New York Times Company et al v. U.S. Department of JusticeCross MOTION for Partial Summary JudgmentD.D.C.June 12, 2017 #61782v1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ X THE NEW YORK TIMES COMPANY : and CHARLIE SAVAGE, : : : Plaintiffs, : : Civil Action No. 17-cv-87 (CRC) - against - : : U.S. DEPARTMENT OF JUSTICE, : : : Defendant. : : : __________________________________________X PLAINTIFFS’ CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Plaintiffs The New York Times Company and Charlie Savage (collectively, “The Times”) respectfully move the Court to enter partial summary judgment on their claims pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. There are no genuine issues of material fact regarding The Times’s entitlement under FOIA to the disclosure of the requested records to the extent Defendant seeks to withhold them pursuant to Exemption 5 to FOIA’s disclosure mandate, id. § 552(b)(5). The accompanying Memorandum of Points and Authorities more fully sets forth the reasons that support The Times’s Cross-Motion for Partial Summary Judgment. Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 1 of 28 #61782v1 Dated: New York, NY Respectfully submitted, June 12, 2017 /s/ David E. McCraw David E. McCraw, Esq. The New York Times Company Legal Department 620 Eighth Avenue, 18th Floor New York, NY 10018 phone: (212) 556-4031 fax: (212) 556-4634 mccraw@nytimes.com Counsel for Plaintiffs Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 2 of 28 #61782v1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ X THE NEW YORK TIMES COMPANY : and CHARLIE SAVAGE, : : : Plaintiffs, : : Civil Action No. 17-cv-87 (CRC) - against - : : U.S. DEPARTMENT OF JUSTICE, : : : Defendant. : : : __________________________________________X MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF PLAINTIFFS’ CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 3 of 28 i #61782v1 TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................. i TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .................................................................................................... 1 STATEMENT OF FACTS ............................................................................................................. 2 ARGUMENT .................................................................................................................................. 6 I. EXEMPTION 5 DOES NOT JUSTIFY WITHHOLDING THE OLSON MEMORANDUM OR THE COVER LETTER........................................................... 7 A. THE ATTORNEY-CLIENT PRIVILEGE DOES NOT JUSTIFY DOJ’S INVOCATION OF EXEMPTION 5 ...................................................................... 8 B. THE OLSON MEMORANDUM IS THE WORKING LAW OF DOJ ............... 17 CONCLUSION ............................................................................................................................. 22 Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 4 of 28 ii #61782v1 TABLE OF AUTHORITIES CASES Am. Civil Liberties Union v. NSA (“ACLU”), No. 13-cv-9198(KMW), 2017 WL 1155910 (S.D.N.Y. Mar. 27, 2017), ......................................................................................... 17 n.11, 20-21 Am. Immigration Lawyers Ass’n v. Exec. Office of Immigration Rev., 830 F.3d 667 (D.C. Cir. 2016) ............................................................................................................................................... 6 Bast v. Dep’t of Justice, 665 F.2d 1251 (D.C. Cir. 1981) ............................................................... 6 Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521 (D.C. Cir. 2011). ..................................... 7 Brennan Ctr. for Justice v. Dep’t of Justice, 697 F.3d 184 (2d Cir. 2012) ............................. 18, 21 Brinton v. Dep’t of State, 636 F.2d 600 (D.C. Cir. 1980) ......................................................... 9, 14 Chiquita Brands Int’l, Inc. v. SEC, 805 F.3d 289 (D.C. Cir. 2015). ....................................... 7, 12 Consumer Fed’n of Am. v. Dep’t of Agric., 455 F.3d 283 (D.C. Cir. 2006) ................................... 7 Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) ...................... Passim Cuban v. SEC, 744 F. Supp. 2d 60 (D.D.C. 2010) ................................................................. 10, 17 Elec. Frontier Found. v. Dep’t of Justice (“EFF”), 739 F.3d 1 (D.C. Cir. 2014) ........................ 20 Elec. Frontier Found. v. Dep’t of Justice, No. 11-cv-5221, 2014 U.S. Dist. LEXIS 110785 (N.D. Cal. Aug. 11, 2014) ............................................................................................................. 20 Elec. Privacy Info. Ctr. v. Dep’t of Justice (“EPIC”), 584 F. Supp. 2d 65 (D.D.C. 2008) ...... 9, 15 Elec. Privacy Info. Ctr. v. Dep’t of Justice, No. 06-cv-214 (RCL), 2014 U.S. Dist. LEXIS 43187 (D.D.C. Mar. 31, 2014), .................................................................................................... 9, 17 n.11 Mead Data Central, Inc. v. Dep’t of the Air Force, 566 F.2d 242 (D.C. Cir. 1977) .......... 9, 10, 16 Nat’l Ass’n of Crim. Def. Lawyers v. Exec. Office for U.S. Att’ys, 844 F.3d 246 (D.C. Cir. 2016) 7 Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26 (D.C. Cir. 2002)......................................... 6 NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) .................................................................. 17 N.Y. Times v. Dep’t of Justice, 12-cv-3215(JSR), 2013 U.S. Dist. LEXIS 7396 (S.D.N.Y. Jan. 7, 2013) ................................................................................................................. 21 Schlefer v. United States, 702 F.2d 233 (D.C. Cir. 1983) ........................................ 9, 15, 16, 18-19 Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 5 of 28 iii #61782v1 Tax Analysts v. IRS (“Tax Analysts I”), 117 F.3d 607 (D.C. Cir. 1997) ......................... 8, 9, 15, 18 Tax Analysts v. IRS (“Tax Analysts II”), 294 F.3d 71 (D.C. Cir. 2002) ....................................... 18 Taxation without Representation Fund v. IRS, 646 F.2d 666 (D.C. Cir. 1981) ........................... 18 Wilderness Soc’y v. Dep’t of Interior, 344 F. Supp. 2d 1 (D.D.C. 2004) ..................................... 10 STATUTES AND REGULATIONS 5 U.S.C. § 552 ........................................................................................................................ Passim FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538 ............................ 8, 17 n.11 Executive Order 12333, 46 Fed. Reg. 59,941 (Dec. 4, 1981) ................................................ Passim Executive Order 13284, 68 Fed. Reg. 4,077 (Jan. 23, 2003) .................................................... 5 n.3 Executive Order 13355, 69 Fed. Reg. 53,593 (Aug. 27, 2004) ................................................ 5 n.3 Executive Order 13470, 73 Fed. Reg. 45,328 (July 30, 2008) .................................. 5 n.3, 6 nn.4-5 Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 6 of 28 1 #61782v1 Plaintiffs The New York Times Company and Charlie Savage (collectively, “The Times”) respectfully submit this memorandum of points and authorities in opposition to the motion for summary judgment by Defendant Department of Justice (“DOJ”) and in support of their cross-motion for partial summary judgment on their Complaint brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. PRELIMINARY STATEMENT This case is about a single memorandum written 37 years ago that DOJ has come to treat as a precedent as authoritative as circuit law on the constitutional implications of electronic surveillance (hereinafter the “Olson Memorandum”).1 The Olson Memorandum is an Office of Legal Counsel (“OLC”) assessment of the constitutionality of certain National Security Agency (“NSA”) electronic surveillance activities authorized by Executive Order (“EO”) 12333. It analyzes information about contemplated intelligence activities furnished by the NSA in order to provide legal advice to the Attorney General. Evidence in the record suggests that, given its precedential character, the Olson Memorandum appears to have been circulated widely within the executive branch, well beyond the bounds of the original attorney-client relationship between OLC and the Attorney General. For these reasons: (1) the Olson Memorandum lacks qualities necessary for it to receive the protection of the attorney-client privilege, a privilege that is not nearly as broad as DOJ would have the Court believe, and (2) the Olson Memorandum bears the hallmarks of agency working law, which cannot be withheld under Exemption 5 to FOIA’s 1 For ease of reference, The Times will generally refer to the Olson Memorandum as shorthand for both the memorandum and the cover letter summarizing it. If the attorney-client privilege does not attach to the Olson Memorandum, then by extension it also does not attach to the cover letter. Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 7 of 28 2 #61782v1 disclosure mandate. Accordingly, DOJ is not entitled to withhold the Olson Memorandum or the Cover Letter pursuant to Exemption 5. 2 STATEMENT OF FACTS The Olson Memorandum In 1984, Theodore Olson, then Assistant Attorney General for OLC, transmitted to the Attorney General a memorandum dated May 24 and bearing the subject line “Re: Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Surveillance Act of 1978.” (See Decl. of David E. McCraw (“McCraw Decl.”) ¶ 2, Ex. 1 at 4 n.4 (June 12, 2017).) At the same time, Mr. Olson transmitted a cover letter, which contained an unclassified partial summary of the Olson Memorandum (the “Cover Letter”). (Decl. of Paul P. Colborn (“Colborn Decl.”) ¶ 11 (May 5, 2017), ECF No. 13- 1.) The Olson Memorandum discusses the constitutionality of contemplated NSA electronic surveillance activities carried out under the authority of Executive Order (“EO”) 12333, 46 Fed. Reg. 59,941 (Dec. 4, 1981).3 (See McCraw Decl., Ex. 1 at 4 n.4, Ex. 2 at 22; Colborn Decl. ¶ 12, Ex. D (second row from the top on page 1 of the Vaughn index).) EO 12333 furnishes the NSA and other agencies legal authority to collect information—including about United States 2 On May 3, 2017, the Court granted the parties’ consent motion to bifurcate summary judgment briefing. See Minute Order, N.Y. Times v. Dep’t of Justice, No. 17-cv-87(CRC) (D.D.C. May 3, 2017). Accordingly, The Times here addresses only DOJ’s Exemption 5 arguments. The Times reserves the right to challenge DOJ’s withholdings pursuant to Exemptions 1 and 3 should its arguments against DOJ’s invocation of Exemption 5 prevail. The Times also reserves the right, at that stage, to challenge DOJ’s claim with respect to segregability. (See Colborn Decl. ¶ 20.) 3 EO 12333 has since been amended on several occasions. See EO 13284, 68 Fed. Reg. 4,077 (Jan. 23, 2003); EO 13355, 69 Fed. Reg. 53,593 (Aug. 27, 2004); EO 13470, 73 Fed. Reg. 45,328 (July 30, 2008). The Times will refer to the pre-amendment version of EO 12333, because it was in effect at the time OLC transmitted the Olson Memorandum to the Attorney General. Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 8 of 28 3 #61782v1 persons4—through electronic surveillance, as well as to retain and disseminate that information. See EO 12333 §§ 1.12(b), 2.2-2.4, 46 Fed. Reg. at 59,947-51. It “is the principal Executive Branch authority for foreign intelligence activities not governed by [the Foreign Intelligence Surveillance Act],” including the collection of signals intelligence by the NSA. THE PRESIDENT’S REV. GP. ON INTEL. & COMMS. TECH., LIBERTY AND SECURITY IN A CHANGING WORLD, at 69-70 (Dec. 12, 2013), available at http://bit.ly/2jkiXew; see also PRIVACY & CIV. LIBERTIES OVERSIGHT BD., SEMI-ANNUAL REPORT: APRIL 2014 – SEPTEMBER 2014, at 9 (Dec. 22, 2014), available at http://bit.ly/2sLK48m. The Attorney General is heavily involved in approving the surveillance practices authorized by EO 12333. For example, at the time the Olson Memorandum was written, § 2.3 and § 2.4 of EO 12333, 46 Fed. Reg. at 59,950-51, assigned to the Attorney General’s sole discretion approval of the procedures for collection, retention, and dissemination of information concerning United States persons by the NSA and other agencies of the Intelligence Community.5 The information underlying the legal advice provided by the Olson Memorandum came from an executive branch agency DOJ declines to name, which is almost certainly the NSA, see n.6 infra, and concerned that agency’s contemplated intelligence activities. (See Colborn Decl. ¶ 12.) That information appears to have detailed proposed electronic surveillance techniques and procedures that the NSA hoped to employ under the authority of EO 12333. (See McCraw Decl., Ex. 1 at 4 n.4, Ex. 2 at 22; Colborn Decl., Ex. D (Vaughn index, second row).) The Olson 4 “United States person” means a United States citizen, a legal permanent resident, and business entities with certain connections to the United States. EO 12333, § 3.4(i), 46 Fed. Reg. at 59,954. A 2008 amendment to EO 12333 subsequently redesignated this definition as § 3.5(k). EO 13470 § 4(h), 73 Fed. Reg. at 45,341. 5 Sections 2.3 and 2.4 of EO 12333 were amended in 2008 to require that the Attorney General consult with the Director of National Intelligence in deciding whether to approve new surveillance procedures. EO 13470, §§ 3(e), 3(r), 73 Fed. Reg. at 45,338. Those amendments, however, were not in effect at the time the Olson Memorandum was drafted. Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 9 of 28 4 #61782v1 Memorandum, however, was not addressed to the NSA, and DOJ does not say that it was written to provide legal advice to the NSA. (See Colborn Decl. ¶ 16.) Rather, it was written to provide legal advice to the Attorney General, who “eventual[ly] transmi[tted]” it to the NSA. (Id.) DOJ does not say when or why the Attorney General eventually transmitted the Olson Memorandum to the NSA. Specifically, it does not say that the Attorney General did so in order to provide the NSA legal advice. DOJ’s Reliance on the Olson Memorandum as Precedent The NSA’s use of its EO 12333 surveillance authority has continued to raise serious Fourth Amendment concerns in the decades since OLC issued the Olson Memorandum. Even some former government officials have expressed discomfort with the scope and oversight of EO 12333 surveillance. See, e.g., John Napier Tye, Op-Ed., Meet Executive Order 12333: The Reagan Rule That Lets the NSA Spy on Americans, WASH. POST, July 18, 2014, available at http://wapo.st/2t3hZZv (op-ed by former Obama Administration State Department section chief). Congressional oversight committees have also raised questions about the NSA’s surveillance activities under EO 12333, and when pressed by the Senate Judiciary Committee on the legality of these activities, executive branch officials have relied on the Olson Memorandum. (See McCraw Decl., Ex. 2 at 22.) Sen. Dianne Feinstein—a senator well versed in these issues, as a long-sitting member of both the Judiciary Committee and the Senate Select Committee on Intelligence—has said that these executive branch officials have characterized the Olson Memorandum as a “seminal” OLC opinion that “govern[s] the conduct of collection activities under Executive Order 12333.” (Id. (emphasis added).) Indeed, there is direct evidence of DOJ’s reliance on the Olson Memorandum as internal precedent with respect to the Fourth Amendment implications of electronic surveillance under Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 10 of 28 5 #61782v1 EO 12333. That evidence can be found in a November 20, 2007, memorandum submitted to the Attorney General by Kenneth L. Wainstein, then-Assistant Attorney General for DOJ’s National Security Division (“NSD”) (the “Wainstein Memorandum”). (See McCraw Decl., Ex. 1.) The Wainstein Memorandum assessed whether certain techniques the NSA planned to use to analyze metadata—i.e., “dialing, routing, addressing, or signaling information that does not concern the substance, purport, or meaning of communications”—collected through electronic surveillance violated the Fourth Amendment, various federal statutes, or the terms of EO 12333. (See id. at 1- 4.) In analyzing the Fourth Amendment implications of these techniques, the Wainstein Memorandum concluded that a person has no reasonable expectation of privacy in the metadata NSA planned to analyze. (Id. at 4-5.) The Wainstein Memorandum expands on that conclusion by asserting that “the analysis of information legally within the possession of the Government is likely neither a ‘search’ nor a ‘seizure’ within the meaning of the Fourth Amendment.” (Id. at 4 n.4.) For that proposition, it cites two sources, using a “see, e.g.” signal to indicate that these two sources are examples of precedent that supports the proposition. (Id.) The first citation is to a Sixth Circuit opinion from 1982, which holds that one agency sharing lawfully obtained information with another agency does not raise Fourth Amendment concerns. (Id. (citing Jabara v. Webster, 691 F.2d 272, 277-79 (6th Cir. 1982).) Immediately thereafter, the Wainstein Memorandum cites to the Olson Memorandum to support the same proposition. (Id.) The Wainstein Memorandum goes on to show that the precedential effect of the Olson Memorandum within DOJ is methodological as well as substantive. The author of the Wainstein Memorandum felt compelled to build part of his analysis around what he considered an unnecessary assumption—“that the Fourth Amendment may apply” to the subsequent analysis of information Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 11 of 28 6 #61782v1 “the Government has already obtained . . . lawfully”—because the Olson Memorandum had done so. (Id.). The FOIA Request On October 28, 2016, The Times filed a FOIA request with the NSD and OLC, seeking the Olson Memorandum. (See Colborn Decl., Ex. A.) Subsequently, on December 13, 2016, The Times sent an email to OLC. (See id., Ex. B.) In that email, The Times indicated that it believed that its October 28 request encompassed the Cover Letter. (Id.) OLC did not respond within the time limits set by FOIA, which meant that The Times had exhausted its administrative remedies. See 5 U.S.C. § 552(a)(6)(A)(i), (a)(6)(C). The Times filed this lawsuit on January 13, 2017. (See Dkt. No. 1.) On March 10, 2017, OLC responded to The Times’s FOIA request, asserting that it was withholding the Olson Memorandum and the Cover Letter in full pursuant to Exemption 5, 5 U.S.C. § 552(b)(5), and that parts of the Olson Memorandum were exempt from disclosure pursuant to Exemptions 1 and 3, id. § 552(b)(1), (b)(3). (Colborn Decl., Ex. C.) ARGUMENT FOIA contains a disclosure mandate limited only by nine exemptions. 5 U.S.C. § 552(a)(3)(A), (b)(1)-(9). “FOIA reflects ‘a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.’” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 360-61 (1976)). In light of this purpose, FOIA’s exemptions must be construed narrowly, Am. Immigration Lawyers Ass’n v. Exec. Office of Immigration Rev., 830 F.3d 667, 673 (D.C. Cir. 2016), and doubts are to be construed in favor of disclosure, Bast v. Dep’t of Justice, 665 F.2d 1251, 1253 (D.C. Cir. 1981). “FOIA establishes a strong presumption in favor of disclosure” and places on the agency the burden of demonstrating that an exemption justifies Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 12 of 28 7 #61782v1 withholding requested documents. Chiquita Brands Int’l, Inc. v. SEC, 805 F.3d 289, 294 (D.C. Cir. 2015). FOIA litigation is typically resolved on summary judgment. See Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). A Court reviews de novo an agency’s decision to withhold information from the public. 5 U.S.C. § 552(a)(4)(B). Although a court may grant summary judgment “on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements,” the court must also consider “contradictory evidence in the record” that may call into question the agency’s assertions. Consumer Fed’n of Am. v. Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006). FOIA’s segregability requirement mandates that, even if part of a document is exempt from disclosure, an agency must still release any non-exempt portions that can be separated out through redaction. See 5 U.S.C. § 552(b); see also Nat’l Ass’n of Crim. Def. Lawyers v. Exec. Office for U.S. Att’ys, 844 F.3d 246, 256 (D.C. Cir. 2016). I. EXEMPTION 5 DOES NOT JUSTIFY WITHHOLDING THE OLSON MEMORANDUM OR THE COVER LETTER At the outset, let’s be clear about what this case is about. It is about a unique set of facts that render Exemption 5 inapplicable to a single OLC memorandum. The Times is not arguing that OLC opinions and memoranda can never receive the protections of Exemption 5. Nor is it arguing anything at all categorical about Exemption 5 and OLC opinions and memoranda. What The Times is arguing is that the publicly available information specific to the Olson Memorandum demonstrates that Exemption 5 cannot apply to it. That is for three reasons. First, the deliberative-process privilege cannot apply to the Olson Memorandum because of its age. As DOJ concedes (Colborn Decl. ¶ 14), Congress has decided that the privilege cannot apply to Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 13 of 28 8 #61782v1 documents that are more than 25 years old. See FOIA Improvement Act of 2016, Pub. L. No. 114-185, § 2(2), 130 Stat. 538, 540 (amending 5 U.S.C. § 552(b)(5)). Second, DOJ has not met its burden to demonstrate that the attorney-client privilege applies to the Olson Memorandum. Third, the publicly available evidence demonstrates that, even if the attorney-client privilege did at one time apply, the Olson Memorandum has become the working law of DOJ, which places it outside the ambit of Exemption 5. A. THE ATTORNEY-CLIENT PRIVILEGE DOES NOT JUSTIFY DOJ’S INVOCATION OF EXEMPTION 5 DOJ has failed to meet its burden of demonstrating that the Olson Memorandum—and by derivation, the Cover Letter that summarizes it—are shielded from disclosure by the attorney- client privilege, pursuant to Exemption 5. Exemption 5 permits an agency to decline to disclose “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). The attorney- client privilege is among the privileges that may support an invocation of Exemption 5. See Tax Analysts v. IRS (“Tax Analysts I”), 117 F.3d 607, 616 (D.C. Cir. 1997). But the privilege does not automatically attach to every attorney-client communication and, in fact, is subject to significant limitations. Indeed, “[l]ike all privileges . . . the attorney-client privilege is narrowly construed and is limited to those situations in which its purposes will be served,” namely, to protect a client’s ability—not the ability of non-client third parties—to provide his or her attorney the facts necessary to obtain legal advice. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 14 of 28 9 #61782v1 In the case of communications from attorney to client, the privilege operates only when two conditions are met: (1) “the communication from attorney to client is confidential” and (2) “the communication is based on confidential information provided by the client.” Schlefer v. United States, 702 F.2d 233, 245 (D.C. Cir. 1983) (emphasis added); see also Elec. Privacy Info. Ctr. v. Dep’t of Justice (“EPIC”), 584 F. Supp. 2d 65, 79 (D.D.C. 2008), summary judgment granted on other grounds, 2014 U.S. Dist. LEXIS 43187 (D.D.C. Mar. 31, 2014). The privilege, however, does not apply when the information on which the attorney bases the client communication was supplied by a party other than the client. See Brinton v. Dep’t of State, 636 F.2d 600, 604 (D.C. Cir. 1980). So, for example, the privilege does not apply when a government client asks a government attorney to provide “neutral, objective analyses” of how the law applies to facts provided by a third party. Coastal States, 617 F.2d at 863. In the government agency context, not every official within the agency seeking advice is a “client” for privilege purposes. See Mead Data Central, Inc. v. Dep’t of the Air Force, 566 F.2d 242, 253 n.24 (D.C. Cir. 1977); see also Coastal States, 617 F.2d at 863; EPIC, 584 F. Supp. 2d at 79-80. Only those officials within the client agency “who are authorized to speak or act for the organization in relation to the subject matter of the communication” fall within the scope of the attorney-client relationship. Mead Data, 566 F.2d at 253 n.24; see also Coastal States, 617 F.2d at 863. When the attorney communicates to the client, the privilege applies only if the communication “is based on confidential information provided by the client.” Schlefer, 702 F.2d at 245; see also Tax Analysts I, 117 F.3d at 619; Coastal States, 617 F.2d at 863; EPIC, 584 F. Supp. 2d at 79-80. As for confidential nature of the communication, the government must show that the attorney and client have maintained the confidentiality of the allegedly privileged document since the time of the attorney-client communication. See Coastal States, 617 F.2d at 863; Mead Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 15 of 28 10 #61782v1 Data, 566 F.2d at 253-54; Wilderness Soc’y v. Dep’t of Interior, 344 F. Supp. 2d 1, 18 (D.D.C. 2004). In order to do so, the government must demonstrate that the information was not circulated beyond the officials who fall within the attorney-client relationship. See Mead Data, 566 F.2d at 253 n.24; Coastal States, 617 F.2d at 863. “If facts have been made known to persons other than those who need to know them, there is nothing on which to base a conclusion that they are confidential.” Coastal States, 617 F.2d at 863. “The attorney-client privilege is not applicable just because the defendant states that it applies,” and summary judgment is inappropriate where “the defendant’s declaration reveals that the defendant offers nothing more than conclusory assertions and blanket affirmations.” Cuban v. SEC, 744 F. Supp. 2d 60, 79 (D.D.C. 2010). Here is the sum total of what DOJ’s declarant has said to support the application of the attorney-client privilege to the Olson Memorandum. He has said that the Olson Memorandum “was written in response to confidential communications from an executive branch client soliciting legal advice from OLC attorneys regarding contemplated intelligence activities,” and that it contains “confidential client communications made for the purpose of seeking legal advice . . . from OLC attorneys transmitted to an executive branch client.” (Colborn Decl. ¶ 12.) He has also said that the Olson Memorandum and the Cover Letter “(a) contain confidential legal advice provided to the Attorney General for eventual transmission to another executive branch client; and (b) reflect confidential client information transmitted through confidential communications between OLC and an executive branch client for the purpose of seeking and providing that legal advice.” (Id. ¶ 16.) That is nothing more than a verbal sleight of hand. DOJ has not met its burden to show that the attorney-client privilege shields the requested records. Here is what the two statements Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 16 of 28 11 #61782v1 made by DOJ’s declarant in fact say. First, the NSA, in 1984, furnished information to OLC about contemplated electronic surveillance activities pursuant to its EO 12333 authorities.6 Second, OLC drafted the Olson Memorandum in order to provide legal advice to the Attorney General, not to the NSA. (Colborn Decl. ¶ 16.) Indeed, the memorandum was addressed and transmitted to the Attorney General alone, not to the general counsel of the NSA or any other NSA official. (Id. ¶ 16, Ex. D (Vaughn index, second row); McCraw Decl., Ex. 1 at 4 n.4.) Third, OLC relied on the information furnished by the NSA about its proposed surveillance activities to “provid[e] that legal advice,” i.e., legal advice to the Attorney General.7 (Colborn Decl. ¶ 16 (emphasis added).) Specifically, the Olson Memorandum provided to the Attorney General a constitutional analysis of—and in particular, an analysis of the Fourth Amendment implications of—proposed NSA surveillance activities under the authority of EO 12333. (McCraw Decl., Ex. 1 at 4 n.4; Colborn Decl. ¶¶ 12, 16.) Put simply, OLC attorneys provided advice to their client, the Attorney General, using information provided by a third party, the NSA. While DOJ could have asserted it or the Attorney General then provided that legal advice to the NSA, it tellingly fails to make that claim. Instead, it opted for the ambiguous formulation “eventual transmission” to the NSA. (Colborn 6 Although DOJ’s declarant does not say this outright, the following facts support the conclusion that NSA provided OLC this information. DOJ’s declarant states that OLC received confidential information about “contemplated intelligence activities” from “an executive branch client.” (Colborn Decl. ¶ 12.) DOJ’s declarant does not say whether that is the Attorney General or another official or entity, but given his later express reference to the Attorney General (id. ¶ 16), the best reading of this statement is that “executive branch client” refers to a government entity other than the Attorney General. The title of the Olson Memorandum—and DOJ’s acknowledgment of a legal memorandum responsive to The Times’s FOIA request based on that title (id. ¶ 12, Exs. A, C-D)—strongly suggest that DOJ’s declarant here is referring to the NSA. (See McCraw Decl., Ex. 1 at 4 n.4.) DOJ’s Vaughn index, at row 2, indicates that the memorandum pertains to electronic surveillance activities authorized by EO 12333. (See Colborn Decl., Ex. D; see also id. ¶ 13 (stating that “OLC 2” in Vaughn index is the Olson Memorandum at issue in this case).) So too do Sen. Dianne Feinstein’s comments during a 2015 Senate Judiciary Committee hearing. (See McCraw Decl., Ex. 2 at 22.) Given the foregoing, for ease of reference, The Times will refer to what DOJ calls OLC’s “executive branch client” as the NSA. 7 The clear referent of the demonstrative adjective “that” is “legal advice provided to the Attorney General.” (See Colborn Decl. ¶ 16.) Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 17 of 28 12 #61782v1 Decl. ¶ 16.) The Attorney General may have later transmitted the Olson Memorandum to the NSA for any number of reasons unrelated to providing legal advice that would assist the NSA in its policymaking or decisionmaking. Transmission alone, after all, does not imply advice. The Attorney General has his own independent obligations under EO 12333. Specifically, prior to amendments made to EO 12333 in 2008, he—and he alone—was tasked with deciding whether to approve proposed NSA electronic surveillance techniques and procedures. See EO 12333, §§ 2.3-2.4, 46 Fed. Reg. at 59,950-51. He may have eventually transmitted the Olson Memorandum to the NSA by way of explaining his ultimate decision to approve (or not) NSA’s proposed surveillance procedures. Or he may have transmitted it to the NSA for some altogether different reason. The point is we do not know why he eventually transmitted the Olson Memorandum to the NSA because DOJ does not say. It is not for the plaintiffs and the Court in a FOIA case to speculate about how Exemption 5 may or may not apply; it is for the defendant to make its case. See Chiquita Brands, 805 F.3d at 294. This is not DOJ’s only relevant omission. Another is that its declarant fails to say whether—and to what extent—the Olson Memorandum has been shared or circulated within and outside DOJ. Accordingly, DOJ has failed in three respects to meet its burden to show the applicability of the attorney-client privilege under Exemption 5. First, it has not shown that the NSA was OLC’s client for purposes of the Olson Memorandum. Instead, it has shown only that an attorney-client relationship existed between OLC and the Attorney General. Second, DOJ has conceded that OLC’s client for purposes of the Olson Memorandum—the Attorney General— did not provide the factual information on which the memorandum was based. That information came from a third party, the NSA. Third, DOJ has not shown that the confidentiality of the Olson Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 18 of 28 13 #61782v1 Memorandum has been maintained in the decades since its creation. To the contrary, the publicly available evidence suggests that it has been shared well beyond the bounds of the attorney-client relationship. 1. The Attorney-Client Relationship. Although DOJ has demonstrated that, for purposes of the Olson Memorandum, an attorney-client relationship existed between OLC and the Attorney General, it has not demonstrated that one existed between OLC and the NSA. The most DOJ’s declarant can say is that OLC provided the legal advice contained in the Olson Memorandum to the Attorney General and that the Attorney General “eventual[ly] transmi[tted]” it to NSA for some unspecified purpose. (Colborn Decl. ¶ 16.) DOJ does not say whether the Attorney General transmitted the Olson Memorandum in order to provide legal advice to guide a decisionmaking process within the NSA. Nor has it provided a declaration from an NSA official attesting to the existence of an attorney-client privilege between the NSA and either the Attorney General or OLC with respect to the legal advice contained in the Olson Memorandum.8 Moreover, the fact that OLC addressed the Olson Memorandum to the Attorney General—viewed in light of OLC’s practice at the time—underscores that the attorney-client relationship here was between OLC and the Attorney General and not between OLC and the NSA. In 1984, when the Olson Memorandum was written, OLC’s practice was to respond directly to a non-DOJ agency client that had requested legal advice. See, e.g., Mem. Op. for the Deputy Legal Adviser, Dep’t of State, from Larry L. Simms, Deputy Ass’t Att’y Gen., OLC, Authority of the State Department Office of Security to Investigate Passport and Visa Fraud (Aug. 17, 1984), available at http://bit.ly/2s5e0OO; Mem. Op. for the Acting Gen. Counsel, 8 To the extent DOJ cannot identify the NSA by name, it could have redacted the identity of the agency from the declaration. Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 19 of 28 14 #61782v1 Dep’t of Def., from Theodore B. Olson, Ass’t Att’y Gen., OLC, Effect of INS v. Chadha on the Authority of the Secretary of Defense to Reorganize the Department of Defense Under U.S.C. § 125 (Apr. 26, 1984), available at http://bit.ly/2t3rcB0. It was also common at the time for OLC’s DOJ clients to seek legal advice pertaining to the activities of non-DOJ agencies, which were not OLC’s client for purposes of those memoranda. See, e.g., Mem. Op. for the Acting Ass’t Att’y Gen., Civil Div., from Theodore B. Olson, Ass’t Att’y Gen., OLC, Authority of the Equal Opportunity Commission to Conduct Defensive Litigation (June 21, 1984), available at http://bit.ly/2r3wgEB; Mem. Op. for the Ass’t Att’y Gen., Land & Natural Res. Div., from Theodore B. Olson, Ass’t Att’y Gen., OLC, Application of the Resource Conservation and Recovery Act to the Department of Energy’s Atomic Energy Act Facilities (Feb. 9, 1984), available at http://bit.ly/2r3umEb. In other words, the subject of OLC’s analysis—here the NSA’s contemplated surveillance activities—does not define which executive branch agency or official stood in an attorney-client relationship vis-a-vis OLC. It would not be surprising for the Attorney General, as OLC’s client, to request legal advice about the NSA’s proposed surveillance activities, particularly given his responsibilities under § 2.3 and § 2.4 of EO 12333, 46 Fed. Reg. at 59,950- 51, to approve or deny proposed NSA electronic surveillance techniques and procedures. 2. Third-Party Information. The fact that the Attorney General was OLC’s sole client for purposes of the legal advice provided in the Olson Memorandum is fatal to DOJ’s attempt to invoke Exemption 5 for another reason. Legal advice based on information provided by a non- client is not privileged. See Brinton, 636 F.2d at 604. DOJ concedes that the NSA, not the Attorney General, provided OLC information about its contemplated intelligence activities, which formed the basis of the Olson Memorandum’s analysis. (Colborn Decl. ¶¶ 12, 16.) The Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 20 of 28 15 #61782v1 D.C. Circuit has repeatedly held that the attorney-client privilege does not attach to legal advice provided by agency attorneys to agency clients when the advice involves “neutral, objective analyses” of how the law applies to a set of facts provided by outside entities, such as companies or taxpayers under audit. Coastal States, 617 F.2d at 862-63; see also Tax Analysts I, 117 F.3d at 618-19; Schlefer, 702 F.2d at 245. More to the point, another court in this District has held that the attorney-client privilege does not attach to attorney-client communications based on information “provided by an agency other than the agency or executive branch entity/official that is asserting the attorney-client privilege.” EPIC, 584 F. Supp. 2d at 80. As that court noted, although other privileges or exemptions may shield such information from disclosure, the attorney-client privilege does not. See id. Consider the following scenario, which illustrates the failure of the DOJ to meet its burden. Suppose the Olson Memorandum served roughly the same function the Wainstein Memorandum did 23 years later: it advised the Attorney General as to the constitutionality of proposed NSA surveillance procedures in order to help him decide whether he ought to approve those procedures, pursuant to responsibilities vested in him and him alone under § 2.3 and § 2.4 of EO 12333, 46 Fed. Reg. at 59,950-51. (See McCraw Decl., Ex. 1 at 1-3, 8-10.)9 In order to provide the Attorney General the requested legal advice, OLC receives from the NSA its proposed surveillance procedures, to which OLC applies its constitutional analysis. In this scenario, the Olson Memorandum would not be covered by the attorney-client privilege, because OLC is providing legal advice to its client based on information provided by a non-client. See EPIC, 584 F. Supp. 2d at 80; see also Tax Analysts I, 117 F.3d at 618-19; Coastal States, 617 9 As discussed in note 5, supra, a 2008 amendment to EO 12333 requires the Attorney General to consult with the Director of National Intelligence before deciding whether to approve surveillance procedures. But in 1984, when OLC produced the Olson Memorandum, the decision was assigned solely to the Attorney General. Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 21 of 28 16 #61782v1 F.2d at 862-63; Schlefer, 702 F.2d at 245. This scenario is entirely consistent with the facts averred to by DOJ’s declarant,10 and that alone reveals the inadequacy of DOJ’s declaration. 3. Confidentiality. Finally, DOJ’s declarant says nothing about how widely the Olson Memorandum has been shared or circulated within or outside DOJ. Nor does he say what steps have been taken to protect the confidentiality of the memorandum. In light of these omissions, the D.C. Circuit’s decision in Coastal States, 617 F.2d at 863-64, squarely forecloses summary judgment in favor of DOJ. But the problem for DOJ here is not merely its declarant’s silence. There is evidence in the record that suggests the Olson Memorandum has been circulated widely within the executive branch, and DOJ has not explained how those officials who have had access to the memorandum fall within the bounds of the attorney-client relationship between OLC and the Attorney General. See Mead Data, 566 F.2d at 253 n.24 (only officials within client agency “who are authorized to speak or act for the organization in relation to the subject matter of the communication” fall within the scope of attorney-client relationship); Coastal States, 617 F.2d at 863 (same). For one thing, the record shows that, beyond the Attorney General, attorneys at DOJ’s NSD and one or more officials at the NSA have or have had access to the Olson Memorandum. (McCraw Decl., Ex. 1 at 4 n.4; Colborn Decl. ¶ 16.) For another, a number of other executive branch officials have cited to it in congressional testimony as a “seminal OLC opinion” that “govern[s] the conduct of collection activities under Executive Order 12333,” indicating that they, too, have had access to the Olson Memorandum. (McCraw Decl., Ex. 2 at 22.) “To the extent that any 10 Notably, DOJ has admitted that the Olson Memorandum concerned “contemplated intelligence activities,” suggesting that they were at a stage where they would have required the Attorney General’s signoff under § 2.3 or § 2.4 of EO 12333, 46 Fed. Reg. at 59,950-51. (Colborn Decl. ¶ 12 (emphasis added); see also Statement of Material Facts as to Which Def. Contends There Is No Genuine Issue ¶ 5 (May 5, 2017), ECF No. 13-2.) Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 22 of 28 17 #61782v1 information, including factual information contained within the records, was relayed to anyone outside the sphere of those who needed to know the information within the organization, that information cannot be withheld, and the records must be produced completely or in a redacted form if another exemption justifies the withholding.” Cuban, 744 F. Supp. 2d at 80.11 For the foregoing reason, DOJ has not satisfied its burden of showing that the attorney- client privilege applies to the Olson Memorandum under Exemption 5. B. THE OLSON MEMORANDUM IS THE WORKING LAW OF DOJ Even if the Olson Memorandum were once shielded by the attorney-client privilege, FOIA would still require its release as “working law.” When a document has come to “embody [any agency’s] effective law and policy,” it is “working law”— in this case, DOJ’s working law with respect to the Fourth Amendment limitations on electronic surveillance under EO 12333. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975). A document that constitutes 11 DOJ cites two cases to support the application of the attorney-client privilege to the Olson Memorandum. Neither undercuts The Times’s arguments. Electronic Privacy Information Center v. Department of Justice, No. 06-cv-214 (RCL), 2014 U.S. Dist. LEXIS 43187, at *4-5 (D.D.C. Mar. 31, 2014), held that the OLC documents at issue in that case were protected by the attorney-client and deliberative-process privileges—relying principally on the latter and providing no analysis with respect to the former. The Times does not dispute that some OLC records may be shielded from disclosure by the attorney-client privilege. But that case did not involve the Olson Memorandum or facts at all similar to those present in this case. As to American Civil Liberties Union v. NSA (“ACLU”), No. 13-cv- 9198(KMW), 2017 WL 1155910 (S.D.N.Y. Mar. 27, 2017), the page DOJ cites to does not stand for the proposition DOJ claims it does. (See Mem. of Points & Auth. in Supp. of Def.’s Mot. for Summary Judgment at 9, ECF No. 13.) That page simply sets out the legal standard for the attorney-client privilege; it does not apply it to the Olson Memorandum. See ACLU, 2017 WL 1155910, at *9. In fact, the only analysis specific to the Olson Memorandum in that decision discusses why the court did not think the working-law exception to Exemption 5 applied. Id. at *10-11. The court provided no affirmative analysis of why the attorney-client privilege may or may not have applied to the Olson Memorandum. That was at least in part because plaintiffs in that case had not argued in their opening brief that DOJ had failed to satisfy the elements of the attorney-client privilege. Id. at *10. (Rather, plaintiffs’ argument focused on why working law overcame the attorney-client privilege.) Moreover, the court’s only affirmative ruling on the attorney-client privilege was that “OLC has sufficiently justified its exemptions under the deliberative process and attorney-client privileges.” Id. That ruling referred to a number of OLC documents at issue in that case. It is not clear from the court’s ruling which privilege the court held to cover the Olson Memorandum. The deliberative- process privilege remained available in that case because the FOIA request was filed before the effective date of the FOIA Improvement Act of 2016, Pub. L. No. 114-185, § 2(2), 130 Stat. 538, 540, which removes the protections of the deliberative-process privilege from documents that are more than 25 years old. Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 23 of 28 18 #61782v1 working law loses the protection of Exemption 5. See Tax Analysts I, 117 F.3d at 619-20. The purpose of the working law exception is to prevent an agency from developing “a body of ‘secret law,’ used by it in the discharge of its regulatory duties . . . but hidden behind a veil of privilege because it is not designated as ‘formal,’ ‘binding,’ or ‘final.’” Coastal States, 617 F.2d at 867. The working law analysis is a functional one—examining the full range of relevant evidence available—and “cannot be determined mechanically from the decisionmaking process formally prescribed by” an agency. See Schlefer, 702 F.2d at 244; see also Tax Analysts v. IRS (“Tax Analysts II”), 294 F.3d 71, 82 (D.C. Cir. 2002) (working law analysis “not amenable to a categorical formula” and reliant on a wide array of relevant evidence). One important factor running through many working law opinions in this Circuit is the “precedential weight the agency accords to the documents”: whether later documents of the same type cite to and are guided by earlier documents and whether the agency preserves and indexes the documents for future reference. Schlefer, 702 F.2d at 241-44 & n.19; see also Taxation without Representation Fund v. IRS, 646 F.2d 666, 679 & n.20 (D.C. Cir. 1981); Coastal States, 617 F.2d at 869; cf. Brennan Ctr. for Justice v. Dep’t of Justice, 697 F.3d 184, 199-202 (2d Cir. 2012). Here, several pieces of evidence in the record indicate that the Olson Memorandum has become the precedential working law of DOJ with respect to the constitutionality of electronic surveillance procedures under the authority of EO 12333. First, the Wainstein Memorandum, which analyzed the legality of proposed NSA metadata analysis procedures under EO 12333, places the Olson Memorandum on par with circuit law as authority for the proposition that analysis of information legally obtained by the government does not implicate the Fourth Amendment. (McCraw Decl., Ex. 1 at 4 n.4.) Second, the precedential effect of the Olson Memorandum within DOJ is more than substantive; it is also methodological: the author of the Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 24 of 28 19 #61782v1 Wainstein Memorandum adopted the analytic framework that guided the memorandum’s Fourth Amendment inquiry directly from the Olson Memorandum. (Id. (despite assessing that examination of information lawfully obtained by the NSA would not implicate the Fourth Amendment, conducting constitutional analysis on the assumption that the Fourth Amendment might apply to this later examination simply because “the Olson Memorandum went on to consider” it).) He felt constrained by the methodology of analysis established by the Olson Memorandum, much the way a district court might follow the analytic framework established by a court of appeals. Third, the Wainstein Memorandum was written by an assistant attorney general for NSD in a memorandum for the Attorney General’s consideration, which suggests that the Olson Memorandum has taken on precedential effect not only within OLC, but throughout the components of DOJ responsible for assessing the constitutionality of electronic surveillance procedures under the authority of EO 12333.12 Fourth, the Olson Memorandum was indexed and available to other DOJ officials, as both OLC policy, see David J. Barron, Acting Ass’t Att’y Gen., OLC, Best Practices for OLC Legal Advice and Written Opinions, at 4-5 (July 16, 2010), available at http://bit.ly/1r7LHf3, and the Wainstein Memorandum demonstrate. See Schlefer, 702 F.2d at 241-44 & n.19; Coastal States, 617 F.2d at 869. Fifth, executive branch officials have repeatedly cited to the Olson Memorandum to justify to congressional oversight committees the legality of certain electronic surveillance activities authorized by EO 12333. (McCraw Decl., Ex. 2 at 22.) Indeed, according to Sen. Feinstein, executive branch officials have told the Senate 12 The Olson Memorandum would, as a matter of policy, have precedential effect within OLC. See David J. Barron, Acting Ass’t Att’y Gen., OLC, Best Practices for OLC Legal Advice and Written Opinions, at 2 (July 16, 2010), available at http://bit.ly/1r7LHf3 (“OLC opinions should consider and ordinarily give great weight to any relevant past opinions of [OLC],” and OLC “should not lightly depart from such past decisions, particularly where they directly address and decide a point in question . . . .”). Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 25 of 28 20 #61782v1 Judiciary Committee that they consider the Olson Memorandum a “seminal OLC opinion” and that it “govern[s] the conduct of collection activities under Executive Order 12333.” (Id.) To be sure, the D.C. Circuit has held that an OLC opinion prepared to provide legal advice to the FBI could not, without more, constitute the working law of the FBI. See Elec. Frontier Found. v. Dep’t of Justice (“EFF”), 739 F.3d 1, 9-10 (D.C. Cir. 2014) (holding that OLC opinion was not working law of the FBI “[o]n this record”). This case, however, presents the additional indicia of working law lacking in EFF. Indeed, in another case where those additional indicia were present, a court in the Northern District of California recently held that an OLC memorandum had become the working law of DOJ. At issue in that case was a memorandum on the legality of disclosing census information to federal investigators that OLC had prepared in response to a request for legal advice from the Department of Commerce. Elec. Frontier Found. v. Dep’t of Justice, No. 11-cv- 5221, 2014 U.S. Dist. LEXIS 110785, at *21 (N.D. Cal. Aug. 11, 2014). DOJ’s subsequent citation to the memorandum before the Foreign Intelligence Surveillance Court and—as with the Olson Memorandum—a congressional oversight committee, the Senate Select Committee on Intelligence, in order to support DOJ’s position on the legality of disclosing census information. Id. at *23-25 & n.2. DOJ’s contention that the Olson Memorandum does not constitute DOJ’s working law relies principally on a recent decision from a court in the Southern District of New York, which held that the Olson Memorandum does not constitute working law. (Mem. of Points & Auth. in Supp. of Def.’s Mot. for Summary Judgment at 9-10, ECF No. 13 (citing ACLU, 2017 WL 1155910, at *10-11).) But in that case, the court reached its conclusion by conflating two distinct doctrines—the express adoption exception and the working law exception to Exemption Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 26 of 28 21 #61782v1 5. The court held that the Wainstein Memorandum’s reliance on the Olson Memorandum failed to show that the latter had been “‘adopted, formally or informally, as the agency position on an issue.’” ACLU, 2017 WL 1155910, at *11 (quoting Brennan Ctr., 697 F.3d at 195). But the text the ACLU court quoted from the Second Circuit’s decision in Brennan Center, 697 F.3d at 195, articulates the standard for the express adoption exception, not the working law exception. Indeed, Brennan Center explicitly distinguished between the inquiry underlying the express adoption exception to Exemption 5—where a document has been “adopted, formally or informally, as the agency position on an issue or [is] used by the agency in its dealings with the public”—and the inquiry underlying the working law exception, which applies to documents that “embod[y] the agency’s effective law and policy.” Id. at 195 (internal quotation marks omitted); see also id. at 200-02; N.Y. Times v. Dep’t of Justice, 12-cv-3215(JSR), 2013 U.S. Dist. LEXIS 7396, at *12-13 (S.D.N.Y. Jan. 7, 2013). The express adoption exception comes into play where an agency has decided to rely on an otherwise privileged documents publicly to justify its policy decisions. See Brennan Ctr., 697 F.3d at 205. Unlike the working law exception, it does not turn on an agency’s internal use of a document but only the extent to which it relies on it publicly. In other words, the ACLU court held, in substance, that the Olson Memorandum does not satisfy the test for the express adoption exception and did not determine whether it fell within the working law exception. In any event, this Court is not bound by a decision of a court in the Southern District of New York. Accordingly, the Olson Memorandum—and by extension, the Cover Letter summarizing it—constitutes the working law of DOJ with respect to the constitutionality of electronic surveillance under EO 12333. Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 27 of 28 22 #61782v1 CONCLUSION For the foregoing reasons, Plaintiffs respectfully asks this Court: (i) to deny DOJ’s motion for summary judgment and to grant Plaintiffs’ cross-motion for partial summary judgment; (ii) to order DOJ to make public within 20 days, pursuant to 5 U.S.C. § 552, the portions of the Olson Memorandum and the Cover Letter that it contends are shielded solely by the attorney-client privilege under Exemption 5; (iii) to award the Plaintiffs the costs of this proceeding, including reasonable attorney’s fees, as expressly permitted by FOIA, id. § 552(a)(4)(E); and (iv) to grant such other and further relief as the Court deems just and proper. Dated: New York, NY June 12, 2017 Respectfully submitted, By: _/s/ David E. McCraw David E. McCraw, Esq. The New York Times Company Legal Department 620 Eighth Avenue, 18th Floor New York, NY 10018 phone: (212) 556-4031 fax: (212) 556-4634 e-mail: mccraw@nytimes.com Counsel for Plaintiffs Case 1:17-cv-00087-CRC Document 14 Filed 06/12/17 Page 28 of 28 #61787v1 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ___________________________________________ X NEW YORK TIMES COMPANY and : CHARLIE SAVAGE, : : : Plaintiffs, : : Civil Action No. 17-cv-87(CRC) - against - : : U.S. DEPARTMENT OF JUSTICE, : : : Defendant. : : : __________________________________________X DECLARATION OF DAVID E. McCRAW IN SUPPORT OF PLAINTIFFS’ CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT AND IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT I, DAVID E. MCCRAW, state and declare as follows under penalty of perjury: 1. I am a Vice President and Deputy General Counsel of The New York Times Company, publisher of The New York Times newspaper and nytimes.com. I am duly licensed to practice law in the State of New York and before this Court and serve as counsel of record for Plaintiffs The New York Times Company and Charlie Savage (collectively, “The Times”). I make this declaration from my own personal knowledge and a review of publicly available government documents and in opposition to Defendant’s motion for summary judgment and in support of Plaintiffs’ cross-motion for partial summary judgment. Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 1 of 25 #61787v1 2 The FOIA Request 2. On October 28, 2016, The Times filed a request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, with the Department of Justice’s (“DOJ”) National Security Division (“NSD”) and Office of Legal Counsel (“OLC”), seeking a memorandum for the Attorney General from Theodore B. Olson, the then-Assistant Attorney General for OLC, dated May 24, 1984, and bearing the subject line “Re: Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Surveillance Act of 1978” (the “Olson Memorandum”). A true and correct copy of the request is attached as Exhibit A to the Declaration of Paul P. Colborn (the “Colborn Declaration”). (See Dkt. No. 13- 1.) 3. Subsequently, on December 13, 2016, The Times sent an email to OLC. In that email, The Times indicated that it believed that its October 28 request encompassed a cover letter transmitted with the Olson Memorandum (the “Cover Letter”). A true and correct copy of that email is attached as Exhibit B to the Colborn Declaration. (See Dkt. No. 13-1.) 4. On March 10, 2017, OLC responded to The Times’s FOIA request, asserting that it was withholding the Olson Memorandum and the Cover Letter in full pursuant to Exemption 5, 5 U.S.C. § 552(b)(5), and that parts of the Olson Memorandum were exempt from disclosure pursuant to Exemptions 1 and 3, id. § 552(b)(1), (b)(3). A true and correct copy of OLC’s response letter is attached as Exhibit C to the Colborn Declaration. (See Dkt. No. 13-1.) The Wainstein Memorandum 5. On November 20, 2007, Kenneth L. Wainstein, the then-Assistant Attorney General for NSD, transmitted a memorandum to the Attorney General, via the Acting Deputy Attorney General (the “Wainstein Memorandum”). The memorandum advised the Attorney Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 2 of 25 #61787v1 3 General on the legality of proposed NSA procedures for analyzing communications metadata associated with persons in the United States. The purpose of the Wainstein Memorandum was to aid the Attorney General in deciding whether to approve or deny the proposed procedures, which is his responsibility under Executive Order 12333, 46 Fed. Reg. 59,941, 59,950-51 (Dec. 4, 1981). A true and correct copy of the Wainstein Memorandum is attached as Exhibit 1. The Sen. Dianne Feinstein Statement 6. During a January 28, 2015, Senate Judiciary Committee hearing on the nomination of then-U.S. Attorney Loretta Lynch to be Attorney General, Sen. Dianne Feinstein, in colloquy with Ms. Lynch, stated that “executive branch officials have previously advised the committee of the existence of a seminal OLC opinion written by Ted Olson decades ago governing the conduct of collection activities under Executive Order 12333.” A true and correct copy of the confirmation hearing transcript is attached as Exhibit 2. 7. I declare under penalty of perjury that the foregoing is true and correct. Dated: New York, NY June 12, 2017 /s/ David E. McCraw Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 3 of 25 EXHIBIT 1 Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 4 of 25 U.S. Department of Justice I /] ,.-. . ,. -ck-1-•J 7 ' ' , '~.-.i I ,. _ ,, • t I ; National Security Division SECRET//COMINT//ORCON,NOFORN Washington, D.C. 20530 November 20, 2007 MEMORANDUM FOR THE ATTORNEY GENERAL \B-lf~ \o 1\ THROUGH: THE ACTING DEPUTY ATTORNEY GENE~ :'. ;~· FROM: Kenneth L. Wainstein KL U ;:. ; ~~ CC: SUBJECT: PURPOSE: Assistant Attorney General National Security Division Steven G. Bradbury Principal Deputy Assistant Attorney General Office of Legal Counsel . J ;:_ :· Proposed Amendment to Department of Defense Procedures to Permit the National Security Agency to Conduct Analysis of Communications Metadata Associated with Persons in the United States (S//SI) To Recommend Attorney General Approval Pursuant to Executive Order 12333 of a Proposed. Am~ndment to Procedures Governing the National Security Agency's Signals Intelligence Activities (S//SI) SYNOPSIS: The Secretary of Defense seeks your approval of proposed Department of Defense Supplemental Procedures Governing Communications Metadata Analysis ("Supplemental Procedures"). The Supplemental Procedures, attached at Tab A, would clarify that the National Security Agency (NSA) may analyze communications metadata associated with United States persons and persons believed to be in the United States. These Supplemental Procedures would amend the existing procedures promulgated pursuant to Executive Order SECRET//COMINT//ORCON,NOFORN Classified by: Reason: Declassify on: 20 November, 2032 .... f .. ;:~ .J Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 5 of 25 SECRET//COMINT//ORCON,NOFORN//Xl 12333.' That Order requires the NSA to conduct its signals intelligence activities involving the collection, retention, or dissemination of information concerning United States persons in accordance with procedures approved by the Attorney General. .Accordingly, changes to these procedures, such as those proposed here, also require your approval. We conclude that the proposed Supplemental Procedures are consistent with applicable law and we recommend that you approve them.2 (S//SI) The communications metadata that the NSA wishes to analyze-which relates to both telephone calls and electronic communications-is dialing, routing, addressing, and signaling infonnation that does not concern the substance, purport, or meaning of the communication. The procedures divide communications metadata into two catego1ies: telephonymetadata and electronic communications metadata. Telephony metadata includes such information as the telephone numbers of the calling and the called party. Electronic communications metadata includes such information as the e-mail address and the Internet protocol (IP) address of the computer of the sender and the recipient This communications metadata has been obtained by various methods, including pursuant to the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1801, et seq., and resides in NSA databases.3 NSA plans to analyze this data primarily using a technique known as "contact chaining." Contact chaining involves the identification of telephone numbers, e-mail addresses, or IP addresses that a targeted telephone number, IP address, or e-mail address has contacted or attempted to contact. Through the use of computer algorithms, NSA creates a chain of contacts linking communicants and identifying additional telephone numbers, IP addresses, and e-mail addresses of intelligence interest. On the basis of prior informal advice of the Office of Intelligence Policy and Review, NSA's present practice is to "stop" when a chain hits a telephone number or address believed to be used by a United States person. NSA believes that it is over-identifying numbers and addresses that belong to United States persons and that modifying its practice to chain through all telephone numbers and addresses, including those reasonably believed to be used by a United States person, will yield valuable foreign intelligence information primarily concerning non-United Stall.Cs persons outside 1 Procedures Governing the Activities of DOD Intelligence Components That Affect United States Per.sons (DOD Reg. 5 240 .1-R)(Dec. 1982 )(approved by the Attorney General on Oct. 4, 1982)("DOD Procedures") and its Classified Annex. The proposed Supplemental Procedures would clarify Procedure 5 of the DOD Procedures and its Classified Annex. (U) 2 This memorandum was prepared in consultation with the Office of Legal Counsel. (U) 3 This memorandum assumes that the NSA's initial acquisition of the information it wishes to analyze was lawful. (U) SECRET//COMINT//ORCON,NOFORN//Xl - 2 - Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 6 of 25 ) SECRET//COMINT//ORCON ,NOFORN//Xl the United States. It is not clear, however, whether NSA's current procedures permit chaining through a United States telephone number, IP address or e-mail address. (S//Sf) We conclude that the proposed communications rnetadata analysis, including contact chaining, is consistent with (i) the Fourth Amendment; (ii) FISA; and (iii) the electronic surveillance provisions contained in Title 18 of the United States Code. The Supplemental Procedures are also consistent with the requirements of Executive Order 12333. (S//SI) As you consider this proposed change, you should be aware of the following: (1) Congressional Oversight. At the request of the Secretary of Defense, NSA briefed the Select Cormnittee on Intelligence of the United States Senate and the Permanent Select Cormnittee on Intelligence of the United States House of Representatives on this proposed change before the Secretary signed the Supplemental Procedures. (2) Oversight ofNSA 's Activities Under the Supplemental Procedures. Because NSA has in its databases a large amount of communications metadata associated with persons in the United States, misuse of this information could raise serious concerns. The General Counsel of NSA has provided a letter, attached at Tab B, describing how NSA will oversee access to and use of this data and committing to report annually to you on NSA's communications metadata program. As part of this reporting, NSA undertakes to inform the Department of"the kinds of information that NSA is collecting and processing as communications metadata." Particularly as technology changes, this requirement is important because the legal standards govemi11g metadata are quite different from those governing the contents of a communication. We believe that the oversight and reporting regime that this letter describes is a reasonable one, and it informs our recommendation that you approve the Supplemental Procedures. (S//SI) (3) The Central Intelligence Agency's (CIA) Interest in Conducting Similar Communications Metadata Analysis. On July 20, 2004, the General Counsel of CIA wrote to the General Counsel of NSA and to the Counsel for Intelligence Policy asking that CIA receive from NSA United States communications metadata that NSA does not currently provide to CIA. The letter from CIA is attached at Tab C. Although the proposed Supplemental Procedures do not directly address the CIA's request, they do resolve a significant legal obstacle to the - dissemination of this metadata from NSA to CIA. (SI/SI/INF) (4) Department of Defense's (DOD) Interest in Allowing Other DOD Entities to Have Access to this Data and to Conduct Similar Analysis_ The DOD's General Counsel's Office has informed us that, in the future, other DOD entities may wish to obtain and analyze communications metadata using the same rules that NSA uses to do so. The proposed Supplemental Procedures do not apply to these other DOD entities, but you should be aware that SECRET//COMINT//ORCON,NOFORN//Xl - 3 - Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 7 of 25 SECRET//COMINT//ORCON,NOFORN//Xl such a request may be forthcoming. As part of its oversight responsibilities, the National Security Division will be briefed by DOD concerning what these other DOD entities are doing, or arc seeking to do, in this area before approving any such request. (S//SI) DISCUSSION: (U) The Fourth Amendment (U) The Fourth Amendment provides that: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. This provision protects against the unreasonable search and seizure of the contents of a communication in which a person has a reasonable expectation of privacy. See Katz v. U.S., 389 U.S. 347 (1967). We conclude that a person has no such expectation, however, in dialing, routing, addressing, or signaling information that docs not concern the substance, purport, or meaning of communications.4 We reach this conclusion with respect to "metadata" 4 As an initial matter, we note that the analysis of information legally within the possession of the Government is likely neither a "search" nor a "seizure" within the meaning of the Fomth Amendment. See, e.g., Jabara v. Webster; 691F.2d272, 277-79 (6th Cir 1982) (holding that the disclosure of information by an agency that lawfully possessed it to another agency does not implicate the Fourth Amendment); Memorandum for the Attorney General from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1978, at 59 (May 24 1984) ("Olson Memorandum") ("Traditional Fourth Amendment analysis holds that once evidence is constitutionally seized, its dissemination or subsequent use raises no additional Fourth Amendment question."). As noted, we assume for the purpose of this memorandum that the NSA has lawfully acquired the information it wishes to analyze. Nevertheless, the Olson Memorandum went on to consider the limits on the subsequeQt use of information when assessing the constitutionality ofNSA's surveillance activities under the Fourth Amendment. See id. In an abundance of caution, then, we analyze the constitutional issue on the assumption that the Fourth Amendment may apply even though the Government has already obtained the information lawfully. (S//SI) SECRET//COMINT//ORCON,NOFORN//Xl - 4 - Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 8 of 25 I J SECRET//COMINT//ORCON,NOFORN//Xl associated with both telephone calls and electronic communications.5 (SI/SI) The Supreme Couti has held that there is no reasonable expectation of privacy in telephone numbers dialed because a caller must convey the numbers to the telephone company to complete the call. See Smith v. Maryland, 442 U.S. 735, 743-44 (1979). In Smith, the Court concluded that the installation of a pen register was not a "search" within the meaning of the Fourth Amendment, and thus that no warrant was required to collect such infonnation. Id. at 745-46. This conclusion followed from the Court's previous holding in U.S. v. Miller, 425 U.S. 435 (1976), that an individual has no Fourth Amendment privacy interest in infonnation released to a third party and later conveyed by that third party to a governmental entity. Id. at 440. Accordingly, it is well settled that there is no reasonable expectation of privacy in the telephony metadata the NSA proposes to analyze.6 (S//SI) Likewise, there is no reasonable expectation of privacy in electronic communications rnetadata. For Fourth Amendment purposes, courts have considered e-mails Jo be analogous to telephone calls and to letters sent through the postal system. See U.S. v. Charbonneau, 979 F. Supp ll 77, 1184 (S.D. Ohio 1997); U.S. v. Maxwell, 45 M.J. 406,417 (C.A.A.F. 1996). Following the same approach as Smith, courts have consistently held that the Fourth Amendment is not implicated when the Government gathers information that appears on mail covers, including the name and address of the addressee and of the sender, the postmark, and the class of mail. See U.S. v. Choate, 576 F.2d 165, 174 (9th Cir. 1978); U.S. v. DePoli, 628 F2d 779 (2nd Cir. 1980); U.S. v. Huie, 593 F.2d 14 (5th Cir. 1979)(per curiarn). See also Vreeken v. Davis, 718 F.2d 343, 347-48 (10th Cir. 1983) (concluding that a mail cover, which.records information about the sender and recipient of a letter, is "indistinguishable in any important respect from the pen register at issue in Smith"). And courts have consistently found that individuals do not have a reasonable expectation of privacy in information pertaining to the use of electronic media that 5 It is important to note that this memorandum addresses only those types of metadata specifically identified in the Supplemental Procedures. As described above, NSA is required to report regularly to the Department on new types of information that it is treating as "metadata." IfNSA does so, we will evaluate whether such new information also falls outside the Fourth Amendment. (S//SI) 6 Smith continues to be cited by the Supreme Court and lower courts for the proposition that acquisition of telephone numbers does not implicate the Fourth Amendment. See, e.g., Ky/lo v. United States, 533. U.S. 27, 33 (2001); U.S. Telecom Commission v. FCC, 227 F.3d 450, 454 (D.C. Cir. 2000). (U) SECRET//COMINT//ORCON,NOFORN//Xl - 5 - Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 9 of 25 SECRET//COMINT//ORCON,NOFORN//XI does not reveal the substantive content of a communication.7 The electronic communications rnetadata the NSA proposes to analyze--dialing, routing, addressing or signaling information-is identical in all material respects to the infom1ation deemed not to implicate the Fomih Amendment in these lines of cases. (S//SI) Thus, when inte11Jreting the Fourth Amendment, the courts have drawn a consistent distinction between the substantive content of the communications (found to be protected in Katz) and the non-content infonnation (found to be unprotected in Smith, Miller and a number of lower court cases). The communications metadata implicated by the proposed Supplemental Procedures is limited to dialing, routing, addressing, or signaling information and is defined specifically to exclude any information that concerns the substance, purport or meaning of the communication. Thus it falls clearly within the second, unprotected catego1y of infomrntion. We conclude, therefore, that there is no reasonable expectation of privacy in this metadata and that the communications metadata analysis proposed by NSA does not implicate the Fourth Amendment. (S//SI) FISA's Electronic Surveillance Provisions (U) To fall within FISA's coverage of"electronic surveillance," an action must satisfy one of the four definitions of that tem1. None of these definitions cover the communications metadata analysis at issue here.8 (S) 7 See Thygeson v. U.S. Bancorp, WL 2066746 (D. Or. 2004) (noting the distinction between the website addresses at issue there, in which an employee had no reasonable expectation of privacy, and the contents of websites visited or e-mails sent). See also U.S. v. Hambrick, 225 F.3d 656 (4th Cir. 2000) (unpublished opinion) (holding that, although in certain circumstances a person may have a privacy interest in "content inform'atiori'' such as the substance of an e-mail, there is no privacy interest in infom1ation provided to the ISP for purposes of establishing the account, which, according to the court, is non-content information); U.S. v. Ohnesorge, 60 M.J. 946 (N.M. Ct. Crim. App. 2005) (holding that there is no reasonable expectation of privacy regarding information provided to an ISP). (S//SI) 8 As noted above, some of the metadata the NSA would analyze has been acquired pursuant to FISA and thus is subject to the minimization procedures applicable to that collection. The standard NSA FISA minimization procedures contain no restrictions that would prohibit the metadata analysis described herein. The NSA will continue to comply with these procedures, including with any restrictions on the dissemination of information. In addition, to the extent that any orders authorizing, under FISA, the collection of metadata impose minimization procedures that would restrict the metadata analysis in the manner proposed here by NSA, the NSA must continue to abide by the conditions in those orders. (S//SI) SECRET//COMINT//ORCON,NOFORN//XI - 6 - Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 10 of 25 SECRET//COMINT//ORCON,NOFORN//Xl Three of the four definitions of electronic surveillance are satisfied only when the communication is acquired "under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes." 50 U.S.C. § 180l(f)(l), (3), (4). This statutory expectation-of-privacy requirement adopts a tem1 of art from Fourth Amendment case law. See, e.g., Katz, 389 U.S. at 361 (Harlan, J., concurring). "[\V]herc Congress borrows terms of art ... it presumably knows and adopts ... the meaning [their] use will convey to the judicial mind unless otherwise instructed." Morissette v. United States, 342 U.S. 246, 263 (I 952). The legislative history confirms the applicability of this presumption in this instance. It repeatedly adverts to constitutional standards when discussing this provision. See, e.g., S. Rep. 95-701, at 37, 1978 U.S.C.C.A.N. at 4006 (noting that the provision "require[s] that the acquisition of inforrnation be under circumstances in which a person has a constitutionally protected right of privacy"); H.R. Rep. No. 95-1283, at 53 (same); S. Rep. No. 95-604, at 35, 1978 U.S.C.C.A.N. at 3937 (same). For the reasons stated above, there is no reasonable expectation of privacy in the communications metadata at issue here; therefore, NSA's proposed activity would not come within the definitions of electronic surveillance contained in subsections 180l(f)(l), (3) or(4). (S) The fourth definition of electronic surveillance involves "the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication .... " 50 U.S.C. § 1802(f)(2). "Wire communication" is, in tum, defined as "any communication while it is being carried by a wire, cable, or other like com1ection furnished or operated by any person engaged as a common carrier .... " Id. § 1801 (I). The data that the NSA wishes to analyze already resides in its databases. The proposed analysis thus does not involve the acquisition of a communication "while it is being carried" by a connection furnished or operated by a common carrier. (S//SI) Pen Register and Trap and Trace Provisions (U) The pen register and trap and trace surveillance provisions of FISA, 50 U.S.C. §§ 1841- 1846, and of the criminal law, 18 U.S.C. §§ 3121-27, do not apply to the communications metadata analysis that NSA wishes to conduct. (S//SI) First, for the purpose of these provisions, "pen register" is defined as "a device or process which records or decodes dialing, routing, addressing or signaling information." 18 U.S.C. § 3127(3); 50 U.S.C. § 1841 (2). When NSA will conduct the analysis it proposes, however, the dialing and other infonnation will have been already recorded and decoded. Second, a "trap and trace device" is defined as "a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing and signaling information." 18 U.S.C. § 3127(4); 50 U.S.C. § 1841(2). Again, those impulses will already have been captured at the point that NSA conducts chaining. Thus, NSA's communications metadata analysis falls outside the coverage of these provisions. (S//SI) SECRET//COMINT//ORCON,NOFORN//Xl - 7 - Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 11 of 25 SECRET//COMINT//ORCON,NOFORN//Xl Title III (U) The federal criminal wiretap statute, Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510, et seq., prohibits the unauthorized "intercept[ ion]" of any wire, oral or electronic commmtication, id. at § 2511 ( l ), which is defined as the acquisition of the "contents" of the communication, id. at § 2510( 4). It also prohibits the use and disclosure of the "contents" of such a communication if it was unlawfully intercepted. See id. at§ 2511(1). For the purpose of these prohibitions, "contents" is defined as "information concerning the substance, purport, or meaning of that communication." Id. § 2510(8); see United States v. New York Telephone Co., 434 U.S. 159 (1977) (holding that Title III does not cover the acquisition of metadata with pen registers). By its tem1s, the Supplemental Procedures' definition of the communications metadata to be analyzed excludes information about the substance, purport, or meaning of the communication. For iliis reason at least, the prohibitions of section 2511 (I) do not apply to the proposed communications metadata analysis. (S//SI) Executive Order 12333 and Related Procedures (U) Executive Order 12333 requires the NSA to conduct its signals intelligence activities involving the collection, retention, or dissemination ofinformation concerning United States persons in accordance with procedures approved by the Attorney General. See id. § 2.3; § 2.4.9 These procedures must pem1it tile collection, retention, and dissemination of certain types of infomrntion including foreign intelligence infonnation in a manner that protects constitutional and other legal rights and limits the use of the information to lawful government purposes. See id. § 2.4. The Attorney General approved the current Department of Defense procedures and Classified Annex in October 1982. (U) . The current DOD procedures and their Classified Annex may be read to restrict NSA's abillty to conduct the desired communications metadata analysis, at least wiili respect to metadata associated with United States persons. In particular, this analysis may fall within the procedures' definitions of, and thus restrictions on, the "interception" and "selection" of communications. 9 In addition, section 2.5 of Executive Order 12333 provides that the "Attorney General hereby is delegated the power to approve the use for intelligence purposes, withln the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes." Because individuals have no reasonable expectation of privacy in the types of metadata at issue here, no warrant would be required to analyze this information for law enforcement purposes. In addition, the analysis of infomrntion legally within the possession of the government is likely neither a "search" nor a "seizure" within the meaning of the Fourth Amendment. See note 4, supra. Section 2.5 thus does not require the Attorney General to approve NSA 's proposed analysis of communications metadata. (S) SECRET//COMINT//ORCON,NOFORN//Xl - 8 - Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 12 of 25 SECRET//COMINT//ORCON,NOFORN//Xl Accordingly, the Supplemental Procedures that would govern NSA's analysis of communications rnetadata expressly state that the DOD Procedures and the Classified Annex do not apply to the analysis of communications metadata. Specifically, the Supplemental Procedures would clarify that "contact chaining and other metadata analysis do not qualify as the 'interception' or 'selection' of communications, nor do they qualify as 'us[ing] a selection tenn,' including using a selection term 'intended to intercept a communication on the basis of. .. [some] aspect of the content of the communication." Once approved, the Supplemental Procedures will clarify that the communications metadata analysis the NSA wishes to conduct is not restricted by the DOD procedures and their Classified Annex. (S//SI) The Supplemental Procedures define the tenns "communications metadata," "contact chaining," and "metadata analysis." The ~upplemental Procedures also state that NSA will conduct contact chaining and other metadata analysis only for valid foreign intelligence purposes; disseminate the results of its analysis in accordance with current procedures governing dissemination of information concerning U.S. persons as set forth in Section 4.A.4 of the Classified Annex; and investigate any apparent misuse or improper dissemination of metadata and report the same to the appropriate oversight organization(s). (S//SI) In addition, the NSA letter accompanying the Supplemental Procedures proposes a regulatory and oversight regime for the handling of communications metadata of U.S. persons. NSA states that access to communications metadata will be restricted to only those personnel with a need for this data in the performance of their official duties. Before gaining access to communications metadata, NSA or other persoru1e1 working under the authority of the Director ofNSA will receive mandatory training approved by the General Counsel ofNSA on the proper use of such databases and chaining tools. When logging into the electronic data system, users will view a banner that re-emphasizes key points regarding use of the data, chaining tools, and proper dissemination of results. NSA will also create an audit trail of every query made in each database containing U.S. communications metadata, and a network of auditors will spot-check activities in the database to ensure compliance with all procedures. In addition, the NSA Oversight and Compliance Office will conduct periodic super audits to verify that activities remain properly controlled. Finally, NSA will report any misuse of the information to the NSA's Inspector General and Office of General Counsel for inclusion in existing or future reporting mechanisms related to NSA's signals intelligence activities. (S//SI//OC,NF) NSA also states it will report any changes to this oversight regime to the Assistant Attorney General for the National Security Division, and, by October 15 of each year, will submit a report to the Attorney General regarding the kinds of information the NSA is collecting and processing as communications metadata, NSA's implementation of its compliance procedures, and any significant new legal or oversight issues that have arisen in connection with NSA's activities described in this memorandum. (C) SECRET//COMINT//ORCON,NOFORN//Xl - 9 - Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 13 of 25 SECRET//COMINT//ORCON,NOFORN//Xl As drafted, the Supplemental Procedures meet the requirements of Executive Order 12333. Together with the ctment approved procedures, they continue to permit the collection of foreign intelligence and other infonnation and, as explained above, the metadata analysis will be for lawful government purposes and consistent with the Constitution and other applicable law. (S) RECOMMENDATION: Based on the information provided by NSA and our analysis of applicable law, we conclude that there are no constitutional or statutory restrictions on NSA's proposed use of communications mctadata. We therefore recommend that you approve the Supplemental Procedures. (S//SI) SECRET//COMINT//ORCON,NOFORN//Xl - 10 - Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 14 of 25 Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 15 of 25 (S//SI) Department of Defense Supplemental Procedures Governing Communications Metadata Analysis Sec. 1 : Purpose (S//SI) These procedures supplement the Procedures found in DoD Regulation 5240.1-R and the Classified Annex thereto. These procedures govern NSA's analysis of data that it has already lawfully collected and do not authorize collection of additional data. These procedures also clarify that, except as stated in section 3 below, the Procedures in DoD Regulation 5240.1-R and the Classified Annex thereto do not apply to the analysis of communications metadata. Sec. 2: Definitions (S//SI) Communications metadata means the dialing, routing, addressing, or signaling information associated with a connnunication, but does not include information concerning the substance, purport or meaning of the communication. The two principal subsets of communications metadata are telephony metadata and electronic communications metadata. (a) Telephony "metadata" includes the telephone number of the calling party, the telephone number of the called party, and the date, time, and duration of the call. It does not include the substance, purport, or meaning of the communication. (b) For electronic communications, "metadata" includes the information appearing on the "to," "from," "cc," and "bee" lines of a standard e-mail or other electronic communication. For e-mail communications, the "from" line contains the e-mail address of the sender, and the "to," "cc," and "bee" lines contain the e-mail addresses of the recipients. "Metadata" also means (1) information about the Internet-protocol (IP) address of the computer from which an e-mail or other electronic connnunication was sent and, depending on the circumstances, the IP address of routers and servers on the Internet that have handled the communication during transmission; (2) the exchange of an IP address and e-mail address that occurs when a user logs into a web-based e-mail service; and (3) for certain logins to web-based e-mail accounts, inbox metadata that is transmitted to the user upon accessing the account. "Metadata" associated with electronic communications does not include infonnation from the "subject" or "re" line of an e-mail or information from the body of an e-mail. Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 16 of 25 lt.' (S//Sf} Contact chaining. Contact chaining is a process by which communications metadata is organized. It shows, for example, the telephone numbers or e-mail addresses that a particular telephone number or e-mail address has been in contact with, or has attempted to contact. Through this process, computer algorithms automatically identify not only the first tier of contacts made by the seed telephone number or e-mail address, but al,so the further contacts made by the first tier of telephone numbers or e-mail addresses and so on. Sec. 3: Procedures (a) (S//Sl) NSA will conduct contact chaining and other communications metadata analysis only for valid foreign intelligence purposes. (b) (S//SI) NSA will disseminate the results of its contact chaining and other analysis of communications metadata in accordance with CUITent procedures governing dissemination of information concerning US persons. See Section 4.A.4 of the Classified Annex to Procedure 5 of DoD Regulation 5240.1-R. (c) (U//FOUO) Any apparent misuse or improper dissemination ofmetadata shall be investigated and reported to appropriate oversight organization(s). See Procedure 15 ofDoD Regulation 5240.1-R. Sec. 4: Clarification (S//SI) For purposes of Procedure 5 ofDoD Regulation 5240. l-R and the Classified Annex ,thereJo, contact chaining and other metadata analysis do n<'t qualify as the "interception" or "selection" of communications, nor do they qualify as "us[ing] a selection term," including using a selection term "intended to intercept a communication on the basis of ... [some] aspect of the content of the communication." tes Secretary of Defense ' I Michael B. Mukasey Attorney General of the United States /0 ·-!J-~ Date Date Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 17 of 25 [~ y Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 18 of 25 SECJmTllCOMINTl/ORCON~OFOR..'l\'/00 NATIONAL.SECURITY AGENCY FORT (llfmRG&: G. MEAD.It. MAJIM.ANl') 20~ Ml:. J~ A. Baker Counsel for Intelligence Policy U.S. Department of .fuaticc 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Dear Jim: Serial: GC/120/06 28 Septembcs Signals Intelligence Directorate conducts ovendght ofNSA's ~vities involving communicatiom m.etada:ta. 3. NSA restricts accesJ to communications metadata to those analytic and other persmmel with a need for thi.a data bl tho perfor.mmce of their official duties. Derived From: NSA/CSSM } .. 52 Dated; 20041123 Declassify on.: 20291123 8ECRET//COMINT/IOR.CON,NOFORN/IX1 Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 19 of 25 I, SECUT//COMINT//ORCON,NOJ'ORN/IX! 4. Bmrc NSA or other pem.nncl working under the authority of the Director of NSA obtain access to communications m~ sucll persOnnel will receive mandatotY training, approved by the Oenera1 Counsel ofNSA, on the proper use of such databues and chaming tools. That ttai.nillg may be pro\lided on-line. Users will complate and aclmowledge the training before access. The training -will highlight tac sendtivi:t.y of the data and the users• obliga.tions when accessing the data, the remiction on '\lSe of the data to foreign intelligence purposes only~ and the requirement to follow required procedures when disseminating ~ts. · S. Before acoeas:ing the~ men will view a banner, displayed upon login atld positively aclmowledged by the user, that re--em.pba..U:za the key points regarding use of the data and ebajning tools, and proper dissemination of any results obtained.. 6. NSA create! audit ttails of C'Vf:t'i query made in each database eot1tafoing U.S. communications metadata, and lw a network of auditors who will be responsible for spot~ acti'ldties in the dAtabue to ensure that activities remain compliant with the procedures desc:n.Ded for the data's use. The 0\1ersight and Compliance Office conducts periodic super audits to verify 1bat activities remain propedy controlled. 7. NSA will report· any inisuse of the infbzmation to NSA's Inspector General and Office of Oeoeral Coumc1 for inclusion in existing or future reporting mechanimui relating to NSA's sigo.al3 intelligenee activities. (C) Should any of these stnte:nems c.bange, NSA will promptly infunn the AuisUmt Attomey Gent:ral.. National Security Div.Won; U.S. Department of Justice. In this wcm.t, NSA will discuss with the Assistant Attomey Geoeta1 what other steps NSA should take to ensure effective ownight of communications met.adm. of U.S. persons. ' . (C} In additi~ each year by October lStb, I will report to the Attorney Genmtl on (i) the kinds of information that NSA is collecting and processing as communfoatiO"!lS ~ (ii) NSA,s imp)ement.ation of the steps deacn"bed above; and (iii) any signilicant new legal or oversight iSS\1QI that have arisen bl connection with NSA's collection, proceWng. or ~on of connnu.nicati.ons ttWtadata of U.S. persons. VITO T. POTENZA Actiq General Counsel cc: General Counsel, Department of Defense General Counsel. Offioo of Director of National Intelligence . Civil Ltoerties Protection Officer. Office of Director of National Intelligence Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 20 of 25 EXHIBIT 2 Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 21 of 25 3 of 3 DOCUMENTS Copyright 2015 CQ-Roll Call, Inc. All Rights Reserved CQ Transcriptions All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of CQ Transcriptions. You may not alter or remove any trademark, copyright or other notice from copies of the content. SEN. CHARLES E. GRASSLEY HOLDS A HEARING ON THE NOMINATION OF LORETTA LYNCH FOR ATTORNEY GENERAL, PANEL 1 January 28, 2015 Wednesday EVENT DATE: January 28, 2015 TYPE: COMMITTEE HEARING LOCATION: WASHINGTON, D.C. COMMITTEE: SENATE COMMITTEE ON THE JUDICIARY SPEAKER: SEN. CHARLES E. GRASSLEY, CHAIRMAN WITNESSES: SEN. CHARLES E. GRASSLEY, R-IOWA CHAIRMAN SEN. PATRICK J. LEAHY, D-VT. RANKING MEMBER SEN. CHARLES E. SCHUMER, D-N.Y. SEN. KIRSTEN GILLIBRAND, D-N.Y. LORETTA E. LYNCH, U.S. ATTORNEY, EASTERN DISTRICT OF NEW YORK, NOMINATED TO BE U.S. ATTORNEY GENERAL SEN. ORRIN G. HATCH, R-UTAH SEN. DIANNE FEINSTEIN, D-CALIF. SEN. JEFF SESSIONS, R-ALA. SEN. JOHN CORNYN, R-TEXAS SEN. RICHARD J. DURBIN, D-ILL. SEN. LINDSEY GRAHAM, R-S.C. SEN. SHELDON WHITEHOUSE, D-R.I. SEN. MIKE LEE, R-UTAH SEN. AMY KLOBUCHAR, D-MINN. Page 1 Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 22 of 25 TEXT: GRASSLEY: Good morning. I welcome everyone to this very, very important hearing. Before we start, I'd like to state a few things. These are some ground rules, pretty much the same as what former chairman and my friend Senator Leahy and others have done -- stated in the past. I want everyone to be able to watch the hearing without obstruction. If people stand up and block the view of those behind them, or speak out of turn, it's not fair or considerate to others. So officers would then remove those individuals. I know that there's a lot to protest regarding this administration's policies, but this isn't the time or place to do it. Before I turn to our opening statements, I wanted to go over a couple of housekeeping items, and explain how we're going to proceed. Senator Leahy and I will give our opening statements. Then I will call on Senators Schumer and Gillibrand to introduce the nominee. GRASSLEY: Following Ms. Lynch's opening remarks, we'll begin with the first round of questions, in which each senator will have 10 minutes. After the first round, we're going to do eight minute rounds of questions. I want everyone to know that I'm prepared to stay here as long as members have questions that they'd like to ask. I think this is a most fair way to proceed, both to the responsibilities of the Senate and senators, and, most importantly, to the nominee who has to sit here through all of this and answer our questions. And I think we all know that this is a very important position in the Cabinet, and we should do what we can to move it along within our rules. We have a lot of ground that we want to cover in live questioning. One final note on scheduling. I would like to take a short break of maybe 45 minutes sometime around 12:30 or 1:00. And I know that we have a series of stacked votes this afternoon, and in regard to, I think, 18 amendments we have to vote on, the plan right now is to keep this hearing going, even though it may be a very chaotic way to do things, and maybe not as respectful to the position of attorney general as it ought to be, but I don't know how else to get through the process, to get every question asked that wants to be asked. So I would ask that all of my colleagues remain very flexible and keep it going. And that means some accommodation by members on my side of the aisle to chair when I can't be here, over there voting. With that, I'm going to turn to my opening statement, then immediately go to Senator Leahy. Ms. Lynch, I've had a chance to talk to you privately on two occasions. I welcome you to the Senate Judiciary Committee. It's a very big day for you, and especially for family and friends that are proud of you. I congratulate you on your nomination. You've already been confirmed by the Senate, as U.S. attorney. But the process involved to serve as the 83rd attorney general is a bit more rigorous. For one thing, U.S. attorneys don't even have hearings, let alone one like this. So I'm -- my hope is that we discuss some of the most important matters facing our nation, and in the process of doing that, then we'll get to know you a bit better. The fact of the matter is, this nomination comes at a pivotal time for the Department of Justice and for our country. And as I discuss some of those things, those are probably things you have had nothing to do with. But you Page 2 Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 23 of 25 investigative tools and techniques to deal with the ever-evolving threat that terrorism presents against us. With respect to the provisions that you refer to, I think it's -- I have always found it most interesting that the roving wiretap provision is actually a provision that was incorporated into the FISA statute after being utilized extensively for several years in narcotics prosecutions. It was one with which I was familiar as a young prosecutor as many of my colleagues across the country were as well. And the ability to describe to a court the nature of the offense, the nature of the activity and the use of attempts to shield one's self from electronic surveillance, which is part of what must be set forth in the application, have been invaluable tools. Of particular importance is the fact that all of this must go to a court -- obviously in the narcotics area it was an Article 3 court; in the FISA area, it goes to the FISA court -- but there is judicial review for this and it has been an important part of the techniques we have used in the war on terror, as have the other two provisions that you mentioned. I do think, however, that, with respect to FISA, there's always the ability, there's always the need to make sure that we are current not just with technology but with the most effective way to protect privacy as we go forward in this important act. I know that's something that you have spent a great deal of time on as well as many of your colleagues on this committee as well as on the Intelligence Committee. And I look forward to continuing those discussions with you should I be confirmed. With respect to the lone wolf provision, again, I think we have to obviously examine it carefully. Recent events, however, have underscored the importance of this as an issue in the war on terror. And so I would hope that we could move forward with any proposed changes to FISA with a full and complete understanding of the risks that are -- that we are still facing. And if any changes need to be made, again, after full and fair consideration with this committee, with the Intelligence Committee and the discussions that we need to have, making sure that we can still provide law enforcement with the tools that they need. Similarly with Section 215, I believe that the court order provision in there is an effective check and certainly a necessary check as we gather data from all types of sources. As I've always said, I'm certainly open to discussions about how they can be best modified if we need to modify them consistent with the goals of protecting the American people. And I commit to you, Senator, and indeed to all of this committee that I will always listen to all those concerns, be it about the FISA statute or any of the techniques we are using in the war on terror. FEINSTEIN: Thank you very much. As a member of both Judiciary and Intelligence, we have on both committees sought access to Office of Legal Counsel opinions, called OLC opinions. And these opinions often represent the best and most comprehensive expression of the legal basis for intelligence activities Congress is actually charged with overseeing. So without these opinions, you don't really know the legal basis upon which an administration has made -- has based certain activities. And it's been very frustrating to us. In particular, executive branch officials have previously advised the committee of the existence of a seminal OLC opinion written by Ted Olson decades ago governing the conduct of collection activities under Executive Order 12333. My question is, could we have your commitment that you will make a copy of this OLC opinion available to Page 22 Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 24 of 25 members of both the Intelligence and the Judiciary Committee? Probably your first tough question. LYNCH: Senator, I think that with respect to the OLC opinions, you are correct. They do represent a discussion, an analysis of legal issues on a wide variety of subjects when a variety of agencies come to the department for that -- that independent advice that we must provide them. Certainly, I'm not aware of the discussions that have been had about this previous opinion in terms of providing it. Certainly, I will commit to you to work with this committee, as well as the Intelligence Committee, to find a way to provide the information that you need, consistent with the department's own law enforcement and investigative priorities. FEINSTEIN: Thank you very much. This particular opinion is important. And it would be useful if we can review it. So thank you. On state secrets, on September 23, 2009, the attorney general issued a memorandum establishing new procedures and standards to govern DOJ's defense of an assertion of the state secrets privilege and litigation. Among other things, the memorandum stated that the DOJ would provide the periodic reports to Congress on the exercise of these state secrets privilege. Since 2009, only one such report from April 2011 has been provided. That report discussed the two cases in which the privilege had been invoked under the new policy. But those are no longer the only two cases. So I'd like to ask you if you could provide the appropriate Oversight Committees with the second periodic report on the exercise of state secrets privileges that discusses those cases which the privilege has been invoked on since April of 2011? LYNCH: Senator, you raised the important issue of the need to work with the Oversight Committee, be they this committee or Intelligence, in reviewing the actions of the Department of Justice, not just so the committees can carry out their work, but so that the American people can be aware of how the department carries out its work. I'm not familiar with the reports that you refer at this point. I certainly look forward to reviewing this issue, and I certainly commit to you that I will do my best to ensure that the department lives up to its obligations that it has set forth. FEINSTEIN: Good. And I will come back. This is an important question to us, so I will come back, and hopefully can get this -- get an answer, yes or no, within the next couple of weeks. So thank you very much. LYNCH: Senator, I look forward to learning more about the issue, and I look forward to sharing that with you, should I be confirmed, as well as any issues of concern that this committee or others have. FEINSTEIN: Thank you very much. Thank you, Mr. Chairman. GRASSLEY: Thank you, Senator Feinstein. Now it's Senator Sessions' turn. SESSIONS: Thank you, Mr. Chairman. It is great to have you here. I appreciate the opportunity to have a good discussion, I think, in our office, and having had -- I think I just passed my time in the Senate longer than I spent in the Department of Justice. It was a great honor to serve that. I have high ideals for this department. And we understand that the attorney general is a premier law enforcement officer, the senior law enforcement officer in America. He or she sets the tone for law in America, the commitment to law, and must resist politicizing law, and do the right thing on a daily basis. On occasion, you're called upon to issue opinions. OLC works for you, the Office of Legal Counsel, who issues Page 23 Case 1:17-cv-00087-CRC Document 14-1 Filed 06/12/17 Page 25 of 25 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ X THE NEW YORK TIMES COMPANY : and CHARLIE SAVAGE, : : : Plaintiffs, : : Civil Action No. 17-cv-87 (CRC) - against - : : U.S. DEPARTMENT OF JUSTICE, : : : Defendant. : : : __________________________________________X PLAINTIFFS’ STATEMENT OF MATERIAL FACTS NOT IN DISPUTE AND RESPONSE TO DEFENDANT’S STATEMENT OF FACTS NOT IN DISPUTE Pursuant to Local Civil Rule 7(h) of the Rules of the United States District Court for the District of Columbia, Plaintiffs The Times and Charlie Savage (collectively, “The Times”) hereby submit the following statement of material facts as to which The Times contends there is no genuine issue in connection with its cross-motion for partial summary judgment and The Times’s response to Defendant Department of Justice’s (“DOJ”) statement of material facts. Response to Defendant’s Statement of Material Facts Not in Dispute 1. The Times agrees that the facts set forth in ¶ 1 of DOJ’s statement of material facts are not in dispute. 2. The Times agrees that the facts set forth in ¶ 2 of DOJ’s statement of material facts are not in dispute, except that The Times disputes the applicability of Exemption 5 and the attorney-client privilege. Case 1:17-cv-00087-CRC Document 14-2 Filed 06/12/17 Page 1 of 7 2 3. The Times agrees that the facts set forth in ¶¶ 3-4 of DOJ’s statement of material facts are not in dispute. 4. The Times agrees that the facts set forth in ¶¶ 5-7 of DOJ’s statement of material facts are not in dispute. The Times disputes, however, the implication that these facts demonstrate the existence of an attorney-client relationship between the Office of Legal Counsel (“OLC”) and the executive branch entity for purposes of legal advice contained in the Olson Memorandum, which they do not. 5. The Times disputes the facts set forth in ¶ 8 of DOJ’s statement of material facts. Exemption 5 does not shield the Olson Memorandum or the Cover Letter from disclosure under FOIA. Therefore, even assuming Exemptions 1 and 3 permit the withholding of some portions of the Olson Memorandum, both it and the Cover Letter contain reasonably segregable, nonexempt information. 6. The Times disputes the facts set forth in ¶ 9 of DOJ’s statement of material facts. The Times submits that DOJ has not demonstrated that, for purposes of the legal advice rendered in the Olson Memorandum, OLC stood in an attorney-client relationship with any executive branch entity other than the Attorney General. 7. The Times agrees that the facts set forth in ¶¶ 10-13 of DOJ’s statement of material facts are not in dispute. The Times submits, however, that DOJ has not demonstrated that its general statements about the need for and propriety of confidentiality in ¶¶ 11 and 13 still apply to the Olson Memorandum, given (1) the memorandum’s circulation outside the attorney-client relationship and (2) that the memorandum has become the working law of DOJ with respect to the constitutional implications of electronic surveillance under Executive Order (“EO”) 12333, 46 Fed. Reg. 59,941 (Dec. 4, 1981). (Decl. of David E. Case 1:17-cv-00087-CRC Document 14-2 Filed 06/12/17 Page 2 of 7 3 McCraw (“McCraw Decl.”), Ex. 1, Ex. 2 at 22 (June 12, 2017).) Furthermore, DOJ has failed to explain what steps have been taken to protect the memorandum’s confidentiality. 8. The Times agrees that the facts set forth in ¶¶ 14-17 of DOJ’s statement of material facts are not in dispute. The Times submits, however, that whatever OLC purports its role in executive branch policymaking to be generally, DOJ’s treatment of the Olson Memorandum has converted it into the working law of DOJ with respect to the constitutional implications of electronic surveillance under EO 12333. (See McCraw Decl., Ex. 1, Ex. 2 at 22.) Plaintiffs’ Statement of Material Facts Not in Dispute 9. The Olson Memorandum analyzes the constitutionality of contemplated National Security Agency (“NSA”) surveillance activities pursuant to its authority under EO 12333. (McCraw Decl., Ex. 1 at 4 n.4, Ex. 2 at 22; Colbron Decl. ¶ 12, Ex. D (Vaughn index, second row).) 10. The cover letter transmitted with the Olson Memorandum partially summarizes the contents of the Olson Memorandum and so is shielded by Exemption 5 only to the extent that the Olson Memorandum is. (Colborn Decl. ¶ 11.) 11. The NSA is the non-Attorney General executive branch entity that DOJ’s declarant says provided information about its contemplated intelligence activity to OLC.1 (McCraw Decl., Ex. 1 at 4 n.4 (title of Olson Memorandum indicates that it analyzes information pertaining to NSA surveillance activities); Colborn Decl., Exs. A, C (acknowledging existence of OLC memorandum responsive to FOIA request that asked for Olson Memorandum by title).) 1 For ease of reference, The Times will refer to that non-Attorney General executive branch entity as the NSA. Case 1:17-cv-00087-CRC Document 14-2 Filed 06/12/17 Page 3 of 7 4 The Attorney-Client Relationship 12. The Attorney General was the only executive branch entity to which OLC rendered the legal advice contained in the Olson Memorandum. (Colborn Decl. ¶ 16, Ex. D (Vaughn index, second row).) 13. DOJ has failed to establish for what purpose the Attorney General “eventual[ly] transmi[tted]” the Olson Memorandum to the NSA. (Colborn Decl. ¶ 16.) 14. DOJ has failed to establish when the Attorney General “eventual[ly] transmi[tted]” the Olson Memorandum to the NSA. (Colborn Decl. ¶ 16.) 15. In 1984, at the time the Olson Memorandum was prepared, when OLC was asked to provide legal advice to a non-DOJ client agency, it responded directly to that agency; separately, it was often asked by DOJ clients to provide legal advice with respect to the activity of non-DOJ agencies, which were not OLC’s clients for purposes of those memoranda. Compare, e.g., Mem. Op. for the Deputy Legal Adviser, Dep’t of State, from Larry L. Simms, Deputy Ass’t Att’y Gen., OLC, Authority of the State Department Office of Security to Investigate Passport and Visa Fraud (Aug. 17, 1984), available at http://bit.ly/2s5e0OO; Mem. Op. for the Acting Gen. Counsel, Dep’t of Def., from Theodore B. Olson, Ass’t Att’y Gen., OLC, Effect of INS v. Chadha on the Authority of the Secretary of Defense to Reorganize the Department of Defense Under U.S.C. § 125 (Apr. 26, 1984), available at http://bit.ly/2t3rcB0, with Mem. Op. for the Acting Ass’t Att’y Gen., Civil Div., from Theodore B. Olson, Ass’t Att’y Gen., OLC, Authority of the Equal Opportunity Commission to Conduct Defensive Litigation (June 21, 1984), available at http://bit.ly/2r3wgEB; Mem. Op. for the Ass’t Att’y Gen., Land & Natural Res. Div., from Theodore B. Olson, Ass’t Att’y Gen., OLC, Application of the Resource Case 1:17-cv-00087-CRC Document 14-2 Filed 06/12/17 Page 4 of 7 5 Conservation and Recovery Act to the Department of Energy’s Atomic Energy Act Facilities (Feb. 9, 1984), available at http://bit.ly/2r3umEb. 16. The only attorney-client relationship DOJ has established for purposes of the legal advice contained in the Olson Memorandum existed between OLC and the Attorney General. (Colborn Decl. ¶ 16.) Third-Party Information 17. The NSA, not the Attorney General, provided OLC the information about contemplated intelligence activities whose constitutionality the Olson Memorandum analyzed. (Colborn Decl. ¶¶ 12, 16; McCraw Decl., Ex. 1 at 4 n.4 (indicating Olson Memorandum contains constitutional analysis of NSA surveillance activities).) 18. DOJ has not established that OLC provided legal advice to the NSA—whether directly or through the Attorney General—to guide a decisionmaking or policymaking process at the NSA. (Colborn Decl. ¶¶ 12, 16.) 19. DOJ has not established that the NSA was OLC’s client for purposes of the legal advice contained in the Olson Memorandum. (Colburn Decl. ¶¶ 12, 16.) Confidentiality 20. DOJ has not established how widely within and outside DOJ the Olson Memorandum has been circulated or shared since it was drafted. (See Colborn Decl. ¶¶ 11-22.) 21. DOJ has not established that it has taken any steps—let alone what steps it has taken—to preserve the confidentiality of the Olson Memorandum within the scope of the attorney- client relationship. (See Colborn Decl. ¶¶ 11-22.) Case 1:17-cv-00087-CRC Document 14-2 Filed 06/12/17 Page 5 of 7 6 22. Among the executive branch officials who have had access to the Olson Memorandum are, in 2007, the Assistant Attorney General for NSD (McCraw Decl., Ex. 1) and, at some point not specified by DOJ, one or more officials at the NSA (Colborn Decl. ¶ 16). 23. In addition, Sen. Dianne Feinstein has said that multiple executive branch officials involved in EO 12333 surveillance activities have indicated before the Senate Judiciary Committee that they have had access to the Olson Memorandum. (McCraw Decl., Ex. 2 at 22.) 24. DOJ has not explained how these and other officials who may have had access to the Olson Memorandum fall within the scope of the attorney-client relationship between OLC and the Attorney General. (See Colborn Decl. ¶¶ 11-22.) Working Law 25. On November 20, 2007, then-Assistant Attorney General for NSD Kenneth L. Wainstein sent a memorandum to the Attorney General, via the Acting Deputy Attorney General, with the subject line “Proposed Amendment to Department of Defense Procedures to Permit the National Security Agency to Conduct Analysis of Communications Metadata Associated with Persons in the United States” (the “Wainstein Memorandum”). (McCraw Decl., Ex. 1 at 1.) 26. The Attorney General must approve NSA surveillance techniques under § 2.3 and § 2.4 of EO 12333, 46 Fed. Reg. at 59,950-51, and to assist him in fulfilling that responsibility, the Wainstein Memorandum advised the Attorney General as to the legality of proposed NSA techniques for analyzing metadata pursuant to its authority under EO 12333. (McCraw Decl., Ex. 1 at 1-3, 8-10.) Case 1:17-cv-00087-CRC Document 14-2 Filed 06/12/17 Page 6 of 7 7 27. The Wainstein Memorandum gave equal precedential weigh to circuit law and the Olson Memorandum as to the Fourth Amendment implications of certain EO 12333 surveillance activities. (McCraw Decl., Ex. 1 at 4 n.4.) 28. The Wainstein Memorandum also cited the Olson Memorandum as authority for the analytic framework and methodology that guided its Fourth Amendment inquiry. (McCraw Decl., Ex. 1 at 4 n.4.) 29. The Olson Memorandum was indexed and available to subsequent officials within OLC. See David J. Barron, Acting Ass’t Att’y Gen., OLC, Best Practices for OLC Legal Advice and Written Opinions, at 4-5 (July 16, 2010), available at http://bit.ly/1r7LHf3. 30. Before the Senate Judiciary Committee, executive branch officials have relied on the Olson Memorandum to justify the legality of certain EO 12333-authorized electronic surveillance activities. (McCraw Decl., Ex. 2 at 22.) 31. Those officials have referred to the Olson Memorandum as a “seminal OLC opinion” that “govern[s] the conduct of collection activities under Executive Order 12333.” (McCraw Decl., Ex. 2 at 22.) Dated: New York, NY Respectfully submitted, June 12, 2017 /s/ David E. McCraw David E. McCraw, Esq. The New York Times Company Legal Department 620 Eighth Avenue, 18th Floor New York, NY 10018 phone: (212) 556-4031 fax: (212) 556-4634 mccraw@nytimes.com Counsel for Plaintiffs Case 1:17-cv-00087-CRC Document 14-2 Filed 06/12/17 Page 7 of 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ X THE NEW YORK TIMES COMPANY : and CHARLIE SAVAGE, : : : Plaintiffs, : : Civil Action No. 17-cv-87 (CRC) - against - : : U.S. DEPARTMENT OF JUSTICE, : : : Defendant. : : : __________________________________________X [PROPOSED] ORDER The Court, having fully considered Defendant’s Motion for Summary Judgment and Plaintiffs’ Cross-Motion for Partial Summary Judgment, and any response thereto, hereby ORDERS that Defendant’s motion be DENIED and ORDERS FURTHER that Plaintiffs’ motion be GRANTED, and partial summary judgment on behalf of the Plaintiffs is hereby ENTERED. IT IS SO ORDERED, this ___________ day of ____________, 2017 ____________________________ Hon. Christopher R. Cooper United States District Judge Case 1:17-cv-00087-CRC Document 14-3 Filed 06/12/17 Page 1 of 1
