Misc. 13-01 Exhibit 2 (FISC 2013)
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The court issued a subsequent related opinion or order on May 24, 2013.
The court issued a subsequent related opinion or order on May 20, 2013.
The court issued a subsequent related opinion or order on June 5, 2013.
The court issued a subsequent related opinion or order on June 7, 2013.
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EXHIBIT 2 Motion of the Electronic Frontier Foundation for Consent to Disclosure of Court Records or, in the Alternative, a Determination of the Effect of the Court's Rules on Statutory Access Rights UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) ) ELECTRONIC FRONTIER FOUNDATION, Plaintiff; v. Civil Action No. 12-1441-ABJ ) DEPARTMENT OF JUSTICE, Dcfcnuanl. .• ___ ) ) ) ) ) DECLARATION OF MARK A. BRADLEY I, Mark A. Bradley, do hereby state and declare as follows: I. I am the Director of the Freedom of Information Act ("FOIA") and Declassification Unit of"thc Office of Law and Policy in the National Security Division ("NSD") of the United States Department of Justice ("DOJ" or ''Department"). NSD is a component of the Department. 2. In addition. under a written delegation of authority pursuant to section l .3.(c) of Executive Order 13526, l hold original dassification authority at the TOP SECRET level. I am authorized, therefore, to conduct classification rcvic\vs and to 1nake original classification nncl declassification decisions. J. I sub111it this declaration in support of I_)()J's l\1otion for Surnn1ary Judgincnt in the a hove-captioned case. l 1nakc the statc111cnts herein on the basis of personal kno\vledgc: as \Vl:ll ns on inrorrnation acquired by rnc in the course or perfonning iny official duties. PLAINTIFF'S REQUEST 4. lly letter dated July 26, 2012, plaintiff, the Electronic Frontier Foundation ("EFF"), requested the following: I. Any written opinion or order, ... in which "the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment"; 2. Any written opinion or order, ... reflecting or concerning a FISC determination that "the government's implementation or Section 702 of FISA has sometimes circumvenkd the spirit of the law"; and. 3. Any briefing provided to the Senate Select Committee on Intelligence or the House Permanent Select Committee on Intelligence concerning the FISC opinions or orders, described in items (1) and (2) above. The NSD FOL\ unit assigned this request number 12-219. This request is attached as Exhibit 1\. NSD'S RESPONSE TO PLAINTIFF'S REQUEST 5. Jn a letter dated January 3, 2013, NSD FOJA informed EFF that it had searched the files of the Office of the Assistant Attorney General ("OAAG") for NSD and the files of NSD's 01 and located five responsive records. The five responsive records arc: (A) FlSC: order dated October 3. 201 L totaling 86 pages', and responsive to items I and 2 of plaintiff's request. This document was withheld in full pursuant to FOJA Exemptions (b)( I) and (b)(3). (B) Redacted version of document A which was produced to Congress pursuant to the Foreign Intelligence Surveillance Act (''FISA"). Highly sensitive information \Vas rcJactccl frorn this version of the order, but this version still contains information classified at the TOP SECRET level. This document was withheld in 1 Bas<.'d on the particular cin:u1nstances presented in 1his c<1se, 1 have determined that revealing the date and length ofihe F!SC opinion identified above and ot issue in this e<1sc \\'Ould 1101 co111pro111isc national security. However, slrnilar infonnatio11 n1ay be clnssillcd as to other FISC opinions where disclosure of1he dat--:: l)f length of ~HJ opinion, either in isolation or in conjunction \Vith other inronnation that n1ight be available to the public or to persons subject to in!c:l!igcncc: collection, rnight tend 10 reveal clns.~ificd national security inf\lrrnatiun. including infonnation concerning the- 1in1ing or nature of intelligence activities. For cxarnplc, in certain scltings, the date or length ofa FISC opinion 1night assist a sophisticated advcrsaty in deducing particular intelligence activities or sources and methods, and possibly lead to the use ofcountcnncasurcs that rnay deprive the United States of critical intelligence. Accordingly, 111y decision to release information as to this particu!<Jr opinion docs not indicate that si1nilar i11fornwtion about other FISC opinions \Viii also be released. full pursuant to FOIA Exemptions (b )(I) and (b )(3 ). (C) An undated, classified white paper prepared by DO.I for Congress, totaling nine pages, only one paragraph ofvvhich is responsive to ite1n 3 of the request. 'rhc responsive paragraph was withheld in full pursuant to FOIA Exemptions (b)(l) and (b)(3). (D) Joint Statement of Lisa Monaco_, Assistant Allorney General for the National Security Division, U.S. Department of Justice; John C. (Chris) Inglis, Deputy Director for the National Security Agency, Robert Lilt, General Counsel, Office of the Director of National Intelligence before the Permanent Select Commillee on Intelligence, United States I-louse of Representatives at a Hearing Concerning ''FISA Amendments Acl Reauthorization" presented on December 8, 2011. Portions of this statement are responsive to item 3 of the request. (E) Joint Statement of Lisa Monaco, Assistant Attorney General for the National Security Division, lJ.S. Department ofJustice; John C. (Chris) Inglis, Deputy Director for the National Security Agency, Robert Litt, General Counsel, Office of the Director of National Intelligence before the Senate Select Committee on Intelligence, United States Senate at a Hearing Concerning "FISA Amendments Act Reauthorization" presented on February 9, 2012. Portions of this statement arc responsive to item 3 of the request. Enclosed with the January 3, 2013 letter, attached as Exhibit 13, were redacted versions of documents D and E for partial release. 6. I examined documents C, D, and E and determined all three contain National Security Agency ("NSA") equity. As a result, NSD sent documents C, D, and E lo the NS!\. NSA asked NSD to withhold the responsive paragraph in document C in full pursuant to FOIA Exemptions (b)(l) and (b)(J). NSA also asked NSD to withhold documents D and E in part pursuant to FOIA Exemptions (b)(l) and (b)(J). As noted above, NSD released documents D and r: in part on .January 3, ~013. J)ocun1cnts c:. !), and L~ arc discussed in thL' dcc!anition of JJianc Janosek. DOCUMENTS A AND B 7. Document A is an opinion issued by the FISC and is subject to section I 80J(cJ or FISA which states, "[r]ccorcls of proceedings under this Act, including applications made and 3 orders grantee!, shall be maintained under security rncasurcs established by the Chief Justice in consultation with the Attorney General and the Director of National Intelligence." And under Rule 62(b) of the FlSC Rules of Procedure, a FJSC order or opinion may not be released by the Clerk "without a Court order." To dale, the FISC has not issued any orders releasing this opinion, and FISC rules prohibit the release of any portion of the opinion without a FISC order.-' . A copy of the FISC Rules of Procedure is attached as Exhibit C. 8. In addition, I have determined that clocurncnts A and B arc exempt under FOIA Exemption One. I have examined documents A and B, and I have determined that both docurnents arc currently and properly classified under Executive Order 13526. Specifically, I have determined that the withheld information contained in these records meets the criteria for classification as set forth in subparagraphs (c) and (g) of' Section l .4 of Executive Order 13526, which respectively authorize the classification of inforn1ation concerning "intelligence activities (including covert action), intelligence sources or n1cthods, or cryptology," and "'vulnerabilities or capabilities of systems, installations, infras1ruc1nrcs, projects, plans, or protection services relating to national security," \Vhich includes defense against transnational tcrrorisn1. l have also dctcrrnincd that the classified infonnation in the responsive. docu1ncnts is "o\vned by, produced by or for, or under the control of' the United Stales Government," as required by F.O. 13526. Further) the \Vithhcld inforn1ation in NSIJ's responsive records is not the san1c as the inf<Jr111ation that was dcclassificcl by ODNI in the July 20. 2012 letter li·om Kathleen Turner, ODNl's ----2 As noted above, docu111ent 13 is a redacted version of this opinion which \.Vas provided lo Congress pursuant to 50 U.S.C. § 1871. The redacted version still c:o111ains inf()rn1ation classiJ'icd at the T<)P SECRET level. FISC rule 62(c) pcnnits the Govern111ent to provide copies of Fl SC "opinions, decisions, or other Court records, to Congress, pursunnt to 50 U.S.C. §§ 187 J (a)(.1), I 871 (c), or 1881 f(b)(l)(f)), or any other statutory rcquircn1cnl, \Vi thou! prior rnolion to nnd order by the Court." F!SC rules do not pern1it thl! C.lovcr111ncnl to release FISC opinions to a FOl1\ requester or any other n1e111bcr of the public \\'ithout a FJSC order. ---.~-~ 4 Director of Legislative Affairs, to Senator Ron Wyden. 9. Because the withheld material in documents A and Bis classified at the TOP SECRET level, its disclosure could be expected to cause exceptionally grave damage to the national security of the United States. l have examined documents A and B, and I have determined that the withheld material contains specific descriptions of the manner and means by which the United States Government targets non-United States persons located overseas to acquire foreign intelligence information under Section 702. As such, l have determined that tbe withheld information describes highly sensitive intelligence activities, sources and methods, and disclosure offhis infonnation \vould provide our adversaries and foreign intelligence targets with insight into the lJnited States C:lovcrn111cnt's foreign intelligence collection capabilitics \Vhich in 1 turn could be used to develop the means to degrade and evade those collection capabilities. EXl<:MPTION THREE I 0. l have also determined that the information in documents/\ and Bis also exempt from disclosure pursuant to FOIA Exemption 3. Exemption 3 states that FOJA's disclosure provisions do not apply to matters that are spcciiically exempted from disclosure by statute. Jn this ease, I examined the withheld information and determined that it is protected by the National Security /\ct of 1947, as amended by the Intelligence Reform and Terrorism Prevention Act ("IRTPA") of2004, which protects intelligence sources and methods from unauthorized disclosure. 50 U.S.C. ~ 403-l(i)(l). I determined the information in documents/\ and B contains intelligence sources and n1cthocl and is therefore protected fi·on1 release by the National Security /\ct and FOIA Escmption 3. SEGREGABIL!TY 11. l reviewed documents/\, ll, C, D, and E for purposes 5 or complying with FO!A's scgrcgability provision \Vhich requires the Governn1ent to release "any reasonably segregable portion ofa record" after proper application of the FOIA exemptions. 5 U.S.C. § 552(b). For documents A and !3, I determined that no portion of them could be properly segregated and released due to the FISC's rules pertaining to the release of its orders. 12. Alier carefol examination, I have also determined that the one responsive paragraph in docu1nent C contains no unclassified portions that can be segregated and released. 'J'he unclassified, non-exe1npt 1natcrial in the one responsive paragraph in clocu1nent C is so inextricably intertwined with the classified material that the release of any non-exempt information would produce only incomplete, fragmented, unintelligible sentences and phrases that arc devoid of any meaning. 13. For docurncnts I_) and I~, the non-cxcrnpt, responsive infonnation \Vas segregated and provided in NSD's response, dated January}, 2013. The exempt and non-responsive rortions of the dOCUlllCJ1t \VCre redacted. 6 CONCLUSION I certify. pursuant to 28 U.S.C. § 1746, under penally of perjury that the foregoing is true and correct to the best of my knowledge and bcl icf. Executed this I" day of April 2013 7
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