regarding the operations of these activities and have given examples of where these authorities, where the activities under this program have been extremely helpful in protecting America.” See http://archives.cnn.com/TRANSCRIPTS/0601/16/lkl.01.html (emphasis added). The Attorney General has not asserted that every Member of Congress was briefed on the Terrorist Surveillance Program, or that you specifically have been briefed on it. However, in accordance with long-standing practice regarding exceptionally sensitive intelligence matters, the Department believes that the briefing of congressional leaders satisfies the Administration’s responsibility to keep Congress apprised of the Terrorist Surveillance Program. This view is shared by the Administration and by the Chairmen of both the House and Senate Intelligence Committees. See Letter from the Honorable Peter Hoekstra, Chairman, House Permanent Select Committee on Intelligence, to Daniel Mulholland, Director, Congressional Research Service at 1-3 (Feb. 1, 2006); Letter from the Honorable Pat Roberts, Chairman Senate Committee on Intelligence, to the Honorable Arlen Specter and the Honorable Patrick Leahy at 16-17 (Feb. 3, 2006). 13. It appears from recent press coverage that Mr. Rove has been briefed about this program, which, as I understand it, is considered too sensitive to brief to Senators who are members of the Senate Intelligence Committee. • Who decided that Mr. Rove was to be briefed about the program, and what is his need-to-know? • Is the program classified pursuant to Executive Order 12958, and if so, who8 was the classifying authority, and under what authority provided in Executive Order 12958 was the classification decision made? • How many executive branch officials have been advised of the nature, scope8 and content of the program? Please provide a list of their names and positions. 9 AMERICAN PVERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000114 • How many individuals outside the executive branch have been advised of the8 nature, scope and content of the program? Please provide a list of their names and positions. The Terrorist Surveillance Program remains classified, and we may discuss only those aspects of the Program that have been described by the President. In general, the identity of individuals who have been briefed into the Program is also classified. The Program was classified pursuant to sections 1.4(c) and (e) of Executive Order 12958, as amended by Executive Order 13292 (March 28, 2003). 14. The AUMF authorizes the President to use “all necessary and appropriate force8 against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” • What do you believe are the conditions under which the President’s authority to conduct the NSA program pursuant to the Authorization would expire? As you know, al Qaeda leaders repeatedly have announced their intention to attack the United States again. As recently as December 7, 2005, Ayman al-Zawahiri stated that al Qaeda “is spreading, growing, and becoming stronger,” and that al Qaeda is “waging a great historic battle in Iraq, Afghanistan, Palestine, and even in the Crusaders’ own homes.” Ayman al-Zawahiri, videotape released on Al-Jazeera television network (Dec. 7, 2005). And just last month, Osama bin Laden warned that al Qaeda was preparing another attack on our homeland. After noting the deadly bombings committed in London and Madrid, he said: The delay in similar operations happening in America has not been because of failure to break through your security measures. The operations are under preparation and you will see them in your homes the minute they are through (with preparations), with God’s permission. Quoted at http://www.breitbart.com/news/2006/01/19/D8F7SMRH5.html (Jan. 19, 2006) (emphasis added). The threat from Al Qaeda continues to be real. Thus, the necessity for the President to take these actions continues today. As a general matter, the authorization for the Terrorist Surveillance Program that is provided by the Force Resolution would expire when the “nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” no longer pose a threat to the United States. The authorization that is provided by the Force Resolution also would expire if it were repealed through legislation. In addition, the Program by its own terms expires 10 AMERICAN PVERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000115 approximately every 45 days unless it is reauthorized after a review process that includes a review of the current threat to the United States posed by al Qaeda and its affiliates. 15. The Department of Justice White Paper states that the program is used when there is a “reasonable basis” to conclude that one party is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda.8 • Can the program be used against a person who is a member of an8 organization affiliated with al Qaeda, but where the organization has no connection to the 9/11 attacks themselves? • Can you define the terms “reasonable basis” and “affiliated?” Are there any examples, for instance, from criminal law that can describe the “reasonable basis” standard that is being used for the NSA program? What about8 “affiliated?” • • Is it comparable to the “agent of” standard in FISA?8 Can the program be used to prevent terrorist attacks by an organization other than al Qaeda? The Terrorist Surveillance Program targets communications only where one party is outside the United States and where there are reasonable grounds to believe that at least one party to the communication is a member or agent of al Qaeda or an affiliated terrorist organization. The “reasonable grounds to believe” standard is essentially a “probable cause” standard of proof. See Maryland v. Pringle, 540 U.S. 366, 371 (2003) (“We have stated . . . that ‘[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt.’”). The critical advantage offered by the Terrorist Surveillance Program compared to FISA is who makes the probable cause determination and how many layers of review will occur before surveillance begins. Under the Terrorist Surveillance Program, professional intelligence officers, who are experts on al Qaeda and its tactics (including its use of communication systems), with appropriate and rigorous oversight, make the decisions about which international communications should be intercepted. Relying on the best available intelligence, these officers determine before intercepting any communications whether there are “reasonable grounds to believe” that at least one party to the communication is a member or agent of al Qaeda or an affiliated terrorist organization. By contrast, even the most expedited traditional FISA process would involve review by NSA intelligence officers, NSA lawyers, Justice Department lawyers, and the Attorney General before even emergency surveillance would begin. In the narrow context of defending the Nation in this congressionally authorized armed conflict with al Qaeda, we must allow these highly trained intelligence experts to use their skills and knowledge to protect us. Answering the rest of these questions would require discussion of operational aspects of the Program. 16. In addition to open combat, the detention of enemy combatants and electronic surveillance, what else do you consider being “incident to” the use of military force? Are interrogations of captives “incident to” the use of military force?8 11 AMERICAN PVERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000116 A majority of the Justices in Hamdi v. Rumsfeld concluded that the Force Resolution’s authorization of “all necessary and appropriate force” includes fundamental and accepted incidents of the use of military force. See 542 U.S. 507, 518 (2004) (plurality opinion); id. at 587 (Thomas, J., dissenting). As your question acknowledges, a majority of the Justices concluded that the detention of enemy combatants is a fundamental and accepted incident of the use of military force. As explained at length in our January 19th paper, signals intelligence is a fundamental and accepted incident of the use of military force. Consistent with that understanding, other Presidents, including Woodrow Wilson and Franklin Roosevelt, have interpreted general force-authorization resolutions to permit warrantless surveillance during wartime to intercept suspected enemy communications. In addition, we note that the Supreme Court has stated in a slightly different context that “[a]n important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war.” Ex Parte Quirin, 317 U.S. 1, 29 (1942). In light of the strictly limited nature of the Terrorist Surveillance Program, we do not think it a useful or a practical exercise to engage in speculation about the outer limits of what kinds of military activity might be authorized by the Force Resolution. It is sufficient to note that, as discussed at length in the Department’s January 19th paper, the use of signals intelligence to intercept the international communications of the enemy has traditionally been recognized as one of the core incidents of the use of military force. 17. The program is reportedly defined as where one party is in the U.S. and one party in a foreign country. Regardless of how the program is actually used, does the AUMF authorize the President to use the program against calls or emails entirely within the U.S.? We believe that the Force Resolution’s authorization of “all necessary and appropriate force,” which the Supreme Court in Hamdi interpreted to include the fundamental and accepted incidents of the use of military force, clearly encompasses the narrowly focused Terrorist Surveillance Program. The Program targets only the communications where one party is outside the United States and where there are reasonable grounds to believe that at least one party to the communication is a member or agent of al Qaeda or an affiliated terrorist organization. Indeed, the Program is much narrower than the wartime surveillances authorized by President Woodrow Wilson (all telephone, telegraph, and cable communications into and out of the United States) and President Franklin Roosevelt (“all . . . telecommunications traffic in and out of the United States”), based on their constitutional authority and general force-authorization resolutions like the Force Resolution. The narrow Terrorist Surveillance Program fits comfortably within this precedent and tradition. Interception of the contents of domestic communications presents a different legal question which is not implicated here. 12 AMERICAN PVERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000117 18. FISA has safeguard provisions for the destruction of information that is not foreign intelligence. For instance, albeit with some specific exceptions, if no FISA8 order is obtained within 72 hours, material gathered without a warrant is destroyed. • • • Are there procedures in place for the destruction of information collected under the NSA program that is not foreign intelligence? If so, what are the procedures? Who determines whether the information is retained? Procedures are in place to protect U.S. privacy rights, including applicable procedures from Attorney General guidelines issued pursuant to Executive Order 12333, that govern acquisition, retention, and dissemination of information relating to U.S. persons. 19. The DOJ White Paper relies on broad language in the preamble that is contained in both the AUMF and the Authorization for the Use of Military Force Against Iraq as a source of the President’s authority. • Does the Iraq Resolution provide similar authority to the President to engage in electronic surveillance? For instance, would it have been authorized to conduct surveillance of communications between an individual in the U.S. and someone in Iraq immediately after the invasion? The Authorization for Use of Military Force Against Iraq, Pub. L. 107-243 (Oct. 16, 2002), provides that the “President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to—(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.” Id. § 3(a). Under appropriate circumstances, the Iraq Resolution would authorize electronic surveillance of enemy communications. See generally Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2093 (2005) (stating that the “generally accepted view” is “that a broad and unqualified authorization to use force empowers the President to do to the enemy what the laws of war permit”). 20. In a December 17, 2005, radio address the President stated, “I authorized the National Security Agency…to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.” • What is the standard for establishing a link between a terrorist organization and a target of this program? • How many such communications have been intercepted during the life of this program? How many disseminated intelligence reports have resulted from this collection? • Has the NSA intercepted under this program any communications by journalists, clergy, non-governmental organizations (NGOs) or family 13 AMERICAN PVERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000118 members of U.S. military personnel? If so, for what purpose, and under what authority? Before the international communications of an individual may be targeted for interception under the Terrorist Surveillance Program, there must be reasonable grounds to believe that the individual is a member or agent of al Qaeda or an affiliated terrorist organization. That standard of proof is appropriately considered as “a practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Maryland v. Pringle, 540 U.S. 366, 370 (2003) (internal quotation marks omitted) (describing “probable cause” standard). We cannot provide more detail without discussing operational aspects of the Program. 21. In a December 17, 2005, radio address the President stated, “The activities I authorized are reviewed approximately every 45 days…The review includes approval by our Nation’s top legal officials, including the Attorney General and the Counsel to the President.” • As White House Counsel during the first 4 years this program was implemented, were you aware of this program and of the legal arguments supporting it when this Committee considered your nomination to be Attorney General? • Who is responsible for determining whether to reauthorize this program, and upon what basis is this determination made?8 As an initial matter, the Department wishes to emphasize the seriousness with which this Administration takes these periodic reviews and reauthorizations of the Terrorist Surveillance Program. The requirement that the Terrorist Surveillance Program be reviewed and reauthorized at the highest levels of Government approximately every 45 days ensures that the Program will not be continued unless the al Qaeda threat to the United States continues to justify use of the Program. The President sought legal advice prior to authorizing the Program and was advised that it is lawful. The Program has been reviewed by the Department of Justice, by lawyers at the NSA, and by the Counsel to the President. The Attorney General was involved in advising the President about the Program in his capacity as Counsel to the President, and he has been involved in approving the legality of the Program during his time as Attorney General. Since 2001, the Program has been reviewed multiple times by different counsel. The Terrorist Surveillance Program is lawful in all respects, as explained in the Justice Department paper of January 19, 2006. The President is responsible for reauthorizing the Program. That determination is based on reviews undertaken by the Intelligence Community and Department of Justice, a strategic assessment of the continuing importance of the Program to the national security of the United States, and assurances that safeguards continue to protect civil liberties. 14 AMERICAN PVERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000119 22. In a Press Briefing on December 19, 2005, you said that you “believe the President has the inherent authority under the Constitution, as Commander-inChief, to engage in this kind of activity [domestic surveillance].” This authority is8 further asserted in the Department of Justice White Paper of January 19, 2006. • Has the President ever invoked this authority, with respect to any activity other than the NSA surveillance program?8 • Has any other order or directive been issued by the President, or any other senior administration official, based on such authority which authorizes8 conduct which would otherwise be prohibited by law? i. Can the President suspend (in secret or otherwise) the application of Section 503 of the National Security Act of 1947 (50 U.S.C. 413(b)), which states that “no convert action may be conducted which is intended8 to influence United States political processes, public opinion, policies or media?” 1. If so, has such authority been exercised? ii. Can the President suspend (in secret or otherwise) the application of the Posse Comitatus Act (18 U.S.C. 1385)? 1. If so, has such authority been exercised? iii. Can the President suspend (in secret or otherwise) the application of 18 U.S.C. 1001, which prohibits “the making the false statements within the executive, legislative, or judicial branch of the Government of the United States.”8 1. If so, has such authority been exercised? The Terrorist Surveillance Program targets for interception international communications of our enemy in the armed conflict with al Qaeda. As Congress expressly recognized in the Force Resolution, “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States,” Force Resolution pmbl., especially in the context of the current conflict. Article II of the Constitution vests in the President all executive power of the United States, including the power to act as Commander in Chief, see U.S. Const. art. II, § 2, and authority over the conduct of the Nation’s foreign affairs. As the Supreme Court has explained, “[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” United States v. Curtiss-Wright Export Corp.,= 299 U.S. 304, 319 (1936) (internal quotation marks and citations omitted). In this way, the Constitution grants the President inherent power to protect the Nation from foreign attack, see, e.g., The Prize Cases, 67 U.S. (2 Black) 635, 668 (1863), and to protect national security information, see, e.g., Department of the Navy v. Egan, 484 U.S. 518, 527 (1988). 15 AMERICAN PVERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000120 The President has used his constitutional authority to protect the Nation. Although no statute had yet authorized the use of military force, the President scrambled military aircraft during the attacks of September 11th to protect the Nation from further attack and continued those patrols for days before the Force Resolution was passed by Congress and signed by the President. The Terrorist Surveillance Program is not, as your question suggests, “otherwise prohibited by law.” FISA expressly contemplates that in a separate statute Congress may authorize electronic surveillance outside FISA procedures. See 50 U.S.C. § 1809(a)(1) (FISA § 109, prohibiting any person from intentionally “engag[ing] . . . in electronic surveillance under color of law except as authorized by statute”) (emphasis added). That is what Congress did in the Force Resolution. As Hamdi v. Rumsfeld, 542 U.S. 507 (2004), makes clear, a general authorization to use military force carries with it the authority to employ the fundamental and accepted incidents of the use of force. That is so even if Congress did not specifically address each of the incidents of force; thus, a majority of the Court concluded that the Force Resolution authorized the detention of enemy combatants as a fundamental incident of force, and Justice O’Connor stated that “it is of no moment that the [Force Resolution] does not use specific language of detention.” Id. at 519 (plurality opinion). Indeed, a majority of Justices in Hamdi concluded that the Force Resolution satisfied a statute nearly identical to section 109 of FISA, 18 U.S.C. § 4001(a), which prohibits the detention of United States citizens “except pursuant to an Act of Congress.” As explained at length in the Department’s January 19th paper, signals intelligence is a fundamental and accepted incident of the use of military force. Consistent with this traditional practice, other Presidents, including Woodrow Wilson and Franklin Roosevelt, have interpreted general force-authorization resolutions to permit interception of suspected enemy communications. Thus, the President has not “authorize[d] conduct which would otherwise be prohibited by law.” It would not be appropriate for the Department to speculate about whether various other statutes, in circumstances not presented here, could yield to the President’s constitutional authority. As Justice Jackson has written, the division of authority between the President and Congress should not be delineated in the abstract. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) (“The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context.”); see also Dames & Moore v. Regan, 453 U.S. 654, 660-61 (1981). Without a specific factual circumstance in which such a decision would be made, speculating about such possibilities in the abstract is not fruitful. Nevertheless, we have explained that the Force Resolution provides authority for the fundamental incidents of the use of force. The Department does not believe that covert action aimed at affecting the United States political process or lying to Congress would constitute a fundamental incident of the use of force. Finally, the Posse Comitatus Act generally prohibits using the Army or Air Force for domestic law enforcement purposes absent statutory authorization. That statute does 16 AMERICAN PVERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000121 not address the use of military force for military purposes, including national defense, in the armed conflict with al Qaeda. 23. Had the Department of Justice adopted the interpretation of the AUMF8 asserted in the Moschella letter and subsequent White Paper at the time it discussed the USA-Patriot Act with members of Congress? That act substantially altered FISA, and yet, to my knowledge, there was no discussion of the legal conclusions you now assert – that the AUMF has triggered the “authorized by other statute” wording of FISA. • Please provide any communications, internal or external, which are contemporaneous to the negotiation of the USA-Patriot Act, which contain8 information regarding this question.8 As you know, on January 19th, the Department of Justice released a 42-page paper setting out a comprehensive explanation of the legal authorities supporting the Terrorist Surveillance Program. The paper reflects the substance of the Department’s legal analysis of the Terrorist Surveillance Program. We have always interpreted FISA not to infringe on the President’s constitutional authority to protect the Nation from foreign attacks. It is also true, as one would expect, that our legal analysis has evolved over time. It would be inappropriate for us to reveal any confidential and privileged internal deliberations of the Executive Branch. The Department is not aware of communications with Congress in connection with the negotiation of the USA PATRIOT Act concerning the effect of the Force Resolution. 24. The USA-Patriot Act reauthorization bill is currently being considered by the Congress. Among the provisions at issue is Section 215, which governs the physical search authorization under FISA. Does the legal analysis proposed by the Department also apply to this section of FISA? If so, is the Department’s position8 that, regardless of whether the Congress adopts the pending Conference Report, the Senate bill language, or some other formulation, the President may order the application of a different standard or procedure based on the AUMF or his Commander-in-Chief authority? • If so, is there any need to reauthorize those sections of the USA-Patriot Act which authorize domestic surveillance? FISA remains an essential and invaluable tool for foreign intelligence collection both in the armed conflict with al Qaeda and in other contexts. In contrast to surveillance conducted pursuant to the Force Resolution, FISA is not limited to al Qaeda and affiliated terrorist organizations. In addition, FISA has procedures that specifically allow the Government to use evidence in criminal prosecutions and, at the same time, protect intelligence sources and methods. In short, there is an urgent need to reauthorize the USA PATRIOT Act. 17 AMERICAN PVERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000122 The Terrorist Surveillance Program does not involve physical searches. FISA’s physical search subchapter contains a provision analogous to section 109, see 50 U.S.C. § 1827(a)(1) (prohibiting physical searches within the United States for foreign intelligence “except as authorized by statute”). Physical searches conducted for foreign intelligence purposes present questions different from those discussed in the January 19th paper addressing the legal basis for the Terrorist Surveillance Program. Thus, we would need to consider that issue specifically before taking a position. 25. Public statements made by you, as well as the President, imply that this program is used to identify terrorist operatives within the United States. Have any such operatives in fact been identified? If so, have these individuals been detained, and if so, where, and under what authority? Have any been killed?8 The arrest and subsequent detention of Jose Padilla is, to my knowledge, the last public acknowledgement of the apprehension of an individual classified as an “enemy combatant” within the United States. Have there been any8 other people identified as an “enemy combatant” and detained with the United States, and if so, what has been done with these individuals? • With respect, we cannot answer these questions without revealing the operational details of the Terrorist Surveillance Program, other than to point to the testimony of General Hayden and Director Mueller at the February 2d Worldwide Threat Briefing. Specifically, General Hayden stated that “the program has been successful; . . . we have learned information from this program that would not otherwise have been available” and that “[t]his information has helped detect and prevent terrorist attacks in the United States and abroad.” Director Muller stated that “leads from that program have been valuable in identifying would-be terrorists in the United States, individuals who were providing material support to terrorists.” 26. Senator Roberts has stated that the program is limited to: “when we know8 within a terrorist cell overseas that there is a plot and that plot is very close to its conclusion or that plot is very close to being waged against America – now, if a call comes in from an Al Qaeda cell and it is limited to that where we have reason to believe that they are planning an attack, to an American phone number, I don’t think we’re violating anybody’s Fourth Amendment rights in terms of civil 48 liberties.” Is the program limited to such imminent threats against the United States, or where an attack is being planned? Is this an accurate description of the program? • As the Attorney General has explained elsewhere, the Terrorist Surveillance Program is an early warning system aimed at detecting and preventing another 4 Senator Pat Roberts, CNN Late Edition with Wolf Blitzer, January 29, 2006 18 VERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000123 catastrophic al Qaeda terrorist attack. It targets communications only when one party to the communication is outside of the country and professional intelligence experts have reasonable grounds to believe that at least one party to the communication is a member or agent of al Qaeda or an affiliated terrorist organization. Beyond that, it would be inappropriate to provide a more specific description of the Program, as the operational details remain classified and further disclosure would compromise the Program’s effectiveness. 27. In a speech given in Buffalo, New York by the President, in April 2004, he said: “Now, by the way, any time you hear the United States government talking about8 wiretap, it requires – a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the 58 Constitution.” Is this statement accurate? • We believe that the statement is accurate when placed in context. As the text of your question itself indicates, in his Buffalo speech, the President was talking about the USA PATRIOT Act, certain provisions of which amended FISA to change the standard for obtaining electronic surveillance orders. In the paragraphs surrounding the portion you quoted, the President reiterated three times that he is discussing the PATRIOT Act. In particular, the President was speaking about the roving wiretap provision of the USA PATRIOT Act, noting that while such wiretaps previously were not available under FISA to intercept the communications of suspected terrorists, “[t]he Patriot Act changed that.” When surveillance is conducted under FISA, as amended by the PATRIOT Act, generally we are—as the President said—“talking about getting a court order.” The President’s statement cannot be taken out of context. In a wide variety of situations, we do not (and at times cannot) get court orders. For example, there is no provision by which the Executive Branch can obtain court orders to conduct certain surveillances overseas. 28. According to press reports, the Administration at some point determined that the authorities provided in the FISA were, in their view, inadequate to support the President’s Commander-in-Chief responsibilities.8 At what point was this determination reached? • • Who reached this determination? 5 Information sharing, Patriot Act Vital to Homeland Security, Remarks by the President in a Conversation on the USA Patriot Act, Kleinshans Music Hall, Buffalo, New York, April 20, 2004 19 18-1620-E-000124 Document ID: 0.7.18648.5472-000003 • If such determination had been reached, why did the Administration conceal the view that existing law was inadequate from the Congress? FISA itself permits electronic surveillance authorized by statute, and, as explained above, the Force Resolution satisfies FISA and provides the authorization required for the Terrorist Surveillance Program. The determination was made, based on the advice of intelligence experts, that we needed an early warning system, one that could help detect and prevent the next catastrophic al Qaeda attack and that might have prevented the attacks of September 11th, had it been in place. As the Department has explained elsewhere, including our paper of January 19, 2006, speed and agility are critical here and “existing law” is not inadequate. The Force Resolution, combined with the President’s authority under the Constitution, amply supports the Terrorist Surveillance Program. Because “existing law” provides ample authority for the Terrorist Surveillance Program, the Administration did not choose to seek additional statutory authority to support the Program, in part because, as discussed above, the consensus in discussions with congressional leaders was that pursuing such legislation would likely compromise the Program. It would be inappropriate for us to reveal the confidential and privileged internal deliberations of the Executive Branch, including who made specific recommendations. 29. Based upon press reports, it does not appear that the NSA surveillance program at issue makes use of any intelligence sources and methods which have not been briefed (in a classified setting) to the Intelligence Committees. Other than the8 adoption of a legal theory which allows the NSA to undertake surveillance which on its face would be prohibited by law, what about this program is secret or sensitive? • Is there any precedent for developing a body of secret law such as has been revealed by last month’s New York Times article about the NSA surveillance program? As explained above, the Terrorist Surveillance Program is fully consistent with all applicable federal law, including FISA. Although the broad contours of the Terrorist Surveillance Program have been disclosed, details about the operation of the Terrorist Surveillance Program remain highly classified and exceptionally sensitive. Thus, we must continue to strive to protect the intelligence sources and methods of this vital program. It is important that we not damage national security through revelations of intelligence sources and methods during these proceedings or elsewhere. The legal authorities for the Terrorist Surveillance Program do not constitute a “body of secret law,” as your question suggests. The Force Resolution and its broad authorizing language are public. Nor is it a secret that five Justices of the Supreme Court concluded in Hamdi v. Rumsfeld that the Force Resolution authorizes the use of the “fundamental incidents” of war. The breadth of the Force Resolution also has been the subject of prominent law review articles. See, e.g., Curtis A. Bradley & Jack L. 20 AMERICAN PVERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000125 Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2048 (2005); Michael Stokes Paulsen, Youngstown Goes to War, 19 Const. Comment. 215, 252 (2002). It has long been public knowledge that other Presidents have concluded that their inherent powers under the Constitution, together with similarly broad authorizations of force, authorized the warrantless interception of international communications during armed conflicts. In short, all of the sources relied upon in the Department’s January 19th paper to demonstrate that signals intelligence is a fundamental and accepted incident of the use of military force are readily available to the public. 30. At a public hearing of the Senate/House Joint Inquiry, then-NSA Director8 Hayden said: “My goal today is to provide you and the American people with as8 much insight as possible into three questions: (a) What did NSA know prior to September 11th, (b) what have we learned in retrospect, and (c) what have we done in response? I will be as candid as prudence and the law allow in this open session. If at times I seem indirect or incomplete, I hope that you and the public understand that I have discussed our operations fully and unreservedly in earlier closed sessions”8 68 (emphasis added). Under what, if any, legal authority did General Hayden make this inaccurate statement to the Congress (and to the public)?8 • Although the Department cannot speak for General Hayden in this context, it does not appear that the statement was inaccurate. As discussed above, it has long been the practice of both Democratic and Republican administrations under the National Security Act of 1947 to limit full briefings of certain exceptionally sensitive matters to key members of the Intelligence Committees. 31. Were any collection efforts undertaken pursuant to this program based on8 information obtained by torture? Was the possibility that information obtained by torture would be rejected by the FISA court as a basis for granting a FISA warrant a reason for undertaking this program? • As the President has repeatedly made clear, the United States does not engage in torture and does not condone or encourage any acts of torture by anyone under any circumstances. In addition, we have already explained our reasons for establishing the 6 Statement for the Record by Lieutenant General Michael V. Hayden, USAF, Director, National Security Agency/Chief. Central Security Service, Before the Joint Inquiry of the Senate Select Committee on Intelligence and the house Permanent Select Committee on Intelligence, 17 October 2002, available at hhtp://intelligence.senate.gov/0210hrg/021017/hayden.pdf. 21 VERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000126 Terrorist Surveillance Program. It is an early warning system designed to detect and prevent another catastrophic terrorist attack on the United States. 32. If the President determined that a truthful answer to questions posed by the Congress to you, including the questions asked here, would hinder his ability to function as Commander-in-Chief, does the AUMF, or his inherent powers, authorize you to provide false or misleading answers to such questions?8 Absolutely not. Congressional oversight is a healthy and necessary part of our democracy. This Administration would not under any circumstances countenance the provision of false or misleading answers to Congress. Under our system of government, no one—particularly not the Attorney General—is permitted to commit perjury. Nor is that something that the Force Resolution authorizes. We are not aware of any theory under which committing perjury before Congress is a fundamental and accepted incident of the use of force. In those instances where the Administration believes that answering questions about certain intelligence operations would compromise national security, we would follow long-established principles of accommodation between the Branches, by, for example, informing the chairs and vice chairs of the Intelligence Committees, and the House and Senate leaders, as appropriate. 22 AMERICAN PVERSIGHT Document ID: 0.7.18648.5472-000003 18-1620-E-000127 Bradbury, Steve Bradbury, Steve Wednesday, March 01, 2006 2:43 PM (b)(3) 50 USC § @dni.gov'; (b)(3) 50 USC § 3605v'; 'Harriet_Miers@who.eop.gov';( 3024(m)(1) Brett_C._Gerry@who.eop.gov; 'Brett_M._Kavanaugh@who.eop.gov';( 'Shannen_W._Coffin@ovp.eop.gov' Cc: Sampson, Kyle; Elwood, Courtney; Moschella, William; Elwood, John; Eisenberg,( John; Edney, Michael; Willen, Brian Subject: Draft DOJ responses to SJC QFRs re NSA hearing Attachments: Joint Qs of SJC Democrats_3 1 06 v2.doc From: Sent: To: Attached is a draft of responses to post-hearing QFRs from SJC Democrats. VERSIGHT Document ID: 0.7.18648.5474 18-1620-E-000128 Harriet_Miers@wlilo.eop.gov From: Harriet_Miers@who.eo p.gov Sent: Thursda y, May 11, 2006 9 :04 PM To: Scolinos, Tasia; Bradbury, Steve; Elwood , John; Roehrkasse , Brian; Kenneth_ A._ Lis aius@who.eo p.gov; Oana _M._Per.ino@who.eo p.gov Ce: 50 USC Eise nberg , John; Brett_ C._Gerry@who .eo p.gov;-•(b)(3) § 3024(m)(1) @dni.gov; Oan_ Bartlett@wh o.eo p.gov; Brett_M._ Kavanau gh@who.eo p.gov; William_K._ Kelley@who .eo p .gov; Joel_ O._Kaplan@ who.eo p.gov; Micha el_Allen@nsc.eo p.gov Subject: RE: Talking Points (b) (5) Attachments: sugges tions ab out would like t o do so . (b) (5) Talkers (5- 11-06).doc (b) (5) Addit ionally, Ben Powell ha d so me interes ting . I will ask him to se nd his comments aro un d if he --O rigina l Mess a ge--From : John.Elwood @usdo j.gov lmailto:John. Elwood @usdoj.gov) Sent: Thursd ay, May 11, 2006 8:53 PM To: Brian .Roe hrkasse @usdoj .gov; Steve .Brad bury@usdo j.gov; Tasia .Scolinos @usdo j.gov; Lis aius, Kenneth A.; Perino, Dana M. Cc: John. Eise nberg @usdoj.gov; Miers , Harriet; Gerry, Brett C. Subject: RE: Talking Points I unders tan d that Steve has ha d a convers at ion with Harriet an d that these are cleared for use . Than k you. -- -O rigina l Message -From : Roe hrkasse , Brian Sent: Thursd ay, May 11, 2006 7:19 PM To: Elwood, John; Bradbury, Steve; Scolinos , Tasia; 'Kenneth_ A._ Lis aius @who .eo p.g ov'; 'Oana_ M._Perino@who.eo p.gov' Cc: Eise nberg , John; ' Brett_ C._Ge rry@who.eo p.gov' Subject: RE: Ta lking Points OK - I ass ume these are now cleared by OLC/OOJ.Has th e WH cleared? -- --Origina l Message- From: Elwood, John Sent: Thursd ay, Ma y 11, 2006 7 :14 PM To: Bradbury, Steve ; Roe hrkasse , Brian; Scolinos , Tasia; 'Kenneth_ A._ Lisa.ius@who.eo p.g ov'; 'Oana_ M._Perino @who.eo p.gov' Cc: Eise nberg , John; ' Brett_ C._Ger ry@who.eo p.gov' Vt:.Kt;l\;IM Document ID: 0.7.18648.5513 I 18-1620-E-000129 Subject: RE: Talking Points I would propose us ing these ta lking points, which are revised from Draft #4. ---O rigina l Message- From: Bradbury, Ste ve Sent : Thursda y, May 11, 2006 7:12 PM To: Roehrka sse , Brian ; Scolinos, Tasia; 'Kenneth_A._ Lis aius@who.eo p.g ov'; 'Dana_M._Perino@who.eo p.gov' Cc: Eise nberg, John; ' Brett_C._Gerry@who.eo p.gov'; Elwood, John Subject: RE: Talking Points Pis include John Elwood in these mess ages . Thx ---Or igina l Mess a ge -From: Roehrkasse , Brian Sent: Thursday, May 11, 2006 7:10 PM To: Scolinos, Tasia; Bradbury, Steve; 'Kenneth_A._ Lis aius@who.eo p.gov'; 'Dana_M._Perino@who.eo p. gov' Cc: Eisen berg, John ; 'Brett_ C._Gerry@who.eo p.gov'; Eisen berg, John Subject: RE: Talking Points Not t o confuse things anymore, but ass uming that DRAFT4 is the lat es t an d final draft, _ (b) (5) --Or igina l Message -From: Scolinos, Tas.ia Sent: Thursd ay, May 11, 2006 7:05 PM To: Roehrkasse , Brian; Bradbury, Steve; 'Kenneth_A._ Lisa ius @who.eo p.g ov'; 'Dana_M._Perino@who.eop.gov' Cc: Eise nberg, John ; ' Brett_C._Gerry@who.eo p.gov'; Eise nberg, John Subject: RE: Talking Points Just so we are clea r, the Draft #4 Leg al Authority Talking Points are cleared an d we are just waiting for add itiona l Q and A' s from OLC? -- --Origina l Mess a ge -From: Roe hrkasse , Brian Sent: Thursday, May 11, 2006 6:35 PM To: Bradbury, Steve ; Scolinos, Tasia; 'Kenneth_A._ Lis aius@who.eo p.gov'; 'Dana_M._Perino@who.eo p. gov' Cc: Eise nberg, John ; ' Brett_C._Gerry@who.eo p.gov'; Eise nberg, John Subject: RE: Talking Points Are th e leg al autho rity points the draft 4 from th e corres ponde nce at 4:06 below or are th ere new n n int c:? ~HT Document ID: 0.7.18648.5513 18-1620-E-000130 ---Or igina l Message- From: Roehrkasse , Brian Sent: Thursda y, May 11, 2006 4:06 PM To: 'Harriet_M iers@who.eop.gov '; Dana_ M._Perino@who.eop.gov ; William_K._ Kelley@who.eo p.gov; Brett_ C._Gerry@who.eop. gov Cc: Scolinos, Tasia; Dan_Bart lett@ who.eop. gov; Cather ine_Martin@who.eop.gov; Miche le_A._Davis@nsc.eop.gov; Tony_Snow@who.eop.gov; Bradbury, Steve; Eise nberg , John Subject: RE:Need whc help That is correct. We made a fe w minor ed its to : and OLC chan ged the sentence (b) (5) (b) (5) --Or igina l Mess age-From: Bradbury, Ste ve Sent: Thursday, May 11, 2006 6:33 PM To: Scolinos, Tas ia; 'Kenneth_A._ Lisa ius@who.eop.gov '; 'Dana_M._Perino@who. eo p.gov' Cc: Eise nberg, John; Roehrkasse, Brian; ' Brett_C._Gerry@who.eop.gov '; Eise nbe rg, John Subject: RE: Talking Points John Elwood and John Eise nberg are working on the Q&As right now an d will get them back around ASAP.There are lega l author ity ta lking points , which I be lieve are final. The core of tho se ta lkers are incorporate d into the Q&As, I be lieve. ---Or igina l Mess age-From: Scolinos, Tas.ia Sent: Thursday, May 11, 2006 6:27 PM To: 'Kenneth_A._ Lisaius@who.eop.gov '; Dana_M._Perino@who.eop.gov Cc: Eisen be rg, John; Bradbury, Steve; Roehrkasse , Brian; Brett_ C._Gerry@who.eop.gov Subject: RE: Talking Points I just want to be clea r on th is point because DOJ is under the impress ion that we are wait ing for fina l WH clearance on the ta lking points. --Or igina l Mes sage-From: Kenneth_A._ li saius@who.eop.gov [mailto:Kenneth_A._ Lis aius@who.eop.gov ) Sent: Thursday, May 11, 2006 6:19 PM To: Scolinos, Tas ia; Dana_M._Perino@who.eop.gov Subject: FW: Talking Points From: Persinger, John M. Sent: Thursday, May 11, 2006 6:18 PM To: Lis aius, Kenneth A. 18-1620-E-000131 Document ID: 0.7.18648.5513 Subject: Talking Points Bill sa id Just ice is s till fina lizing th e Talking Points. They know they are urgent but Bill does not have a spe cific tim eline. VERSIGHT Document ID: 0.7.18648.5513 18-1620-E-000132 Roehrkasse , Brian From: Roe hrkasse , Brian Sent: Friday, May 12, 2006 8 :43 AM To: Scolinos , Tasia; Bradbury, Steve; Elwood , John; Kenneth_ A._ Lisa ius@who.eo p.gov; Oana _M._Per.in o @who .eo p.gov; Brett_ C._Ger ry@who .eo p.gov; Eise nberg , John Ce: 50 USC -(b)(3) § 3024(m)(1) @dni.gov; Oan_ Bartlett@ who.eo p.gov; Brett _ M._Kavan au gh@who.eo p.gov; William_K._ Kelley@who .eo p .g.o v; Joel_ O._ Kaplan@ who.eo p.gov; Micha el_Allen@nsc.eo p.gov; Sampso n, Kyle; Mos chella, William; Tony_ Snow@who .eo p.gov; 'Harriet_ Miers @wh o .eo p.gov'; Scolinos, Tasia Subject: Attachments: Importance: FINALDRAFTO&A/Talking Points Talkers Final Draft.doc (b) (5) High I hav e refo rmatt ed last night's fina l dra ft Q & A for ease of reading including combining q ues tions 2 (b) (5) and 3 since th ey hav e the sa me an swer . . Please let me know if these are t he fina l Q & As. Than ks. VERSIGHT Document ID: 0.7.18648.5525 18-1620-E-000133 William_K. Kelley@who.eop .gov From : William_K._Kelley@who.eop.gov Sent : Friday, May 12, 2006 9:14 AM To: Scolinos, Tasia; Bradbury , Steve ; Elwood , John; Eisenberg, John; Roehrkasse, Brian; Kenneth_A._Lisaius@who.eop.gov; Dana_M._Perino@who.eop.gov; Brett_ C._Gerry@who.eop.gov Cc: Sampson, Kyle; Moschella, William; Harriet _ Miers@who.eop.gov; (b)(3) 50 USC Michael_Allen@nsc.eop.gov; -§ 3024(m)(1) 1@dn i.gov; Dan_ Bart lett@ who.eop.gov; Brett_M._Kavanaug h@wh o.eop.gov ; Joel_D._Kaplan@who.eop.gov; Tony_ Snow@ wh o.eop.gov Subject : Re: FINALDRAFTQ&A/Ta lking Points Fine by me. - Orig inal MessageFrom: Brian.Roehrkasse@usdoj.gov To: Tasia.Scolinos@usdoj.gov ; Steve.Bradbury@usdoj.gov ; John. Elwood@usdoj.gov ; John.Eisenberg@usdoj.gov ; Lisaius, Kenneth A. ; Perino, Dana M.; Gerry, Brett C. CC: Kyle.Sampson@usdoj.gov ; William.Moschella@usdoj.gov ; Miers, Harriet ; Tasia.Scolinos@usdoj.gov ; Allen , Michael ; 50 USC (b)(3) 50 USC -(b)(3) @dni.gov ; Bartlett , Dan ; Kavanaugh , Brett § 3024(m)(1) 1 § 3024(m)(1) 1 M. ; Ke lley, William K. ; Kaplan, Joel ; Snow, Tony Sent: Fri May 12 08:42:14 2006 duplicate VERSIGHT Document ID: 0.7.18648.5529 18-1620-E-000134 Dan_Bartlett@who.eop.gov From: Oan_ Bartlett@wh o.eop.go v Sent: Friday, May 12, 2006 9:31 AM To: Scolinos, Tasia; Bradbury, Steve ; Elwood , John; Roehrkasse , Brian; Harr iet_ Miers@ who. eop.go v; Kenneth _A._ Lisaius@ who.eop.gov; Oana _ M._ Perino@who.eop.gov Ce: (b)(3) 50 USC Eisenberg , John; Brett_ C._ Gerry@who.eop.gov ;-@dn i.gov; § 3024(m)(1) Brett _ M._Kavanaugh@ who.eop.go v; William _K._ Kelley@who.eop.g .ov; Joe l_ O._ Kaplan@who.eop.gov ; Michae l_Allen@nsc.eop.go v Subject: FINALTALKINGPOINTS Attachments: (b) (5) Talkers. Final (5-11 -06).doc Please use th ese. VERSIGHT Document ID: 0.7.18648.5535 18-1620-E-000135 Macklin, Kristi R From: Sent: To: Macklin, Kristi R Friday, May 05, 2006 6:28 PM 'Brett_M._Kavanaugh@who.eop.gov'; 'Brett_C._Gerry@who.eop.gov'; 'Raul_F._Yanes '; Bradbury, Steve (b) (6) Subject: Alito transcript on r (b) (5) Attachments: Alito on .doc (b) (5) ______________________________________________ From: Higginbotham, Ryan K (OLP) Sent: Friday, May 05, 2006 6:26 PM To: Macklin, Kristi R RE: Subject: VERSIGHT Document ID: 0.7.18648.6259 EXT-18-1620-F-000001 Judge Samuel Alito Testimony before the Senate Judicial Committee On his Nomination to the Supreme Court Testimony Regarding (b) (5) (b) (5) VERSIGHT Document ID: 0.7.18648.6259-000001 EXT-18-1620-F-000002 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 EXT-1 8-1620-F-00001 Document ID: 0.7.18648.6259-000001 EXT-1 8-1 620-F-000011 Document ID: 0.7.18648.6259-000001 EXT-1 8-1620-F-000012 Document ID: 0.7.18648.6259-000001 EXT-1 8-1620-F-00001 3 Document ID: 0.7.18648.6259-000001 EXT-1 8-1620-F-000014 Document ID: 0.7.18648.6259-000001 EXT-1 8-1620-F-00001 5 Document ID: 0.7.18648.6259-000001 EXT-1 8-1620-F-000016 Document ID: 0.7.18648.6259-000001 EXT-1 8-1620-F-000017 Document ID: 0.7.18648.6259-000001 EXT-1 8-1620-F-00001 8 Document ID: 0.7.18648.6259-000001 EXT-1 8-1620-F-00001 9 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 EXT-1 8-1620-F-000021 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 EXT-1 8-1620-F-000031 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 EXT-1 8-1620-F-000041 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 Document ID: 0.7.18648.6259-000001 49 Document ID: 0.7.18648.6259-000001