USCA Third Circuit Case No. 17-1904 US District Court Case 17-0897 MOTION TO FILE EXHIBIT STAN J. CATERBONE AND THE NSA, OR NATIONAL SECURITY AGENCY, June 9, 2017

A LANDMARK CASE OF OBSTRUCTION OF JUSTICE, CIVIL RIGHTS, AND INTELLECTUAL PROPERTY
Stan J. Caterbone
ADVANCED MEDIA GROUP

Freedom From Covert Harassment & Surveillance,
Registered in Pennsylvania
1250 Fremont Street
Lancaster, PA 17603
www.amgglobalentetainmentgroup.com
stancaterbone@gmail.com
(717) 371-1566
IN THE UNITED STATES THIRD CIRCUIT COURT OF APPEALS
IN RE: STANLEY J. CATERBONE : 17-1904

APPELLANT : Lower Court Case No. 16-cv-867
:
:
MOTION TO FILE EXHIBIT

STAN J. CATERBONE AND THE NSA, OR NATIONAL SECURITY AGENCY
_________________________________________________________________________________________________
I Stanley J. Caterbone, APPEALANT , and appearing Pro Se, do hereby on this 9 th

day of JUNE 2017 do hereby file this MOTION TO FILE EXHIBIT STAN J. CATERBONE
AND THE NSA, OR NATIONAL SECURITY AGENCY AND hereby requests that this EXHIBIT
be considered during the adjudication of this case, in accordance with the ORDER dated
May 22, 2017.
Dated JUNE 9, 2017
___________/S/____________
Stan J. Caterbone, Pro Se Litigant

Freedom From Covert Harassment & Surveillance,
1250 Fremont Street
Lancaster, PA 17603
stancaterbone@gmail.com
717-327-1566
Notice and Disclaimer: Stan J. Caterbone and the Advanced Media Group have been slandered, defamed, and
publicly discredited since 1987 due to going public (Whistle Blower) with allegations of misconduct and fraud
within International Signal & Control, Plc. of Lancaster, Pa. (ISC pleaded guilty to selling arms to Iraq via
South Africa and a $1 Billion Fraud in 1992). Unfortunately we are forced to defend our reputation and the
truth without the aid of law enforcement and the media, which would normally prosecute and expose public
corruption. We utilize our communications to thwart further libelous and malicious attacks on our person, our
property, and our business. We continue our fight for justice through the Courts, and some communications
are a means of protecting our rights to continue our pursuit of justice. Advanced Media Group is also a
member of the media. Reply if you wish to be removed from our Contact List. How long can Lancaster County
and Lancaster City hide me and Continue to Cover-Up my Whistle Blowing of the ISC Scandel (And the Torture
from U.S. Sponsored Mind Control)?
17-1904 NSA EXHIBIT Page No. 1 of 462 Friday June 9, 2017

ACTIVE COURT CASES

J.C. No. 03-16-90005 Office of the Circuit Executive, United States Third Circuit Court of Appeals -
COMPLAINT OF JUDICIALMISCONDUCT OR DISABILITY re 15-3400 and 16-1149; 03-16-900046 re ALL
FEDERAL LITIGATION TO DATE
U.S. Supreme Court Case No. 16-6822 PETITION FOR WRIT OF CERTIORARI re Case No. 16-1149
MOVANT for Lisa Michelle Lambert
U.S.C.A. Third Circuit Court of Appeals Case No. 17-1904 CATERBONE v. NSA, et.al., The appeal of the
Preliminary Injunction For Emergency Relief Case No. 17-0868; Case No. 16-3284; Case No. 16-1149
MOVANT for Lisa Michelle Lambert;15-3400 MOVANT for Lisa Michelle Lambert;; 16-1001; 07-4474
U.S. District Court Eastern District of PA Case No. 17-01233 Chapter 11 Appeal for 17-10615; Case No.
17-0867 Preliminary Injunction from Middle District; Case No. 16-4014 CATERBONE v. United States,
et.al.; Case No. 16-cv-49; 15-03984; 14-02559 MOVANT for Lisa Michelle Lambert; 05-2288; 06-4650, 08-
02982;
U.S. District Court Middle District of PA Case No. 16- 2513 INJUNCTION; Case No. 16-cv-1751
PETITION FOR HABEUS CORPUS
Commonwealth of Pennsylvania Judicial Conduct Board Case No. 2016-462 Complaint against
Lancaster County Court of Common Pleas Judge Leonard Brown III
Pennsylvania Supreme Court Case No. 353 MT 2016; 354 MT 2016; 108 MM 2016 APPEALLANT for
Kathleen Kane
Superior Court of Pennsylvania 3575 EDA 2016 APPEALLANT for Kathleen Kane; Summary Appeal
Case No. CP-36-SA-0000219-2016, APPEALLANT for Kathleen Kane Case No. 1164 EDA 2016; Case No.
1561 MDA 2015; 1519 MDA 2015; 16-1219 Preliminary Injunction Case of 2016
Lancaster County Court of Common Pleas Case No. 16-05815 Injunction; Case No. 16-08472 INJUNCTION re
Pain Meds; Case No. 15-10167 Film Commission; Case No. 08-13373; 15-10167; 06-03349, CI-06-03401
U.S. Bankruptcy Court for The Eastern District of Pennsylvania Case No. 17-10615; Case No. 16-10157

EXHIBIT

www.amgglobalentertainmentgroup.com
mailto:amgroup01@msn.com
717.427-1621 Fax
Stanley J. Caterbone
Advanced Media Group
1250 Fremont Street
Lancaster, PA 17603
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
__________________________________________________________________________
American Civil Liberties Union, American :

Civil Liberties Union Foundation; :
American Civil Liberties Union of :
Michigan; Council on American-Islamic :
Relations; Counsel on American-Islamic :
Relations Michigan; Greenpeace, Inc.; :
National Association of Criminal Defense : Case No. 2006-cv-2095
Lawyers; James Bamford; Larry Diamond; : Case No. 2006-cv-2140
Christopher Hitchens; Tara McKelvey; and :
Barnett R. Rubin, : Honorable Anna Diggs Taylor
Plaintiffs :
:
v. :
:
National Security Agency/ :
Central Security Service, and Lieutenant :
General Keith B. Alexander, in his :
official capacity as Director of the National :
Security Agency and Chief of the Central :
Security Service, :
Defendants
__________________________________________________________________________________
BRIEF ON BEHALF OF AMICI CURIAE STANLEY J. CATERBONE

and ADVANCED MEDIA GROUP
IN SUPPORT OF PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT
_________/s/_______________
Date: February 20, 2007 Stanley J. Caterbone, Pro Se Litigant
220 Stone Hill Road
Conestoga, PA 174516
717-427-1821 facsimile
amgroup01@msn.com
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TABLE OF CONTENTS
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I. STATEMENT OF INTEREST OF AMICUS CURIAE ......................3
II. BRIEF IN SUPPORT OF AMICI CURIAE STANLEY J. CATERBONE AND

ADVANCED MEDIA ..5
III. ARGUMENT 21
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STATEMENT OF INTEREST OF AMICUS CURIAE

__________________________________________________________________
Stanley J. Caterbone is a private citizen and the majority shareholder of the United States
incorporated business Advanced Media Group. Stanley J. Caterbone was a whistle-blower and
shareholder in 1987 involving the United States Defense Contractor International Signal & Control,
Plc., known as ISC. In 1992, International Signal & Control was indicted and found guilty of among
other things a Billion Dollar Fraud and export violations concerning illegally shipping cluster bomb
technologies, missile defense systems, and other defense systems to foreign interests including South
Africa, Iraq and Saddam Hussein. Cluster bombs and related technologies are known to have been
exported to Iraq by the Chilean Arms Dealer Carlos Cardoen, a joint venture partner of International
Signal & Control. The Central Intelligence Agency is confirmed to have been involved in a covert
program to arm Iraq during the 1980s with close ties to International Signal & Control, which
allegedly included the help of the National Security Agency, a former end user of International Signal &
Control technologies under the early 1980s program Project X. A Presidential Finding in 1984 by the
Bush Administration was executed to implement the program of arming Saddam Hussein and Iraq with
the cluster bomb technologies. Serious allegations of these programs were the focus of investigations
that included the knowledge and supervision of then appointed nominee for the Director of Central
Intelligence Agency, Robert M. Gates.
Since 1987, Stanley J. Caterbone has been the victim of vast civil conspiracy that started in
1987 to cover-up allegations of fraud within International Signal & Control during the negotiations and
merger of International Signal & Control and Ferranti International of England. Stanley J. Caterbone
alleges that warrantless surveillance was used to obstruct justice and moot his constitutional rights in
an effort to divert attention away from his allegations of fraud within International Signal & Control
back in 1987, and afterwards to the present as a means to deny his access to the courts for remedy
and relief, and Federal False Claims Act violations. The business of Advanced Media Group has been
greatly compromised and intellectual property stolen during the late 1980s and early 1990s that
included information technology contracts with the United States Government.
In January of 2006, Stanley J. Caterbone was detained at every airport security check point,
which was during a policy of random checks, and taken out of line during travel from Philadelphia,
Pennsylvania, to Houston, Texas, and on to Puerto Vallarta, Mexico. At the Houston Airport, Stanley J.
Caterbone was falsely accused of carrying plastics explosives and taken to an interview room by
Homeland Security officials. Stanley J. Caterbone was also detained for three days in Mexico, and was
not provided with an opportunity to gain access to a flight out of the country by Mexican Officials.
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The interest of amicus in this case is ensuring that constitutional rights of private citizens are
not compromised and justice subverted through information obtained from warrantless surveillance
upon which there is no just cause for any allegations or association with terrorism. Whistle-Blowers
are inherently supportive of a system of checks and balances within our government that go beyond
our constitutional doctrines regarding the same. Whistle-Blowers ensure that the rule of law is
universally applied to all government officials in all branches of government. The Federal False Claims
Act and its provisions protect individuals from abuse of power, while providing relief and remedies for
those that were wronged and those that had the courage to cite a wrong.
It is too easy for present and future administrations to abuse their power and utilize
warrantless surveillance as a means of subverting and obstructing justice for those that are engaged in
Whistle-Blowing cases that concern National Security. Without the proper oversight and judicial
review, a Whistle Blower can be place on terrorist lists for malicious reasons without the knowledge or
just cause. This is in direct conflict with keeping our democracy free of corruption while adhering to
the spirit of the constitution in the manner our founding fathers envisioned.
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__________________________________________________________________________
BRIEF IN SUPPORT OF AMICUS CURIAE

__________________________________________________________________
Background Information: The following transcripts from National Broadcast Television, ABC News
Nightline and ABC News 20/20; provide material information as to the activities of International Signal
& Control and the importance of these matters with regard to National Security.
ABC NEWS 20/20 FEBRUARY 1, 1991
[Lynn Sherr ABC News 20/20 Correspondent] This is the story of how this deadly weapon,
designed for the U.S. military made its way form this country to Iraq. And how American Soldiers may
face the devastation of a cluster bomb if a ground war breaks out in the Persian Gulf. Federal Officials
believe Saddam Hussein got his arsenal thru a lethal combination bureaucratic foul ups in the U.S.
Government and simple greed.
Here is how the cluster bomb works. An artillery shell, an airplane, or a rocket launcher sends the
bombs toward their targets. Each bomb carries hundreds of smaller bomlets, something like hand
grenades. Cluster bombs can be used against ground troops or tanks, and can even scatter mines to
lie dormant for days. The bombs can spray thousands of pounds of sharp objects pins or even razor
blades. The shrapnel can rip through anyone or anything in its way, causing massive casualty among
civilians or ground troops. You can see the destruction in these buildings in Lebanon after a cluster
bomb attack.
How did Iraq obtain the cluster bombs and the ability to make their own? It was incredibly simple.
Investigators believe it started with International Signal & Control, A government contractor with
5,000 employees based in Pennsylvania, which build key components of cluster bombs in a subsidiary
in California. 20/20 has learned Federal Investigators believe ISC provided the technology, that is the
plans, to this man, Carlos Cardoen, Chilean arms dealer. Authorities believe he used the plans to
build the cluster bombs in Chile, then he shipped them to Iraq.
Whats wrong with all this? If the cluster bomb technology actually left the county, that is illegal
without U.S. Government permission, investigators say ISC never got. It is also illegal for a foreigner,
like Cardoen, to take the plans out of the United States without a license, which sources tell us, he
never obtained. The man who opened the door to Iraq for Cardoen, was this man Nasser Bedouin. He
is a Lebanese born middleman for Cardoen who is based in the United States. Bedouin traveled often
to Bagdad, and arranged for sale cluster bombs and other military hardware to Saddam Husseins
army. In his first television interview, he told us about the business of dealing in deadly weapons.
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[Nasser Bedouin, Arms Dealer] I can sell you a knife to peel an apple, if you cut someones
throat, thats your business. Weapons do not kill, who behind them kill.
[Lynn Sherr ABC News 20/20 Correspondent] With slick promotional videos, Cardoen marketed
his arms throughout the world. Arab countries were favorite customers.
[Cardoen Marketing Video] Each one of the bomblets of the cluster bomb is multi purpose and
contains an incendiary, anti personnel and anti armor detection.
[Lynn Sherr ABC News 20/20 Correspondent] This letter from Cardoen authorizes Bedouin to
sell cluster bombs to Saddam Hussein during his war with Iran. This letter says Cardoens company is
willing to take its share in helping Iraq in its time of need. We can provide you with our cluster bombs
at the lowest possible price. According to these contracts the sale of cluster bombs to Iraq was an
extremely lucrative business. February 24, 2984 3,000 cluster bombs sent to Saddam Husseins army
worth $21 million dollars. A few months later, another 3,000 cluster bombs, another $21 million
dollars. The supply of cluster bombs eventually totaled more than $400 million dollars. In fact,
Bedouin is suing his former boss for commission payments.
According to Bedouin, Cardoen not only sold the bombs produce in Chile to Saddam Hussein, he
actually set up a factory near Bagdad. So the Iraq President could mass-produce his own cluster
bombs. That was one of the first attacks by the military when the attack began. Its unknown
whether that plant is totally out of commission.
[Nasser Bedouin, Arms Dealer] He set up a factory to manufacture the cluster bomb. Um, ah
later stage for the fuses. And this is a complete project. I mean its completer from raw material to
finished product. Because the purpose in Iraq is to have control over the weaponry they have put in
their strategy.
[Lynn Sherr ABC News 20/20 Correspondent] Federal Investigators are now trying to bring
Carlos Cardoen to justice. But why didnt they find out about him sooner? He has been selling cluster
bombs to Iraq for nearly a decade. The U.S. Patent Office knew about Cardoen back in 1986. But
they didnt tell anyone else in the Federal Government about them. In a move that went apparently
unchecked in the highest levels of the government, Cardoen applied for his own patent for cluster
bombs in 1986. Based on some changes on previous designs, he received the patent two years later.
Getting the Patent is not illegal. But at a time when U.S. shipments of arms to Chile were banned, as
to all sales to Iraq, Why didnt the Patent Office raise any questions why was this foreigner dealing in
U.S. arms?
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Experts say bureaucratic infighting regularly causes such lapses. The Departments of Commerce,
State, and Defense, are supposed to control arms sales, and communicate with one another.
[Anthony Cordazman, Correspondent] - Even today, the same squabbling goes on, every day
within the Commerce, State, and Defense. The Administration can never agree on what kinds of laws
can be passed to correct this.
[Lynn Sherr ABC News 20/20 Correspondent] Carlos Cardoen denied our requests to speak on
camera. In an interview last year, he denied he did anything wrong.
[Carlos Cardoen, Chilean Arms Dealer] - And as long as a human being is an animal that needs to
defend himself, weapons are going to exist. I think that is wrong. As a human being I believe that
weapons are wrong. But they are a fact. And we have to live with facts.
The former head of ISC, James Guerin, who dealt with Chilean, said he did not provide anything to Cardoen to build
weapons. But Nasser Bedouin tells a different story.
[Nasser Bedouin, Arms Dealer] I believe that Dr. Carlos Cardoen got the plans to build the
cluster bombs from the United States.
[Lynn Sherr ABC News 20/20 Correspondent] Questions about the cluster bombs come at a
time when questions are being focused on how so many American designed weapons got into the
hands of Saddam Hussein. Senator John McCain.
[Senator John McCain] Theres not just one Saddam Hussein on this globe. Theres lots and lots
of them who at this time as we speak are acquiring technologies to give them the capabilities of
weapons of mass destruction because its a way of gaining victory on the cheap.
[Lynn Sherr ABC News 20/20 Correspondent] McCain has introduced legislation that would
severely penalize and company or countries that would sell weapons illegally or harbor arms dealers.
[Senator John McCain] To provide many of the kinds of weapons that we have today to many
nations, which are clearly offensive in nature, and are clearly far exceed their requirements to defend
themselves, is frankly unconscionable and must be brought to a stop.
[Lynn Sherr, ABC News 20/20 Correspondent] Basically what you are saying is hit them in the
pocketbook.
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[Senator John McCain] Hit them in the pocketbook and public exposure. No corporation or nation
likes to be branded as a nation that is involved in this illicit trafficking.
[Lynn Sherr ABC News 20/20 Correspondent] But public exposure and pressure will not shield
American Soldiers. If Saddam Hussein uses the cluster bombs he already has.
[Senator John McCain] And if there is one good thing that has come out of this Persian Gulf war
its to dramatically heighten the awareness of the people of the world to the American people of how
dangerous this proliferation of weapons of mass destruction can be.
[Hugh Downs, ABC News 20/20 Correspondent] God those things are vicious. Have there been
any indictments yet Lynn?
[Lynn Sherr ABC News 20/20 Correspondent] Ah, no Hugh, no indictments yet. Carlos
Cardoen has not been indicted, even though Federal Agents raided his headquarters office in Miami.
And U.S. Customs people took a number of documents, but no indictments yet, but there are
investigations going on.
[Hugh Downs, ABC News 20/20 Correspondent] If these things are dropped from airplanes,
and we have air supremacy, as it now has been said by our leaders, is there that much to worry about
for our troops?
[Lynn Sherr ABC News 20/20 Correspondent] Were told yes, because you dont need to an
airplane to a cluster bomb, they can also be used on rocket launchers and on unguided missiles, both
of which Iraq has. And incidentally, we talked about that bomb factory, even if it was badly damaged,
the cluster bomb factory he already has, were told in three to six months it can be operational again,
and anyway he likely has a big stockpile.
[Hugh Downs, ABC News 20/20 Correspondent] We of course, have these weapons also, and I
understand they are called something different?
[Lynn Sherr ABC News 20/20 Correspondent] Yes, if youre listening to a Pentagon Briefing,
dont listen for the term cluster bomb, there calling them Aerial Denial Weapons.
[Hugh Downs, ABC News 20/20 Correspondent] Thank you Lynn.
END
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ABC News Nightline - September 12, 1991
[Ted Koppel] incidentally the function of the senior review panel is to advise one man, the director
of central intelligence. And at least part of the period in question there was an acting director of the
CIA Robert Gates. Well attempt to pull some of these threads together when we come back.
Commercial Break
[Ted Koppel] When all is said and done, why should your or your representatives in Congress care,
eventually after all President Bush spoke and acted against Sadaam Hussein more forcefully than
anyone could have expected.
[Former President George H. Bush Speech] Were dealing with Hitler revisited, a totalitarianism,
a brutality, that is neglect and unprecedented in modern times.
[Vidoe-Gary Milhollin, Director, The Wisconsin Project] The more we gave Sadaam, the more
dangerous he got. And ultimately we had to go to war to destroy what we sold him.
[Ted Koppel] But its not a question of holding the Bush or Reagan Administrations to account for
having made mistakes with regards to their policies toward Iraq The issue is how those policies were
implemented.
As we reported over the past few months, The Atlanta Branch of an Italian Bank, BNL, was able to
funnel $Billions, some of it in U.S. Credits to Iraqs Military Procurement Network. The U.S.
Government knew, and turned a blind eye. Sophisticated Military Technology was illegally transferred
from a major U.S. company in Lancaster, Pennsylvania (International Signal & Control), to South
Africa, and Chile, and from there onto Iraq. The Iraqi borne designer of a chemicals weapons plant in
Lybia, set up shop in Florida, producing and shipping to Iraq chemical weapon components. The CIA,
FBI, and other U.S. agencies were made aware of the operation and did nothing to prevent it.
During the 1980s and into the 90s senior officials of both the Bush and Reagan Administration
encouraged the privatization of foreign policy, certainly towards Iran and Iraq. The policy may have
had merit - but there werent willing or in some instances werent successful in fighting it out in Capital
Hill so they found other ways. They made a mockery of the Export Control System, and they found
ways of encouraging foreign governments to do what our laws prohibited. They even knew or if not
were guilty of the grossest incompetence that U. S. companies were collaborating with foreign Arms
merchants in the illegal transfer of American Technology that helped Sadaam Hussein build is
formidable arsenal.
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This week, the CIA again told ABC News Nightline that our allegations over the past few months
regarding covert operations to supply Iraq with U.S. Arms and weapons technologies simply were not
true.
The CIAs Inspector General said a statement from the Agency [On Screen] - Has found to factual
support whatsoever for such an operation or for the involvement of Mr. Gates.
[Ted Koppel] At least one member of the Senate Intelligence Committee, Bill Bradley of New
Jersey, feels that there may be reason to doubt both those claims, and hell raise the issues next week
during the Gates Confirmation Hearings, next week.
The CIA also told us that its Inspector General has found no evidence of any off-the-books illegal
activity. But the CIA concedes, off-the-books activities, are not documented. Precisely so that
deniability can be preserved.
One thing is undeniable, this gun sight video of a stealth fighter bomber from the 32nd Tactical Fighter
Wing, last February attacking a bomb factory, on the outskirts of Bagdad U.S. Technology in the air,
destroying U.S. Technology on the Ground. The factory was built by Carlos Cardoen.
For all of us here at ABC News, Good night.
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ABC News Nightline - July 1991
[Ted Koppel] Carlos Cardoens role in shipping arms to Iraq has been known for years. His
connection with Robert Gates has not. By the mid 1980s Cardoen was the largest private supplier of
weapons to Iraq. In all he has believed to ship a half billion dollars worth of arms and advanced
technologies to Bagdad. At a factory 500 miles north of Santiago, Cardoen produced tens of
thousands of bombs and other equipment, absolutely essentially to Iraq during its eight year war with
Iran.
The material would be loaded aboard regular Iraqi airway flights flown from Santiago to Bagdad.
Cardoen did not simply ship weapons, he set up entire factories capable of producing bombs and other
explosives the components would be shipped from all over the world and then assembled in Iraq. One
of those factories turned out Cluster Bombs.
As we first reported on the 24th of May, much of the sophisticated military technology that Cardoen
was shipping to Iraq came from the United States. This company in sleepy Lancaster, Pennsylvania, is
believed to be the source for some of the Cluster Bomb technology. But there was more. Nasser
Bedouin is also an arms dealer. He acted as a middleman between Carlos Cardoen and Iraq.
[Nasser Bedouin on Video] I am aware of Carlos Cardoen getting some type of technology from
the air fuel bomb from the United States. I believe Iraq has a viable fuel air explosive.
[Ted Koppel] These explosives are designed to explode just above ground level like miniature
atomic bombs, literally sucking all available oxygen out of the air. It is clear that Carlos Cardoens
special relationship with the United States was not known by all Departments. When the Commerce
Department inquired about that relationship in early 1987, it received a cable from the U.S.
Ambassador to Chile saying although Cardoen is involved with the sale of armaments, and he has
made his fortune from it, he is considered to be a responsible recipient of U.S. products. In fact by
1987, the covert relationship between the CIA and Cardoen was already well established.
In 1983 the Reagan Administration had become alarmed at how poorly the Iraqi military was doing
against Iran. A decision was made at the highest level of Government to begin helping Iraq.
Indeed ABC News has learned only today, that around that time, in 1983 Ronald Reagan issued a
highly classified Presidential Finding stating that it was important to the National Interests that arms
and technical assistance be covertly funneled to Iraq and with the help of the CIA. More on the
significance of that Presidential Finding in a moment.
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What it unleashed was a flood of US help to Iraq. A former CIA operative who was involved in the
program has told us of a series of covert operations, in which loads of 727s were flown into Iraq. On
one such mission in 1987 our source tells us he accompanied a planeload of Soviet built one hundred
twenty-two missiles. The Soviet equipment was shipped because it would be compatible with what
the Iraqis already had. By 1987, there was at least one such flight a week into Bagdad.
Our former CIA source recalls bringing in $100 dollar bills in a bowling bag, they would also carry
whiskey, cartons of cigarettes and copies of Penthouse magazines to speed up the unloading process,
which usually took place at night. Once the White House has authorized the Covert Assistance
Program to Iraq, the CIA took over. In effect the former CIA operative told us the covert operation
amounted to here is what we want you to do, and we really dont want to know too much about how
you do it.
Our source tells us that he has at least one meeting in 1986 in Florida between Robert Gates and
Carlos Cardoen, the Chilean Arms Dealer. Other sources have told us of other such meetings. Here in
the United States and in Europe. Which brings us to an unsolicited statement that was telephoned in
to Nightline from the Central Intelligence Agency almost a month ago on June 17th. Allegations, the
statement read that Robert Gates facilitated illegal shipments to Iraq during the 1980s are totally
without basis. Since we had never requested a statement of Mr. Gates, we didnt know quite what to
make of it at the time. But then today we learned of that Presidential Finding, authorizing the Covert
shipment of arms to Iraq.
It would be true then that Robert Gates did not facilitate illegal shipments to Iraq, under the
Presidential Finding, the shipments would have been quite legal. But during this last set of
confirmation hearings, back in 1987, Robert Gates assured the Senate Confirmation Committee that he
would always keep the Committee current on ongoing covert operations. Indeed the CIA is supposed
to provide the Intelligence Committee with quarterly reports. According to well-informed sources on
the Committee it has had no briefings on the Covert arms pipeline to Iraq. That, said one Senator on
the Committee would be a total breach of trust. What would it do to the Gates Nomination? I asked.
It would probably be enough said the Senator, to derail the Nomination.
Again, an excerpt from Mr. Gates Testimony before the Senate Intelligence Committee in 1987:
[Robert Gates 1987 on video] If you cannot have a system in which you can have some
confidence between A the branches of government, and confidence between the senior officials of the
Government, A that they abide by the rules, and B that they will deal with one another honestly, then
I think the system begins to collapse.
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[Ted Koppel] Late this evening, the Whitehouse communicated its response to the charges
contained in this report, the Whole story is unfounded. There were never any sales; covert or overt
to Iraq or Iran through a third country. And Mr. Gates never met with Carlos Cardoen.
Well be back with more, in a moment.
[Ted Koppel] For the viewers, this is Alan Freidman, New York Correspondent for the Financial
Times of London, and a member of the team investigating Robert Gates. Alan Id like to begin by
repeating a statement, and let me put my specs on for a moment, the White House. This story is
unfounded and there were never any sales covert or overt to Iraq or Iran through a third country. And
Mr. Gates never met with Carlos Cardoen.
Ah, ah a fairly carefully drafted statement one would think.
[Alan Friedman, New York Correspondent for the Financial Times of London] Yes Ted, I
think that is right, I would agree with the statement that there were never any sales Iraq through a
third party. Indeed what we found was that some of the cluster bomb technology and fuel air
technology was given smuggled down to Chile, for use that were used and made and shipped on
through to Iraq. In terms of the um statement by the White House that there were never any
meetings between Mr. Gates and Mr. Cardoen, we have a number of sources, some of them personally
involved in these operations, one of them who was personally and physically an eye witness present at
a meeting, in Florida, with Mr. Gates and Mr. Cardoen in 1986. And who was told my Mr. Gates, about
other meetings that he had with Mr. Cardoen.
[Ted Koppel] Now Congressman Gejdenson, I realized that we sort of unleashed an awful lot of
material on you today, but to what degree does this fit in with those thousands of documents that you
subpoenaed with the information that you have?
[House Representative Sam Gejdenson of the House Foreign Affairs Committee] Well we
just got the documents after a several month battle with the Administration to pry them loose and it
took the vote of a subpoena by the subcommittee to start the flow of those documents, but its
certainly consistent with the information that we got with Committee staffs with some of those people
that said they were at those meetings, ah as well. I think that the important thing to remember here
is that the United States in 1982 under the Reagan Administration took Iraq off the terrorist list at a
time when some of the worst terrorist of the world were being harbored by Saddam Hussein, and we
suddenly changed our policy and continued to keep Iraq off the terrorist list, enabling the export of
dual use, ah items that can be used for dual use from the United States to Iraq, as well as these sales
that went indirectly to Iraq.
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So, all through a time when they were harboring terrorists, and they killed 5,000 Kurds in 1988, and
as recent as six days before the invasion of Kuwait, when I and several members of Congress, tried to
stop the subsidy of grain sales to Iraq, the Bush Administration continued to impose any sanctions
against Iraq.
[Ted Koppel] Well of course theres a huge difference between grain sales and the shipment of
entire plants for the building of a cluster bomb factory.
[House Representative Sam Gejdenson of the House Foreign Affairs Committee] Except for
what I think you find is that a pattern by both the Bush and Reagan Administrations to trying to assist
Saddam Hussein. What we found at one Hearing was a document from the State Department, ah that
said that the United States was ready to sell weapons to Iraq as long as they were for the personal
protection of Saddam Hussein. A policy that ignored all the outrages, a policy that ignored I think the
intent of the Congress and the American People. And that the allegations that weve gotten from a
number of sources seem to be consistent with that. The United States did everything it could under
the Reagan and Bush Administrations to assist Saddam Hussein.
[Ted Koppel] Alan, I know that one of the things that we discovered in our investigations was and
Id like you to elaborate on it a little bit was that frequently there was Federal Agencies, Law
Enforcement Agencies that was trying to uncover what was going on we found that they were stymied
at every turn. Can you talk about a that a little bit?.
[Alan Friedman, New York Correspondent for the Financial Times of London] Yes I think
that if we look back at other discoveries that we made, you can say that when we found ISC, the
company in Lancaster, Pennsylvania, that was, that had cluster bomb technology, shipped down to
Chile that was part of this covert operation for Iraq, we found that the CIA had detailed knowledge
over a period of 4 years of all sorts of shipments from ISC to South Africa, some of which were later
trans shipped to Iraq, we found that Federal Law Enforcement Officers and Agencies were unable to do
anything about it because they just werent told. Likewise, we were just told of the case that the man
that built the Rapta Chemical Weapons plant in Libya, who ah, even though the CIA were tracking him
very carefully here in the United States, was allowed to build a chemical weapons plant here in Florida,
and shipped dangerous cyanide with the help of CIA Contract Shippers to Iraq. All of these things
were going on and the investigators seem unable to do anything about any of these things. We seem
to have part of the Government trying to investigate, and part of the Government trying to ship.
[Ted Koppel] Congressman Gejdenson Id like to get your reaction to that and see if your
experiences have been similar in some of the findings that ah or some of the conclusions that you
have reached, but well take a break first and be back in just a moment.
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[House Representative Sam Gejdenson of the House Foreign Affairs Committee] Well we
saw it ah from across all of the agencies. We had Dennis Kloskey who was then in charge of export
licensing at Commerce testify before our committee in April that he suggested to Mr. Gates and others
that ah meetings at White House to stop the export of dangerous technologies to Iraq. The following
day ah Mr. Kloskey resigned from the Government. We were told by Mr. Kloskey that the White
House, the people in that room representing the President argued for a policy that assisted Saddam
Hussein in getting dual use technologies. We had Congressman Rose who I know has been on your
show testifying about the grain sales being tied up with funding weapons to Iraq as well. So across
the government, this thing went on. Its hard to believe that somebody like Mr. Gates in his position
didnt know about it.
[Ted Koppel] We are suggesting a lot more that he knew about it. Were suggesting that he was
actively involved in it let me just pass on a little information that we have gathered today, having to
do with the Confirmation Hearings and was told earlier this afternoon. Alan Fryers, Senior Officer with
the CIA and Clair George are not likely to be testifying voluntarily, indeed Alan Fryers said he will not
be testifying before the Senate Intelligence Committee. The White House, as we have all heard
throughout the day is putting on some pressure to get those Hearings underway before the August
recess, August 2nd, of course, the Senate goes into recess. Ah, and there are indications now that a
week from Monday, indeed the Hearings will begin, Mr. Gates will be asked to testify at that time, but
Ive been also told that there is no way that the Hearing will no way be completed before the August
recess. And that Mr. Gates will be told that he will be recalled again after other witnesses have
testified, after the August recess. So these Hearing now, are destined to go into September.
[House Representative Sam Gejdenson of the House Foreign Affairs Committee] I think that
is terribly important, because we have to what we have to remember here, unlike other appointees of
the President, what the head of the CIA does is not transparent. If youre the Secretary of Housing,
like Jack Kemp is, and I disagree with one of his programs, not only do I know about it, but the
average citizen knows about what Jack Kemps doing. Sometimes you agree with it and sometimes
you disagree with him. In the case of the Director of the CIA, as is clear from repeated experiences,
often times even the people in Congress were suppose to know about these activities are not
informed. This has to do with National Security the standard ought not be somebody that can get by
the Hearing process with White House pressure. The White House ought to be with us on this one, we
ought to make sure that we have someone fully discloses what is going on to the appropriate
committees and to Congress. Not someone involved in Iran Contra and not someone who hasnt told
the entire truth. And not someone who is in question about these activities. This has to be a definitive
decision by the Congress, that this individual will come clean with the Congress and fulfill not just the
letter of the law, but the spirit of the law.
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[Ted Koppel] Alright, let me just interrupt here for a moment, because were down to our last
minute and a half or so, Alan, it is inevitable in this kind of investigation that you run into a lot of
sleazy characters and I just want to get from you for our audience some sense of how much of the
information that we have compiled here comes from the sleazy characters and how much comes from
the few that we can really rely upon?
[Alan Friedman, New York Correspondent for the Financial Times of London] I think, ah Ted
the important thing to remember here is that we have had all kinds of allegations for the last three
months when our team has interviewed dozens of people, weve been acidulously cross checking and
weve waited to go ahead with this story until weve had very credible witnesses. Those who were
documented CIA operatives and those who were physically with Mr. Gates during those meetings, and
we asked some of them why would Mr. Gates take the risk and go out and meet with Mr. Cardoen and
get directly involved and get his hands dirty in these operations, especially as he was deputy director
of the CIA at the time himself. We were told that he went out because he wanted to give his
improvtoire in order to make sure the job got done. Weve talked to a number of top people and cross
checked.
[Ted Koppel] Alright, Alan Friedman thank you very much, Congressman Gejdenson, thank you
very much, Ill be back in a moment.
END
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Whistle-Blowing Activities Starting in June of 1987, local, state, and federal authorities were
called by Stanley J. Caterbone, including the Federal Bureau of Investigation, the Federal Securities
and Exchange Commission, Congressman Robert Walker, the Pennsylvania Attorney General, the
Lancaster District Attorney, Manheim Township Police, and a host of others.
The following is a memo of a meeting with ISC executive Mr. Lawrence Resch and Mr. Stanley J.
Caterbone at his office at Financial Management Group, Ltd., which took place on June 23, 1987. Mr.
Lawrence Resch, of San Clamente, California, was a long time associate of Mr. James Guerin who
worked as a marketing consultant, and was an ISC executive prior to the company going public in
1982. He served as Director of Marketing and head of Lancaster operations for then defunct United
Chem Con, an affiliate of ISC. He was sued by Ferranti International in 1990 for $189 million dollars
and indicted and found guilty by prosecutors for his role with ISC and served a jail term.
Upon the arrival of Mr. Larry Resch, Stan Caterbone met him in the lobby of Financial Management
Group, Ltd, at which time Larry Resch said "Carl Jacobson could not attend, we had to suddenly fly him
out of the country early this morning (flew to Chile) The meeting was started with the subject of the
financial difficulties of United Chem Con and possible alternatives. Larry Resch specifically addressed
the possibility of moving the operations of United Chem Con to another facility, with specific regards to
the Renovo Plant. Larry Resch specifically addressed the financing capabilities of Stan Caterbone,
along with possible management opportunities. Larry Resch also gave financial statements and
documents to Stan Caterbone for the latest fiscal year for United Chem Con. Stan Caterbone went on
to allege that United Chem Con had embezzled some $15,000,000 from the United States
Government for contracts that contained improprieties. Stan Caterbone also alleged improprieties of
International Signal & Control and James Guerin, with specific regards to its role in the United Chem
Con, and its business activities as related to government contracts. Stan Caterbone noted that he, as a
legal shareholder of International Signal & Control was concerned about improper business activities.
Larry Resch was taken by surprise by all of the above. Stan Caterbone became quite upset by the
evasiveness and the lack of specifics with regards to Larry Resch's conversation. In efforts to thwart
any further communication from James Guerin, United Chem Con, or International Signal & Control,
Stan Caterbone demanded a retainer fee of $10,000 before anyone contacted him again.
The following is a transcript of a meeting with Agent Howard Eisler, of the Pennsylvania Securities
Commission on September 29, 1987. The meeting was solicited at the bequest of Agent Howard Eisler
supposedly for an investigation into securities violations at Financial Management Group, Ltd.,
However, that also turned out to be untrue, or Agent Eisler also ignored all of the violations that
occurred at the company headquarters. The meeting lasted approximately 4 hours at the residence of
Stanley J. Caterbone. Also present were attorney Mr. Robert Byers, and client of Stanley J. Caterbone,
Mr. Millard Johnson. Agent Howard Eisler, in November of 1987, requested that Stanley J. Caterbone
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put any complaints or grievances in writing and never did anything with information or testimony from
the meeting.
[Stanley J. Caterbone, ISC Shareholder; Founder Executive Vice President of Financial

Management Group, Ltd., and President of FMG Advisory, Ltd.,] - Chem Con is the big local
minority-held corporation that was doing a lot of Defense contracts-it was associated with ISC. They
went under last spring, beginning of the summer, and there was a lot of criminal allegations made,
none of them substantiated. And I was connected with that. They sent a board member in to see me a
week before this happened. Why. I don't know. Jim Christian owned it - now I hear rumors that I was
tied to ISC and I am close to several people in that organization. Why they sent someone in to
California to see me, I don't know. They wouldnt answer me. They wanted me to talk to a guy from
D.C., New York, a guy from the Caribbean. I don't know what the hell is going on.
[Mr. Robert Byer, Criminal Attorney for Stanley J. Caterbone] the supposition was - I don't
know how true it was a front for ISC.

Management Group, Ltd., and President of FMG Advisory, Ltd.,] - It was, I'll tell you why.
Because when Chem Con was started, back to their inception, you look at ISC's books. They didn't
have any money. Well, the fist thing Chem Con did was they went and got all that free money from
the government and you look where that money went. I bet I know where it went. This guy named
Guerin, James Guerin. And I know that they were selling contracts back. He runs ISC and he also has
his fingers pretty deeply into Chem Con. He's the one who started Chem Con, Guerin is the one who
started it.
[Mr. Millard (Bill) Johnson, Client of Mr. Stanley J. Caterbone] - Wasn't there some allegations
about a tie to Wedtech? (Defense Contractor of New York)

Management Group, Ltd., and President of FMG Advisory, Ltd.,] - You bet. They were tied, you'd
better believe they were tied with Wedtech. The same guys in Wedtech were invoked with ISC and
Chem Con. ISC is sold over the London Exchange. (I bought my shares from Pennsylvania State
Senator Gibson Armstrong) I owned a thousand shares. I sold it when things started to hit the fan-
they just did a multimillion dollar merger with a company in London. They probably think this is going
to cover their tracks. What they did was, they fronted all that money and started the contracts, went
bankrupt, and now the government is stuck for $18,000,000. I know right now in this town's
viewpoint, I stole money, I am insane, and I am a lunatic I tell you I will not condemn Jim Christian
until he tells to my face what happened. "I was framed and set up. I dont know maybe Jim Christian
doesn't have the money. Maybe Guerin has it or somebody else has it.
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__________________________________________________________________
ARGUMENT
__________________________________________________________________
Keith, 407 U.S. at 313-14. There, the Court explained that
[n]ational security cases . . . often reflect a convergence of First and Fourth Amendment values . . . .
Fourth Amendment protections become the more necessary when the targets of official surveillance
may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute
where the Government attempts to act under so vague a concept as the power to protect domestic
security.
Id. The Court thus concluded that Fourth Amendment freedoms cannot properly be guaranteed if
domestic security surveillances may be conducted solely within the discretion of the Executive Branch.
The Fourth Amendment does not contemplate the executive officers of Government as neutral and
disinterested magistrates. . . . The historical judgment, which the Fourth Amendment accepts, is that
unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence
and overlook potential invasions of privacy and protected speech. . . . [T]his Court has never sustained
a search upon the sole ground that officers reasonably expected to find evidence . . . and voluntarily
confined their activities to the least intrusive means . . . . The Fourth Amendment contemplates a prior
judicial judgment, not the risk that executive discretion may be reasonably exercised.
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CERTIFICATE OF SERVICE
I hereby certify that on February 21, 2007, I have mailed by U.S. Postal Service, by electronic means, or by
facsimile the foregoing paper to the following (funds permitted) :
ANN BEESON Lucy A. Dalglish, Esq.
Attorney of Record Counsel of Record
JAMEEL JAFFER Gregg P. Leslie, Esq.
MELISSA GOODMAN (admission pending) Elizabeth J. Soja, Esq.
CATHERINE CRUMP (admission pending) 1101 Wilson Blvd., Suite 1100
National Legal Department Arlington, VA 22209-2211
American Civil Liberties Union Foundation (703) 807-2100
125 Broad Street, 18th Floor Attorneys for Amicus Curiae The Reporters
New York, NY 10004-2400 Committee for Freedom of the Press
(212) 549-2500
Kathleen M. Sullivan
MICHAEL J. STEINBERG Derek L. Shaffer
KARY L. MOSS Constitutional Law Center
American Civil Liberties Union Fund of Michigan Stanford Law School
60 West Hancock Street 559 Nathan Abbott Way
Detroit, MI 48201-1343 Stanford, California 94305-8610
(313) 578-6814
ANN BEESON
Kate Martin Attorney of Record
CENTER FOR NATIONAL SECURITY STUDIES JAMEEL JAFFER
60 1 Thirteenth Street, N. W. MELISSA GOODMAN (admission pending)
1120 19th Street, N.W., SCOTT MICHELMAN (admission pending)
Washington, DC 20036 CATHERINE CRUMP (admission pending)
(202) 72 1-5650 National Legal Department
American Civil Liberties Union Foundation
Joseph Onek Erin N. Linder 125 Broad Street, 18th Floor
Sharon Bradford Franklin New York, NY 10004-2400
THE CONSTITUTION PROJECT (212) 549-2500
1025 Vermont Avenue, annb@aclu.org
Washington, DC 20005
(202) 580-6920 David W. DeBruin
Theresa A. Chmara
Donald B. Verrilli, Jr. Julie M. Carpenter
JENNER & BLOCK LLP Michael B. DeSanctis
S. 800 Suite 1200 South Wade B. Gentz
Washington, DC 20005 JENNER & BLOCK LLP
(202) 639-6095 601 Thirteenth St., N.W., 12th Floor
Washington, D.C. 20005
JENNER & BLOCK LLP tel. (202) 639-6000
330 N. Wabash Avenue fax (202) 639-6066
N. W. Chicago, IL 60611
(312) 222-9350 Margaret A. Costello
DYKEMA GOSSETT PLLC
400 Renaissance Center
Randy Gainer
Detroit, MI 48243
Davis Wright Tremaine LLP
tel. (313) 568-5306
1501 Fourth Avenue, Suite 2600
fax (313) 568-6893
Seattle, WA 98101 - 1688
Douglas N. Letter
Thomas N. Bondy
Anthony A. Yang
Attorneys, Appellate Staff
Civil Division, Room 7513
U.S. Department of Justice
950 Pennsylvania Avenue, NW
____________/s/________________
Date: February 20, 2007 Stanley J. Caterbone, Pro Se Litigant
1250 Fremont Street
Lancaster, PA 17603
717-427-1821 facsimile
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BAUSMAN MPO
Sales Receipt
Product Sale Unit Final
THANK YOU FOR SHOPPN
IG Descri p t i on Qty Price Price
WEIS MARKETS #41 LANCASTER,p~ LANCASTER PA 17604
PA
CLUB CUSTOMER First-Cless
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H8 VIENNA 60 Rice 1.2, F
1.49 F It$ I,~>?~.?C;E E%S 1.00 T Issue PVI :
HB VIENNA 80
COUPON 11009 1.49 F
LaTIOh 06 B ~ L 2.27 PHILADELPHIA PA 19101
MC MANUFACTURERCPN 1.OD-F .*r. TAX 2.27 First-Cl ass
r*rr TAX 1.00-F Cash .00 1.30 oz.
Cash .OO BAL .98
CwGE 1.00 2/18 . Issue PVI:
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cowon savines. . .. . . .. .. .. . .oZ
2.00
YOU- Total Savings are 6 7 . 1 1 ~ 2.00 DETROIT M I 48201
2/20/07 4:14 PM 0041201 0129 225 Fi rst-Cl ass
4.90 oz.
Issue PVI :
x
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Paid by:
* Cash
Change Due:
Bi l I # : 1000200788239
Clerk: 03
A l l sales f i n a l on stamps and postage.
Refunds for guaranteed services on1 y.
Thank you f o r your business. 1


mailto:amgroup01@msn.com
717.427-1621 Fax
Stanley J. Caterbone
1250 Fremont Street
Lancaster, PA 17603
March 19, 2007
United States District Court

Eastern District Of Michigan Southern Division
The Clerk of The Court
Detroit, MI
Re: Brief On Behalf Of Amici Curiae Stanley J. Caterbone And Advanced Media Group
In Support Of Plaintiffs Motion For Partial Summary Judgment
Dear Clerk of the Court:
Please see the attached for filing. On February 22, 2007, I did not have your address so I
forwarded the filing to the ACLU Office in Detroit with a note to please forward it to you for filing. I
have no way of confirming, so I am submitting another copy for you to file.
I thank you for your service in advance. If you require any additional information, please
contact me by email at the above address.
Respectfully,
Stan J. Caterbone
Pro Se Lititgant

Lancaster New Era:
A Dems' inaction on
LANDMARK FISAOF
CASE harmful http://eedition.lancasteronline.com/pages/news/edition/NEPM/2008...
OBSTRUCTION OF JUSTICE, CIVIL RIGHTS, AND INTELLECTUAL PROPERTY
Lancaster New Era
Dems' inaction on FISA harmful

It's things like this that make us wonder how serious some
Democrats are about confronting the terrorist threat on America.
The Democratic-led House let a crucial government-eavesdropping

law expire over the weekend before Congress began a 12-day
recess.
The eavesdropping won't end; it just makes the task that much
harder for our intelligence officials.
The House failed to adopt the bipartisan Senate version of the

Foreign Intelligence Surveillance Act, which would have renewed an
update of the law approved in August that makes it easier for the
government to spy on foreign phone calls and e-mails that pass
through the United States.
FISA, first adopted by Congress during the Cold War, would let the
government initiate wiretaps for up to one year. It also would
compel telecommunications to comply with wiretap orders while
shielding them from civil lawsuits that may be filed against them as
a result.
The provisions in the law have one purpose and one purpose only:
to protect the American people from further terrorist attacks.
"American citizens must understand, clearly understand that there's

still a threat on the homeland...," says President Bush. "We've got to
give our professionals the tools they need to be able to figure out
what the enemy is up to so we can stop it."
Some Democrats apparently don't see it that way. They downplay

FISA's expiration and accuse the president of fear-mongering and
misrepresenting the facts.
"This is not about protecting Americans. The president just wants to

protect American telephone companies," argues Rep. Rahm Emanuel
(D-Illinois), referring to the liability-protection provision that
insulates telecoms from lawsuits.
While the eavesdropping can continue, the compliance requirement

and liability protection for telecoms no longer apply. That means
telecoms' cooperation must be voluntary. And without the liability
protection, they're less likely to be so.
As a result, the government has to go back to the old way of getting

orders approved by the Foreign Intelligence Surveillance Court -- a
cumbersome process that ties intelligence agents up in red tape and
causes needless delay.
To get a court order, the government has to prove "probable cause"

before being allowed to tap a line inside the U.S. -- even if the
communication originates and ends in a foreign country. This is
difficult to do, and it takes time.
Indeed, by the time the government complies with the law, the
phone numbers or e-mails that it wanted to track could be obsolete.
"More than likely we would miss the very information we need to

prevent some horrendous act from taking place in the United States,"
says Mike McConnell, director of national intelligence.

1 of 2 2/19/2008 4:21 PM
Lancaster New Era:
A Dems' inaction on
LANDMARK FISAOF
CASE harmful http://eedition.lancasteronline.com/pages/news/edition/NEPM/2008...
OBSTRUCTION OF JUSTICE, CIVIL RIGHTS, AND INTELLECTUAL PROPERTY
The law does makes provisions for emergencies, but the paperwork
still must be completed within a few days.
Democrats who let the FISA law expire insist America is no less safe
from another terrorist attack. But can they be so sure?
The only thing certain is that Americans are not now getting the full
benefit of FISA protection. This is unacceptable.
We should be protecting the American people, not the terrorists.
The eavesdropping won't end; it just makes the task that much
harder for our intelligence officials.
2004-2007 Lancaster Newspapers

PO Box 1328, Lancaster PA 17608, (717) 291-8811
Terms of Service Privacy Policy

2 of 2 2/19/2008 4:21 PM
DOCUMENT DIVIDER

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DOCUMENT DIVIDER

Stan J. Caterbone
Freedom From Covert Harassment &

Surveillance,
1250 Fremont Street
Lancaster, PA 17603
scaterbone@live.com
717-669-2163
Stanley J. Caterbone, Pro Se Litigant

1250 Fremont Street
Lancaster, PA 17603

FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________________________________________
:
Stanley J. Caterbone :
Advanced Media Group : CIVIL DIVISION
Petitioner : Case No. 15-03984
Related Case: Pennsylvania
Superior 1915 MDA 2015
:
v. :
Lancaster County Crisis Intervention :
Craig Stedman, Lancaster County District Attorney
Detective Clark Bearinger, Lancaster City Police
Lancaster City Police Department
Dr. Silvia Gratz, Chief Medical Officer and
Fairmount Behavioral Health System :
Defendants :
EXHIBIT re CORROBORATING EXPERT AND FORMER NSA WHISTLEBLOWER KAREN

STEWART'S DISCLOSURE OF ELECTROGAGNETIC WEAPONS USED TO KILL CERTAIN
TARGETED INDIVIDUALS DURING APRIL 10, 2016 RADIO INTERVIEW
This exhibit, is intended to help the Court understand the complexity of the PETITIONER's
obligation to provide the Court with the evidence and insight to support the PETITIONER's claims
and statements and to try to thwart the current attempts upon his life. The PETITTIONER has
explained in all courts the events as described by Karen Stewart well before May 9, 2016 when
the PETITIONER first came upon this information. Karen Stewart is a CREDIBLE CORROBORATOR
of the PETITIONERS CLAIMS over the past 10 years in litigation in both federal and state courts.
Karen Stewart graduated from Florida State University in 1979 with a BS degree in German

Language and a minor or co-major equivalent in Fine Art. She worked for NSA (National Security
Agency) from 1982 to 2010. Her resume will follow.
Her video interviews can be seen on the following YOUTUBE links:

Wheel of Freedom (WUA) 4/4/16 Ex-NSA Karen Stewart
https://www.youtube.com/watch?v=ExpCL27ft10
NSA whistle blower Karen Stewart exposes targeted Individuals, 9/11

https://www.youtube.com/watch?v=ravXai6nfMg
On March 9, 2016 I was detained and falsely imprisoned by no less than 8 NSA Security
Police on the barracks of the Headquarters of the NSA at Ft. Meade Maryland. I was handcuffed,
and interrogated for over an hour, while my car was dog sniffed and searched. I was ordered to
return to Lancaster rather than continue on to Washington, D.C., and was ordered not to enter
any federally owned property again. The following is a video of my statement:
Statement and Video of False Imprisonment re Handcuffed and Interrogation for an hour at NSA
Headquarters (National Security Agency at Ft. Meade, Maryland) by 8 NSA Police officers on March
9, 2015 Recorded on March 11, 2016
https://www.youtube.com/watch?v=FeXlaQn5Nhs
BACKGROUND
Stan J. Caterbone's International Signal & Control or ISC Whistleblowing History and Mind
Control Relationships are outlined in the following statements and declarations, which have
already been proven and verified and have never been specifically contested in any court of law:
Stan J. Caterbone was a Federal Whistleblower in 1987 regarding ISC
The 29 False Arrests and Prosecutorial Misconduct that Stan J. Caterbone was subject to in 1987
through 2015 was an effort to cover-up the allegations made by Stan J. Caterbone in the Spring
and Summer of 1987 after the Meeting of June 23, 1987 with ISC and United Chem Con Executive
Larry Resch.
The ISC Fraud and Sales of Arms to Iraq Story by the ABC News Nightline with Ted Koppel and
the Financial Times of London in May, July, and September of 1991 was most likely initiated or
was corroborated by Lancaster Newspapers reporter Thomas Flannary.
Thomas Flannary's mysterious death in February of 2004 was either murder or was a cover story

to hide the fact that he was a CIA operative used to control the flow of information,
disinformation, and propaganda. It is highly subject that he began his career with Lancaster
Newspapers in 1987 and is not a native Lancastrian.
The ISC merger was not completed until December of 1987, 3 months after the False Arrests of
Stan J. Caterbone.
The official meeting with the Pennsylvania Securities Commission Agent Howard Eisler in
September of 1987, which was solicited by Agent Eisler was an effort to illegally interrogate Stan
J. Caterbone without a legal subpoena.
In the months after the June 23, 1987 meeting with ISC Executive Larry Resch Stan J.
Caterbone had personally solicited a vast array of local, state, and federal officials, including the
FBI and Congressman Robert Walker, PA State Representative Gibson Armstrong for assistance in
the retaliation and slander campaign that was in progress. There is credible linkage between the
ISC Scandal, U.S. Sponsored Mind Control, Stan J. Caterbone's family VICTIMIZATION of the
same, and the participation of LANCASTER COUNTY, PENNSYLVANIA.
The Zook Murder Appeal proves that Lancaster County Detective Michael Landis, Judge James
Cullen, and Judge Farina of the Lancaster County Court of Common Pleas were all involved in U.S.
Sponsored Mind Control before 2004 and before Stan J. Caterbone went public with his
VICTIMIZATION of U.S. Sponsored Mind Control.
Bobby Ray Inman, former director of the National Security Agency (NSA) was on the Board of
Directors of ISC and was involved in U.S. Sponsored Mind Control Technologies through his
company S.A.I.C. Corporation. Bobby Ray Inman would later be selected by Former President Bill
Clinton for his Director of Defense, but would later remove himself due to allegations and public
scrutiny for his role in the ISC scandal.
In the Fall of 1991 Robert Gates was nominated for Director of the Central Intelligence Agency
(CIA) and during his televised confirmation hearings the was subject to brutal array of questions
concerning his participation in the ISC scandal. He went on to be nominated and later would serve
both the Bush Administrations and the Obama Administrations as Secretary of Defense until
resigning in 2011.
There have been at least 3 documented attempts on the life of Stan J. Caterbone; 1987, 1991,
and 2004, all attempts at vehicular homicide. Thomas P. Caterbone's passing in 1996 was the

result of a wrongful death claim by Fulton Bank. Samuel A. Caterbone was most likely an KULTRA
murder tactic in Santa Barbara, California on December 25, 1984. Samuel P. Caterbone was most
likely the result of an MKULTRA murder tactic on July 20,2001 in New York city.
The above finding of facts and evidence corroborates a vast conspiracy and criminal enterprise
that violates both civil and criminal RICO statutes and antitrust statutes.
The above would constitute treble damages for Stan J. Caterbone and Advanced Media Group in
U.S. District Courts, specifically in the Eastern District for Pennsylvania Case No. 05-2288, 06-
4650, 14-02559, and other related cases; and Case No. 08-13373 in the Lancaster County Court
of Common Pleas.
THE DISCLOSURE
Karen Stewart's resume at the NSA is as follows: I Worked various projects over the
years, not just USSR/Russia, but various countries researching/reporting on foreign military status
and alliances, weapons development and proliferation, the Chernobyl disaster and aftermath, the
fall of the Iron Curtain and changing relations among newly liberated countries, economic and
diplomatic developments of certain target countries. I researched and wrote a series of
intelligence reports in support of Operation Iraqi Freedom that kept secret Russian
countermeasures sold to Iraq from wreaking havoc on the American invasion. This ultimately is
what got me fired because I questioned why my work was used to promote another employee
who had no experience with but, was credited with my work .
The following transcript of an interview by Karen Stewart in which she describes the lethal
electromagnetic weapons and her experience on being on the receiving end was taken from the
article titled NSA Whistleblower Comes Out of the Shadows Into the Light and can be
found at: http://canadafreepress.com/article/nsa-whistleblower-comes-out-of-the-
shadows-into-the-light
The article was written by Sher Zieve -- Bio and Archives and published March 28, 2016. The
byline is as follows: In February, 2014 I published an interview of an NSA Whistleblower. This is a
follow-up to that column. Due to recent threats to her person and other exigent circumstances,
the Whistleblower has decided to come out of the shadows and into the light. I am honored that
she again chose me to write her story.
KAREN STEWART'S TRANSCRIPT

First of all, the case STEWART V. NSA is a righteous lawsuit, (brought in 2010) meaning
it is a clear case of employer abuse of power and position to an egregious and even premeditated
criminal level meant to circumvent whistleblower protection laws like the No Fear Act. Simply put,
I asked the NSA Inspector General (IG) to investigate why my award-winning intelligence report
series supporting Operation Iraqi Freedom (2003) was used to promote an entirely different
woman twice (2004 & 2005) one who had nothing to do with my reports whatsoever, and was a
known incompetent, but had methodically sexually compromised many of the male managers
within the Weapons & Space (W&S) Directorate. Instead of following correct procedure, the IG
and NSA Security decided to cover up the infraction by attacking me. Threats were made to paint
my complaint as paranoid and to fire me for a non-existent mental illness if I did not drop my
effort to get credit for and the promotion for my own work, given to the wrong woman. These
threats quickly took shape as false accusations against me by the guilty personnel obviously
coached by Security, manifested with stalking harassment masquerading as an investigation by
NSA Security goons from 2006-2009. In late 2010, despite all evidence showing my innocence
from ridiculous and impossible charges, I was fired by an NSA Kangaroo court with a
predetermined agenda. My EEOC appeal (lawsuit) had been accepted for adjudication and the
judge had ordered no adverse action until its adjudication but NSA ignored his orders.
I moved from Columbia, Maryland back to my familys hometown of Tallahassee, Florida in

2011. All was quiet until February 2015 when I instructed the law firm I had hired to subpoena
evidence from the Maryland Department of Motor Vehicles identifying a burglar (a now retired NSA
Executive) who had broken into my home very shortly after I had tried to make my 2006
Inspector General request for an investigation, and stolen extra house, car, and mail keys as well
as illegally bugging (burst bug) our home and phone/internet to facilitate further harassment and
likely search for blackmail material (no luck for them there).
After the subpoena, I began noticing Security types in Tallahassee following me and photo-
stalking me by March/April. Their license plates suggested Naval Security Group from Pensacola
and NSA Security personnel from Georgia (Augusta) and Texas (San Antonio). A quick check with
the Leon County Sheriffs Department, specifically Duty Officer deputy Canon, confirmed that NSA
also had personnel land at a private airport and deputies had escorted them the the Phipps
property north of Lake Jackson (near where I now live) for a secret exercise, just before the
second round of stalking harassment began. The sequence of events seems to have been for NSA
Security to contact the Naval Security Group in Pensacola, Florida (Headquartered at Ft. Meade,
Maryland along with NSA) to initially stalk and photograph me under ridiculous false pretenses
until NSA could send its own Security personnel to Tallahassee. Once there, under guise of

authority, it appears that NSA enlisted the help of the Florida Department of Law Enforcement
(FDLE) and its civilian group, InfraGard, made up of civilians recruited from their Ride-Along
programs. As usual, NSA personnel fabricated some big lie as to why the civilians should actively
and passively stalk and harass me, and despite quite obvious questions about why laws and due
process were to be completely suspended in my case, the group eagerly jumped at the
opportunity for hundreds to gang up on one person (for Federal money, I may add).
Thus, under NSA tutelage and FDLE auspices, suddenly I was a cast-iron target, meaning
multiple people covered me wherever I was, whatever I did. Cars were even stationed near my
home overnight on rotating shifts, beeping to each other when changing shifts but also for my
benefit. NSA also sought out willing neighbors to augment their snooping and harassment efforts,
which could be anything from hosting an NSA Security goon for accessibility to my property, both
home (to bug and monitor short-distance transmissions) and car (to install and switch out vehicle
GPS trackers to facilitate car stalking and impeding as harassment. ) Those were the active
participants, others not assigned to me on a certain shift were ordered to quickly text in to a
special site the big bad threat to report my location and time I was there. People even snooped
in my shopping carts to be able to tattle to someone about what I was doing, what I was buying.
(God help us, she bought bananas!!! Save the children!).
This was annoying enough but I tried to ignore it because I thought NSA once again was
going for the usual See, shes paranoid, reporting harassment every day now just dismiss her
lawsuit! But I did report acts of harassment that caused physical damage such as hit
and run, purposely sideswiping my car, (This is exatly what happened to the
PETTITIONER on May 9, 2016 enroute to MEDEXPRESS for pain medications) and
botching the placement/removal of a GPS tracker under my rear spoiler that destroy my
spoiler. (They feared my mechanic would find their tracker so they botched its removal
the night before my appointment). I even made fun of my stalkers when I could, using
my hobby art shop on a popular internet site to create bumper magnets making fun of
them. After all, they were mostly nave, unsophisticated boobs who desperately
imagined that they were little James Bonds and that the greatest existential threat to
their country was a woman waiting for her lawsuit to be decided, living in Tallahassee,
walking her dogs, visiting friends.
In late November 2015, however, NSA apparently decided that I was not
sufficiently being intimidated by their civilian confederacy of dunces to back off my
lawsuit to recover my stolen salary and stolen retirement at the appropriate pay level.
In 2009 I had researched gang-stalking and discovered it was a real and growing

phenomenon, but when electrical harassment was mentioned, I could not really grasp
the concept and wondered about its existence. But I was to find out first hand in
November 2015 that it does exist and is a horrific crime against humanity.
NSA and its operatives started using small, mobile devices called Directed Energy
Weapons (DEWs) against me and my family in the night. These mobile weapons emit
multiple types of electrical emanations from ultrasonic, to microwaves modulated to
radio frequencies, to other kinds of wave variations I cant say I understand yet. Now,
with the help of certain mercenary and morally depraved neighbors, the effort is almost
24/7 now with the intention being torture and slow-kill. These types of weapons over a
lengthy time, cause cancer, autoimmune disease, heart attacks, seizures, strokes, etc.
It is the perfect stealth murder weapon for a corrupt government.
At this point, when we leave the house, a criminal base of stalkers has been
enlisted by NSA to follow us and aim the DEWs at us wherever feasible to increase
exposure in order to speed up death, with the help of the InfraGard dimwits still texting
in my location like good little sheeple.
The Leon County Sheriffs Department as well as the Tallahassee Police

Department are dragging their feet, making excuses, denying any such thing exists, or
insulting me when I try to enlist their help to come up with a strategy to combat this
new crime before I or one of my family is dead. They cant quite grasp the fact that
this is domestic terrorism and nothing protects the police or any official from this new
weapon held and wielded by criminals. Yet, plenty of recruits in their ranks have
experience using the mobile DEWs in Iraq. It is very interesting to me that the Naval
Security Group headquartered at Ft. Meade with NSA, is also called the Silent
Warriors because they specialize in the use of Directed Energy Weapons. Im sure the
Naval Security Group base in Pensacola has many on hand and may have even gotten a
request from NSA to borrow a few for their secret exercise in Tallahassee.
Clearly, NSA is of the opinion that you do not have Constitutional Rights unless
they say you do. If they use this to get rid of an inconvenient lawsuit such as mine
instead of simply settling for a tenth of the cost of harassment, then they must feel
confident they can murder anyone, anywhere, for any reason and get away with it
including any leader or politician.
These documents will also provide the Court with sufficient knowledge of the PETITIONER's

claim of the value of the PETITIONER's litigation of up to $50 million dollars as stated in the U.S.
Bankruptcy Case No. 05-23059. The APPELLANT does not intend to overburden the Court with
unnecessary filings, however this burden of supporting the claims and statements falls on the
shoulders of all those in the government that ignored the PETITIONER's pleas for help to resolve
these issues dating back to the days immediately following the meeting with International Signal
& Control, Plc., (ISC) Executive Larry Resch on June 23, 1987.
/S/ Stanley J. Caterbone,

Date: May 10, 2016 Stanley J. Caterbone, Pro Se
1250 Fremont Street
Lancaster, PA 17603
scaterbone@live.com
(717) 669-2163

There is no doubt that NSA is now run by sycophants and sociopaths
EXCLUSIVE: Former NSA Employee Speaks Out on its

Corruption Karen Stewart
By Sher Zieve -- Bio and Archives February 20, 2014

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At the very least, for the past few months to a year it has become increasingly evident that
although not allmany agencies of the US Federal government have become increasingly dirty,
perverse and corrupt and require a deep and thorough cleaning.
The US Secret Service has previously been exposed as including claims of involvement with
prostitutes, leaking sensitive information, publishing pornography, sexual assault, illegal wiretaps,
improper use of weapons and drunken behavior and the IRS was caught and admitted to denying
Obamas political enemies (aka TEA Party, Christians, religious Jews, conservatives) their
Constitutional rights while allowing progressive groups (aka Liberals, Leftists, Marxists, Maoists,
Socialists, Communists) theirs. Andlove him, hate him or fall somewhere in-betweenEdward
Snowden shone a very bright light on the unconstitutional domestic mega-spying of one of these
clandestine agenciesthe National Security Agency. Thus far, under Obamas increasingly iron
rule, few-to-no members of these agencies have even been indicted by Congress for their blatant
crimes against the American people.
The NSA appears to have begun as a patriotic organization that was geared toward protecting the
USA and its citizens. Whether or not that was its original intended purpose is a subject for
discussion and speculation. However, portions of the NSA seem to have devolved into something
very sinister. Todays interview will concentrate on this agency.
NSA Analyst. Due to a number of substantive reasons, this former Analysts identity cannot be
divulged at this time and will be referred to as W. I have, however, confirmed this individuals
prior employment and credentials via a well-known NSA Whistleblower. The information
disseminated to me, amongst other things tells a sordid story of corruption and how employees
are silenced into submissionvia fearwithin the agency,
The Interview
Sher:Thanks so much for being with me, today, in order to provide essential additional
information to the public on how many of their tax dollars are really being spent. You were
employed by the NSA for over two decades. Would you tell the readers what initially attracted you
to the agency as well as how it has deteriorated over time?
Karen Stewart: Like many people from families with a strong history of serving our country,
coming out of college, I looked to find a way to best utilize my particular interests and talents in
service to my fellow Americans. The mission of the NSA it seemed to me, was to stop threats
coming to our shores. Its charter clearly targeted foreign nationals on foreign soil who did or
could intend us harm. That appealed to me as a righteous endeavor and honorable tack for my life
to take.

Sher: Youve shared with me how the NSA deals with its employees who bring legitimate
complaints to their superiors. How thoroughly intimidating and threatening are their behaviors
toward those who balk at their adverse treatment? Would you give a few examples?
Karen Stewart: Apparently the nature of NSA Security degenerated under General Michael
Hayden, the previous Director of NSA (DIRNSA), who promoted a very questionable mid-level
Security manager to a power position within Security. Hayden had originally been tasked to
eviscerate NSA since a very shallow and short-sighted Congress believed that the fall of the Iron
Curtain meant no danger existed anywhere anymore that required the existence of a robust NSA
presence. There evolved, under him, a gratuitously vicious bully mindset that employees were to
be intimidated at any opportunity not only to drive them out of NSA but to cut back on people
reporting problems that made NSA look bad, especially problems involving upper management.
Under Hayden and his successor, General Keith Alexander, the filing of complaints to or requests
for investigations by the NSA EEO or the OIG (Office of the Inspector General) were often
inexplicably blown off despite adequate evidence or the presence of willing witnesses. Then the
person who had filed the complaint would be subjected to an out of cycle reinvestigation
interview with Security as well as polygraph exam, wherein the tone of the Security person was
not neutralas it should bebut, hostile with far-fetched or even ridiculous non-issues presented
as potentially problematic. This was a Security shot across the bow to warn the person that he
had crossed the line by filing the complaint. If he pursued the complaint, Security would lean on
his managers to heavily discourage him from doing what he thought was proper and was indeed a
protected action under the law. If he persisted, did his own amateur investigation, or told
coworkers about the situation, he might be called down to Security multiple times and accused of
being paranoid and delusional based on his complaint, and his job threatened.
The worse the infraction reported, especially if a high level manager looked to be involved, the
more severe the reaction by Security. In cases of egregious wrong-doing by a manager, Security
would review the personnel files, medical files, and financial statements to find anything they
could use to threaten or blackmail him with, or pretend to misinterpret some tidbit of information
as something it was not.
Some people were forced to sign admissions of guilt of preposterous misinterpretations of facts in
order to keep their jobs, thereby killing their credibility and complaint. When nothing was found in
such files that could be used, a false accusation of espionage or leaking classified materials ginned
up by Security, was used to justify a Security intrusion into the persons home to search for
blackmail material, further assess the interests and personality of the targeted individual (TI), and
plant bugs and abscond with an extra set of keys for further intrusions. The more the person
objected to being bullied, the more heavy-handed Security became, insisting that hostility toward
them indicated wrong-doing on the TIs part. Thus the TI would become harried and
harassed for a crime he never committed, if it ever even was committed, and to
repeated accusations by Security Psych services of a non-existent mental illness, more
than adequately supported by years of internal, psychological evaluations stating he
was mentally sound (Paranoia with delusions is rare and certainly never occurs
overnight, but that does not deter a Security psychologist attack dog, whose favorite
mode of attack employs reference to this malady).
The more a person stood his ground, the more personal it became to Security, which
then became dedicated to the personal destruction of the TI. Under the pretext of the
fake accusation of espionage or leaking classified information, Security would slander
the individual with his coworkers, work friends and managers to isolate him and apply
yet more pressure. Many backed away from supporting the TI in fear for their careers
and maybe even freedom. Certainly this sent a message to the workforce in the TIs
area that NSA Security was at its essence, a rogue, unaccountable and psychotic entity
that was to be greatly feared.
Once NSA Security had decided upon the removal of the TI for failing to be sufficiently
cowed, then false evidence was given to the FBI liaisons assigned to NSA. This would

engender a fraudulent FISA warrant, which loosed FBI surveillance and investigators
upon the person for a few weeks or months, further slandering him to his work and
social circles and thereby putting pressure on him by their constant presence. When the
FBI would find no basis for the accusation, they would drop the case and move on.
However, at that point, Security would send in their own personnel sans warrant, to
overtly stalk and harass the TI , 24/7.
In some instances, Security has even gone into the persons

neighborhood to recruit snitches and augment harassment
with hostile civilians convinced the TI is an enemy of the state,
based on baseless Security slander.
Intrusions would be made into his home to remove gathered evidence or
move things around as a psychological ploy and his car would be secretly
GPSd to facilitate vehicular stalking and aggressive driving games.
There have even been reports of pet murders by poisoning as an
escalation of the harassment with the inferred threat that perhaps it
could be the TIs child or himself next. The harassment is essentially
elevated until the TI either breaks and assaults a harasser or
complains to Security about the insane and sadistic, not to mention
criminal way in which he is being mistreated. This is what Security
planned for and is ready to jump on as their springboard to terminating
his employment.
His security clearance is immediately pulled, he is warehoused in a menial job until adequate
paperwork and a back-story can be fabricated or forged to falsely present a termination due to
mental instability or illness, and the person is fired. Of course there is an appeals process, but it is
thoroughly corrupted. No matter how much evidence supports the victim and how little supports
NSA, NSA always wins these cases where it is clear the person was targeted for dismissal. Of
course, this does nothing but embolden more degenerate or criminal behavior while making it
clear that the person reporting evil will be considered the problem, and that in reality no labor
laws or whistle protection laws can actually protect an NSA employee, because real watch dog
entities dont exist within NSA and state and Federal authorities routinely turn a blind eye to the
reported abuses even as they become more criminal and seditious.
I shake my head at sycophant, disingenuous politicians who claim Edward Snowden could have or
should have gone through proper internal authorities to report the abuses and criminal acts
being committed within NSA. Would that be to the thoroughly corrupted, attack dog-watch dog
entities, or the thoroughly oblivious or compromised politicians responsible for oversight who are
in fact, in the NSAs pocket due to bribery, blackmail or stupidity?
Sher: The NSA seems to suffer from the some of the same maladies as did the recent outing of
the Secret Service. Without becoming too specific, would you give us a general idea as to
advancement for sexual favors that have occurred within the agency? How defeating is that to
employees who are simply working to protect the country while their bosses are indulging in
sexual liaisons with lower level employees?
Karen Stewart: In my career, promotions were always hard to come by, meted out perhaps
every five years if you were a good or exceptional worker, but male managers discovered that
they held the keys to paradise in regard to attractive or even acceptable women willing to take
shortcuts. These were the women who would make promotions in stunningly rapid succession with
little to no accomplishments - of their own, that is. While others killed themselves with years of
grueling shift work or even multiple dangerous foreign assignments only to find themselves
evaluated as a 3.6 on a scale of 5, when an attractive, morally loose recent college graduate

would receive a 4.8 for essentially alphabetizing a shelf of reference books her first 6 months on
the job. This made many, many people bitter and certainly sent the wrong signal to the hardest
workers and the most talented. Though many stopped being as dedicated to their jobs, others did
indeed press ahead and worked tirelessly knowing their reward was the mission accomplished and
not likely appropriate recognition. Capable men despaired of receiving deserved promotions and
women almost feared being promoted for exceptional work, fearing they would be assumed to be
one of the typically incapable promotion bimbos among the bloated management. Expertise and
knowledge became commodities to guard and not share with new workers, fearing you would not
reap the benefits of your own work. This of course created a situation where expertise and insight
must be gained and regained from scratch, losing precious time training up area or target experts
to the detriment of the mission.
It was very discouraging to see immature or degenerate bosses spending their time flirting and
chasing skirts, the very same people who were charged with competently reviewing your work,
(keeping apprised of the big picture so people felt free to specialize their research), and whose
responsibility it was to accurately and honestly represent their people before promotion boards.
But the atmosphere of secrecy, the strict laws about divulging names of NSA employees or
anything that occurred there, emboldened certain men to believe that their wives and families
would never know of their indiscretions, and turned work time into play time for them. And now
apparently young males are also being pursued as sexual toys. One has to wonder what is being
missed in the realm of highly perishable intelligence leads by distracted managerial incompetents.
Sher: As an additional example of NSA intimidation, one of the things youd said may be shared is
your experience with the 3 Amigos. Would you tell us about them?
Karen Stewart:There were three eccentric looking older males who were often seen in the NSA
OPS1 cafeteria together, whom we also got to know by word of mouth, as master electricians well-
versed in computer science. They were nicknamed by some in the analyst field as Rasputin,
Santa, and Choo Choo or the engineer, due to their highly unusual appearances and dress.
One eye witness being harassed on yet another NSA Security retaliatory witch hunt, reported
seeing one of these men at her home, on her property, when she discovered indications that her
home had been broken into, her cable box broken into, and her phone hacked, leaving tell-tale
clicking sounds at regular intervals whenever she used her phone. Any phone tap done by warrant
is done at the carriers hub under their auspices and will not click, only illegal hack jobs click.
She noted him not only as a trespasser being somewhere he should not have been, but
recognized him by his highly unusual appearance from work. When she attempted to look him up
in the NSA data base by career specialty, she found that what should have been his photo, which
should have been a source of pride since he was of the rank to be a Flag Badger (Manager whose
rank is senior enough to garner a photo with the American flag in the background), was instead a
photo of a desert animal called a Meercat indicating that he wanted his identity hidden from the
general NSA population.
Sher: With regards to many who have said that the NSAs collection of meta-data on all forms of
communication between legal citizens of the USA is unconstitutional, also indicated is the fact that
not one terrorist act has been stopped by said collection. It appears good old-fashioned police
work is what still gets the perp. In your opinion, is this accurate?
Karen Stewart: I think it is indeed true that the meta data collection ruse within the USA
distracts from tried and true research and investigation, which the latter method apparently DID
INDEED uncover the 9/11 plot months before it happened, well in time to have prevented it,
according to two separate analysts with whom I have spoken, one just two days after 9/11 as he
broke down and sobbed his heart out, repeating We could have saved them! We could have
saved them! But they wouldnt let us report it!, and the other several years later, who maintained
the same story of being threatened and forbidden to report any warning about 9/11, then being
harassed and fired for a non-existent mentally illness. However, it is a good means to track your
political enemies and detractors and their affiliates within the US - for future reference? It would
appear much more for the self-preservation and expansion of NSA as the ubiquitous Orwellian Big
Brother than for the protection of the USA. With the power the NSA wields, it could easily

influence border control issues and immigration issues to make us not as susceptible to terrorist
intrusions and infiltrations, but that would undermine their power grab and expansion within the
US, something never intended at NSAs creation - and for good reason.
Sher:As a former long time employee of the NSA, what do you believeif anythingcan be done
to correct the problems within the agency?
Karen Stewart:There is no doubt that NSA is now run by those sycophants and sociopaths who
are the least desirable to have in any position of such sensitivity and trust and are purging NSA
ranks of people with integrity. Compromising activity that would rightfully cost you your clearance,
is now viewed as intrinsic perks of the job once you reach a certain pay grade. These lesser
leaders have turned NSA into an American Gestapo Wanna-Be agency. NSA lost its way with non-
serious super grade playboys not mature enough for the responsibility of the job of managing and
directing NSA, compounding the problem by promoting sycophants to protect their backs as well
as lightweights with whom to have sexcapades behind office doors, but in that group also has
risen opportunistic sociopaths and psychopaths attracted to more and more power, any way they
can get it, and by conniving and ruthlessness have blown past incompetent, distracted
management to change the very nature of the NSA from watchman to the American people to
jack booted prison guard.
If the Legislative Branch is possessed of anyone with the least bit of courage and common sense,
they would demand super clearances for those on the Intelligence Oversight Committees so that
years or decades of abusive behaviors, kingdom building, or even crimes can not continually be
swept under the rug by telling these particular politicians, You dont have the need to know, just
trust us. Obviously, they cannot be trusted. An appointment to that Committee would of course
have to become much more exclusive, requiring a thorough vetting as any job with a Top Secret
clearance should. But to deal with the toxic management at NSA now, I would require every Flag
Badger and Security manager to account for himself and what he adds to the mission. If he is
pork, retire him or require him to laterally transfer to another agency. Before that however, I
would require that every single Flag Badger and every Security group manager take a polygraph
by non-NSA affiliated or non-NSA sympathetic sources to account for the millions of dollars
wasted on their vicious and illegal war on NSA employees who dutifully report fraud, waste, abuse
as well as sexual predation and treason. Those who are found to be guilty of such things as
falsifying accusations against innocent employees; fabricating false witnesses and evidence;
engaging in illegal acts of breaking and entering; falsifying FISA warrant justifications; lying to the
FBI about a targeted victims criminality; falsifying psychological assessments; subverting lie
detector exams by screaming at the targeted subject during or just before the exam to create
false impressions of guilt; hiding or destroying exonerating evidence supporting their victims
claims; intimidating or roughing up witnesses; coordinating or participating in criminal stalking
and harassment activities, illegal break-ins, illegal wire taps, organizing and paying civilian groups
under the table to augment harassment of targeted employees, and lastly, conspiring to effect or
cover up any or all of these actions. And any NSA employee in that group who pleads the 5th,
should be fired and stripped of his retirement since this type of betrayal rots a country from
within. NSA must be recreated, and returned to the stated task in their founding charter of
focusing on foreign enemies overseas.
Sher: W, so much of the information youve provided is truly astounding! Thanks so much for
being with us today and I hope youll be available for another should ongoing events require one.
Click to view 3 Comments
Sher Zieve is an author and political commentator. Zieves op-ed columns are widely carried by
multiple internet journals and sites, and she also writes hard news. Her columns have also
appeared in The Oregon Herald, Dallas Times, Sacramento Sun, in international news publications,
and on multiple university websites. Sher is also a guest on multiple national radio

NSA Whistleblower Comes Out of the Shadows Into the Light Karen Stewarty
By Sher Zieve -- Bio and Archives March 28, 2016

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In February, 2014 I published an interview of an NSA Whistleblower. This is a follow-up to that
column. Due to recent threats to her person and other exigent circumstances, the Whistleblower
has decided to come out of the shadows and into the light. I am honored that she again chose me
to write her story.
Her name is Karen Stewart Karen Stewart
BIO
Education
Freshman year - Schiller College, Strasbourg, Fr.
Sophomore - Senior years, graduated from Florida State University (79)
BS in German Language and a minor or co-major equivalent in fine art
Work History: 1982-2010 NSA (National Security Agency
Underwent initial retraining from 1982 - 83, on the job training to become a linguist in a needed
foreign language (chosen to train in depth in Russian since my college major, German was not in
demand but I had also studied Russian and French with good results).
Worked various projects over the years, not just USSR/Russia, but various countries
researching/reporting on foreign military status and alliances, weapons development and
proliferation, the Chernobyl disaster and aftermath, the fall of the Iron Curtain and changing
relations among newly liberated countries, economic and diplomatic developments of certain
target countries. I researched and wrote a series of intelligence reports in support of Operation
Iraqi Freedom that kept secret Russian countermeasures sold to Iraq from wreaking havoc on the
American invasion. This ultimately is what got me fired because I questioned why my work was
used to promote another employee who had no experience with but, was credited with my work.
Note...Due to the Top Secret nature of the work, the above summary is slightly vague, by design.
The Interview
Sher: Karen, thanks for taking the time to speak with me and its so good to have you back and
this time under your name! As a Whistleblower, what finally made you decide to come out from
the shadows?
Karen: I always intended to link my name with my story because it is a story that needs to be
told, but since I have a lawsuit against NSA (technically an appeal of an unlawful, employer
action, i.e. my termination at the 28 point year of my career for trying to request an investigation
by the NSA Inspector General), sitting under a gag order demanded by NSA, on the docket at the
Equal Employment Opportunity Commission (EEOC) in Baltimore, I could not do so without risking
the adjudication going against me for that reason alone. However, in 2015 NSA Security made the
decision to yet again engage in a massive slander campaign against me in my new location, thus

breaking its own gag order so I feel no compunction to be held to a standard required by the
EEOC judge at NSAs request that NSA itself clearly holds in utter contempt.
Sher: Since we last talked, a lot has happened with you. You have refused to drop your
discrimination lawsuit against the NSA and have shared with me that the agency has stepped up
its efforts against youpersonally.
Youre now being stalked by what appear to be NSA operatives. Is that correct? As you reported to
me they, also, seem to be using electronic emanation technology to both stop and damage you. I
believe former NSA employee and Whistleblower Russel Tice reported on this, also. This is really
deep dark side information. Would you tell the readers what theyre doing to you, [possibly]
others and why?
Karen: First of all, the case STEWART V. NSA is a righteous lawsuit, (brought in 2010) meaning
it is a clear case of employer abuse of power and position to an egregious and even premeditated
criminal level meant to circumvent whistleblower protection laws like the No Fear Act. Simply put,
I asked the NSA Inspector General (IG) to investigate why my award-winning intelligence report
series supporting Operation Iraqi Freedom (2003) was used to promote an entirely different
woman twice (2004 & 2005) one who had nothing to do with my reports whatsoever, and was a
known incompetent, but had methodically sexually compromised many of the male managers
within the Weapons & Space (W&S) Directorate. Instead of following correct procedure, the IG
and NSA Security decided to cover up the infraction by attacking me. Threats were made to paint
my complaint as paranoid and to fire me for a non-existent mental illness if I did not drop my
effort to get credit for and the promotion for my own work, given to the wrong woman. These
threats quickly took shape as false accusations against me by the guilty personnel obviously
coached by Security, manifested with stalking harassment masquerading as an investigation by
NSA Security goons from 2006-2009. In late 2010, despite all evidence showing my innocence
from ridiculous and impossible charges, I was fired by an NSA Kangaroo court with a
predetermined agenda. My EEOC appeal (lawsuit) had been accepted for adjudication and the
judge had ordered no adverse action until its adjudication but NSA ignored his orders.
I moved from Columbia, Maryland back to my familys hometown of Tallahassee, Florida in 2011.
All was quiet until February 2015 when I instructed the law firm I had hired to subpoena evidence
from the Maryland Department of Motor Vehicles identifying a burglar (a now retired NSA
Executive) who had broken into my home very shortly after I had tried to make my 2006
Inspector General request for an investigation, and stolen extra house, car, and mail keys as well
as illegally bugging (burst bug) our home and phone/internet to facilitate further harassment and
likely search for blackmail material (no luck for them there).
After the subpoena, I began noticing Security types in Tallahassee following me and photo-stalking
me by March/April. Their license plates suggested Naval Security Group from Pensacola and NSA
Security personnel from Georgia (Augusta) and Texas (San Antonio). A quick check with the Leon
County Sheriffs Department, specifically Duty Officer deputy Canon, confirmed that NSA also had
personnel land at a private airport and deputies had escorted them the the Phipps property north
of Lake Jackson (near where I now live) for a secret exercise, just before the second round of
stalking harassment began. The sequence of events seems to have been for NSA Security to
contact the Naval Security Group in Pensacola, Florida (Headquartered at Ft. Meade, Maryland
along with NSA) to initially stalk and photograph me under ridiculous false pretenses until NSA
could send its own Security personnel to Tallahassee. Once there, under guise of authority, it
appears that NSA enlisted the help of the Florida Department of Law Enforcement (FDLE) and its
civilian group, InfraGard, made up of civilians recruited from their Ride-Along programs. As
usual, NSA personnel fabricated some big lie as to why the civilians should actively and passively
stalk and harass me, and despite quite obvious questions about why laws and due process were to
be completely suspended in my case, the group eagerly jumped at the opportunity for hundreds
to gang up on one person (for Federal money, I may add).
Thus, under NSA tutelage and FDLE auspices, suddenly I was a cast-iron target, meaning
multiple people covered me wherever I was, whatever I did. Cars were even stationed near my

home overnight on rotating shifts, beeping to each other when changing shifts but also for my
benefit. NSA also sought out willing neighbors to augment their snooping and harassment efforts,
which could be anything from hosting an NSA Security goon for accessibility to my property, both
home (to bug and monitor short-distance transmissions) and car (to install and switch out vehicle
GPS trackers to facilitate car stalking and impeding as harassment. ) Those were the active
participants, others not assigned to me on a certain shift were ordered to quickly text in to a
special site the big bad threat to report my location and time I was there. People even snooped
in my shopping carts to be able to tattle to someone about what I was doing, what I was buying.
(God help us, she bought bananas!!! Save the children!).
This was annoying enough but I tried to ignore it because I thought NSA once again was going for
the usual See, shes paranoid, reporting harassment every day now just dismiss her lawsuit!
But I did report acts of harassment that caused physical damage such as hit and run, purposely
sideswiping my car, and botching the placement/removal of a GPS tracker under my rear spoiler
that destroy my spoiler. (They feared my mechanic would find their tracker so they botched its
removal the night before my appointment). I even made fun of my stalkers when I could, using
my hobby art shop on a popular internet site to create bumper magnets making fun of them. After
all, they were mostly nave, unsophisticated boobs who desperately imagined that they were
little James Bonds and that the greatest existential threat to their country was a woman waiting
for her lawsuit to be decided, living in Tallahassee, walking her dogs, visiting friends.
In late November 2015, however, NSA apparently decided that I was not
sufficiently being intimidated by their civilian confederacy of dunces to back off
my lawsuit to recover my stolen salary and stolen retirement at the appropriate
pay level. In 2009 I had researched gang-stalking and discovered it was a
real and growing phenomenon, but when electrical harassment was
mentioned, I could not really grasp the concept and wondered about its
existence. But I was to find out first hand in November 2015 that it does exist
and is a horrific crime against humanity.
NSA and its operatives started using small, mobile devices called
Directed Energy Weapons (DEWs) against me and my family in the night.
These mobile weapons emit multiple types of electrical emanations from
ultrasonic, to microwaves modulated to radio frequencies, to other kinds
of wave variations I cant say I understand yet. Now, with the help of
certain mercenary and morally depraved neighbors, the effort is almost
24/7 now with the intention being torture and slow-kill. These types of
weapons over a lengthy time, cause cancer, autoimmune disease, heart
attacks, seizures, strokes, etc. It is the perfect stealth murder weapon
for a corrupt government. At this point, when we leave the house, a
criminal base of stalkers has been enlisted by NSA to follow us and aim
the DEWs at us wherever feasible to increase exposure in order to speed
up death, with the help of the InfraGard dimwits still texting in my
location like good little sheeple.
The Leon County Sheriffs Department as well as the Tallahassee Police Department are dragging
their feet, making excuses, denying any such thing exists, or insulting me when I try to enlist
their help to come up with a strategy to combat this new crime before I or one of my family is
dead. They cant quite grasp the fact that this is domestic terrorism and nothing protects the
police or any official from this new weapon held and wielded by criminals. Yet, plenty of recruits in
their ranks have experience using the mobile DEWs in Iraq. It is very interesting to me that the
Naval Security Group headquartered at Ft. Meade with NSA, is also called the Silent Warriors
because they specialize in the use of Directed Energy Weapons. Im sure the Naval Security Group
base in Pensacola has many on hand and may have even gotten a request from NSA to borrow a

few for their secret exercise in Tallahassee.

Clearly, NSA is of the opinion that you do not have Constitutional Rights unless they say you do. If
they use this to get rid of an inconvenient lawsuit such as mine instead of simply settling for a
tenth of the cost of harassment, then they must feel confident they can murder anyone,
anywhere, for any reason and get away with itincluding any leader or politician.
Sher: Why in the world do you think the NSA simply didnt settle the suit? With all of the
documentation you have, it seems that they are guilty of the discrimination and could have spent
far less of the taxpayers money to simply pay you off and make it go away. They would, also,
have avoided this coming out into the open. Are they that arrogant and Narcissistic?
Karen: This has truly NEVER made any sense to me or any of my friends, even those who worked
at NSA. NSA could have investigated, claimed a mistake had been made and retroactively
promoted me without even addressing the unethical behavior of W&S personnel. Instead, the IG
refused to investigate, illegally of course, but I could not have made him do his job. Plus, the
guilty were instructed to blame me for what turned out to be the first leak by ex-NSA executive
Thomas Drake, despite the fact that I had no access to, knowledge of or training in the type of
material he leaked (computer technology) and he was identified as the source of that leak six
months before I was fired. The polygraph section of Security actively tried to sabotage my
polygraph exams in response to the false counter-accusation by inappropriately screaming and
threatening me, making it impossible to pass a polygraph, which ruined my first polygraph in this
regard though I passed the next two of the three given in reaction to the false accusation.
The EEOC is capped at $300,000 actual damages, no punitive allowed. My intention was to get the
lost difference in my wages as a GS-12 when I should have been a GS-14, and to get the
appropriate level of retirement. Yet, clearly, NSA has spent millions organizing and paying civilians
(and greasing the palms of crooked law enforcement) to harass, bully, intimidate,and quite
obviously viciously slander me.
Do they engage in such psychopathic behavior because they can? Because they simply have no
real oversight? The operational head of NSA Security is indeed rumored far and wide to be an
actual psychopath who is obsessed with paintings of Dantes Inferno.
A coworker who worked in NSA Human Resources says she remembered when the resumes of
inappropriate people (criminals, perverts, mentally unstable) were automatically thrown away but
suddenly when General Hayden, a former NSA Director, promoted this particular man, the
resumes of thieves, moral degenerates, etc., were then coveted by Security. She said that she
was so upset that she had to find a different job. I did read an opinion on the Anti-polygraph site
that NSA Security leadership, and hence all of Security in essence, could be said to suffer from
Dark Triad personality disorder, which is a dangerous combination of such things as (malignant)
narcissism, sociopathy, etc. Their egos are such that they are obsessed with winning at all costs
even fighting to keep a known false accusation from being proven false by their victim, because
they exist in their own projected narrative. They exist in their own lies and cannot stand being
exposed. This means they follow their own agendas. What is good for NSA Security leadership,
even at the cost of NSA or the USA. Their allegiances are to themselves. This has made me
wonder, of late, if the woman who Security protected instead of reprimanding or firing for sexually
compromising W&S management was not a Security plant, meant to do just that. And, in so
doing, was NSA Security procuring a means to blackmail these managers for themselves or
another entity, perhaps foreign?
Sher: You have multiple photos and even drawings youve made of you stalkers. Youve also
indicated to me that the NSA has been in touch with your local law enforcement. Said law
enforcement is siding with the NSA against youa private citizen. What do your attorneys have to
say about these?
Karen: At the beginning of my search for a law firm to take my case, Melville Johnson PC
informed me that I had potentially two cases, in 2009, an employment law case and a criminal
case. I could only afford to pursue the employment case since I was facing illegal termination on

false pretenses within a few months. While my lawyers have recorded the information about the
new assault campaign by NSA in Florida, thus far their pleas with the EEOC for some kind of
response because their client is now in physical danger have been completely ignored.
What has been going on in Florida is entirely criminal and could be a separate lawsuit, to even
include law enforcement in regard to their depraved negligenceif not complicity. But, at the
moment, I am concerned with surviving the relentless Directed Energy Weapons assaults. If I do
not, then my family will have to consider a wrongful death lawsuit against NSA, FBI (that refuse to
get involved because NSA is involved), and the FDLE, the TPD and Leon County Sheriffs
Department as well as certain complicit neighbors accepting a new riding mower or new carpeting
in exchange for helping NSA murder an inconvenient person who actually thought she had any
Constitutional, human, or Civil Rights.
Sher: With regards to your lawsuit, what are your current plans?
Karen: Good question. Reporting and recording the new barrage of assaults has whittled deeply
into my retainer. This was hard enough to maintain after spending about $110,000, thus far, and
often countering ridiculous and frivolous legal shenanigans by NSA to waste my money. With an
outrageously unresponsive EEOC, which may indeed be a complete and obscene sham for show,
one wonders why continue with the pretense that we exist as a nation of laws? Clearly, we do
not.
The government has no desire for a level playing field to impede its quest for complete tyranny.
We are now a nation of wolves and sheeple. Im sure that after getting wind of this article, NSA
will come to the EEOC with big crocodile tears claiming they need to win by default because I
broke the gag order after they themselves spent millions, bald-faced lying to thousands of
civilians, law enforcement and (apparently) the FBI about me, invoking National Security Letters
to swear them to secrecy and to hide the true nature of their faux secret exercise in Tallahassee
i.e., enticing a foolish community to stalk, harass and commit murder for Big Brother.
But, God forbid the victim would speak out!
It truly sickens me that I spent my career trying to protect and serve my fellow Americans when
not only my government but these unworthy mercenary, sociopaths have stabbed me in the back.
Some of the stalkers have even been Iraqi War veteranssome of whom might not have returned
alive without my reports.
I cant think a lot about the lawsuit with each nocturnal assault leaving me wondering if I or one
of my family will not wake up tomorrow. Im sentenced to death for being a patriot. What a
country. I read Psalm 91 & 94 nightly, praying God will want to erase this growing evil from our
country. But, I also remember that Ruth Graham said a while ago, if God doesnt judge America,
Hell have to apologize to Sodom and Gomorrah.
Americans are just not the people they and we used to be and, therefore, our leaders are either
apathetic cowards who tolerate evil or potentially monsters like NSA Securitywho show that they
can be and are not responsible to anyone but themselves.
Is NSA Security even able to be reined in anymore? Or would any potential leader be found dead
of a microwave induced heart attack if he tried to? Someone ought to care but I may not be
around long enough to see it.
Sher: Thanks you so much for all youve done and I sincerely hope and pray youre wrong, Karen.
Its individuals like you who founded the United States of America on Godly principles and an
unwavering sense of ethics.
*Karen may be contacted for interviews at kams56@ME.com

DOCUMENT DIVIDER

Subject: Mind Control; ISC; Whistleblowing on CIA and the NSA
From: scaterbone@live.com
To: dementnc@earthlink.net
Subject: RE: Come join me on The Law and Current or Pending LitigationonMindControlVictims
Friends Around the World
Date: Thu, 19 Nov 2009 01:30:54 -0500
Nancy,
I appreciate your response and openness. My prayers are with you and your family. I have been
raised catholic, and still attend mass on a regular basis, something I never did stop.
I will tell you why I asked. I cannot communicate with anyone without the threat or reality of the
person not being who they say they are. I have also been covered up since 1987 due to my
Whistle Blowing activities; that was before I knew anything about Mind Control. Up until 2006 or
2007 I thought all of my problems were only due to retaliation for my ISC disclosures in 1987.
Another problem is that ISC reached into the politics of the NSA; CIA, Bush 41 and his
administration; Bill Clinton and Bobby Ray Inman, former director of the NSA, and appointed
Secretary of Defense for Clinton; and Robert Gates; current Secretary of Defense, and former
Director of the CIA.
ISC was selling cluster bombs to South Africa and through to IRAQ up and including 1991. ISC
and Cardoen sold all of the cluster bombs throughout most of the world back then. The scandal
was very public. ABC News Nightline and Ted Koppel did 3 broadcasts and broke the CIA/NSA
connection in 1991, the very same year there was an attempt on my life. ISC was a partner with
the NSA/CIA in covert arms deals. It was a billion dollar fruad perpetrated to defraud Ferranti of
Great Britain; one of the largest white collar frauds back then. I was a shareholder since 1983
and they met with me in May/June of 1987 while I was in my first full year as founder of my
financial firm, Financial Management Group, Ltd.,. They essentially wanted me to help finance
some operations, and I got suspicious and started to make public allegations. The problem was
that at the time Ferranti was in the midst of their due diligence to merge with ISC. The executive
that I met with was one of three persons sued by Ferranti for the $billion dollar fraud. I recorded
many conversations back then, which are part of my evidence.
I knew they were reading my mind, but I thought it was all ISC related. I have had personal
contacts with the NSA over the years. Once in 1998 in York, Pennsylvania. The gentleman met
me in a parking lot. He was a white male, I would say in his sixties, dressed in a suit and a tan
overcoat. He knew I was trying to file suits that very same year. I asked him if they were the
one's causing me all of my problems, and he responded "no, it's just the Good Ole Boys". He
walked up to me as I was leaving a job forum. That same year I remember someone emailing me
regarding the term "remote viewing". I looked it up on the web, and that was the end of that,
until 2005, when I became telepathic.
In 2006 I was communicating with a gentleman that said he was about to retire from the NSA,
and was staying with the NSA until our conversations were complete. We communicated for about
2 months. To this day I do not have enough evidence to not believe he was telling me the truth.
This all brings me to Derrick and FFCHS. FFCHS was founded in 2005, the same year I became
telepathic, the same year I filed my first federal law suit in U.S. District Court for the Eastern
District of Pennsylvania, Case No. 05-2288. Derrick told me he was a linguistics expert with the
NSA. The work I did with DARPA and NIST was for Speech Recognition technologies; that was in
1990 to 1991, while founding Advanced Media Group.

Then, Derrick takes 5 weeks to draft a letter for the Outreach Committee. I get suspicious, when
things don't add up. It just seems like I am not communicating with the people I think I am, or
there are anterior motives.
Call me paranoid.
Stan J. Caterbone
Notice and Disclaimer: Stan J. Caterbone and the Advanced Media Group have been slandered, defamed, and publicly
discredited since 1987 due to going public (Whistle Blower) with allegations of misconduct and fraud within International
Signal & Control, Plc. of Lancaster, Pa. (ISC pleaded guilty to selling arms to Iraq via South Africa and a $1 Billion Fraud in
1992). Unfortunately we are forced to defend our reputation and the truth without the aid of law enforcement and the
media, which would normally prosecute and expose public corruption. We utilize our communications to thwart further
libelous and malicious attacks on our person, our property, and our business. We continue our fight for justice through the
Courts, and some communications are a means of protecting our rights to continue our pursuit of justice. Advanced Media
Group is also a member of the media. Reply if you wish to be removed from our Contact List. How long can Lancaster
County and Lancaster City hide me and Continue to Cover-Up my Whistle Blowing of the ISC Scandel?
Summation: Due to the actions and criminal activity of the foregoing (see Criminal Indictment Page), it is reasonable
to prove that every aspect of the Complainant's life, Stan J. Caterbone, is subject to undo influence; harassment; torture;
obstruction; etc. This situation and set of circumstances as outlined here, and in the page "State of Affairs" and all
previous filings; reports; and statements, is a prescription for only one endgame - death or suicide. There is no life action
or activity that is immune from this horrendous HATE CRIME. The precedent and landmark elements that make this so
appalling is that the Complainant has never done anything to set these circumstances in motion but to be right regarding
International Signal & Control back in 1987; as well as many other proclamations and forecasts. That being said, it is also
widely reported that many Targeted Individuals and Victims of U.S. Sponsored Mind Control are lead to death and/or
suicide. The Lancaster Community-At-Large is guilty of creating; abetting; fostering; and executing this tragedy. The fact
that local; state; and federal law enforcement induce and encourage this environment of hate is landmark.

From: dementnc@earthlink.net
To: scaterbone@live.com
Subject: RE: Come join me on The Law and Current or Pending Litigation on Mind
Control Victims Friends Around the World
Date: Thu, 19 Nov 2009 00:54:14 -0500
I do not have any reason not to believe you. I am a whistle blower to and mistreated everyday.
Being 67 and having so much physical harm to my body and having my synapses messed up, I
can not think. I try to find symptoms like mine and I have well over 40 symptoms of directed
energy weapons targeting including vomiting, dizziness, nausea, pain in my teeth or any part of
my body, involuntary muscle movement, atrial fibrillation, involuntary urinating, involuntary bowel
movements and everything in between from diarrhea to constipation at their will, 24/7 V2K,
memory tampering, control of the emotions and many more. I read the symptoms of high
frequency and it was if they did all the list. They can make me bleed from the nose, vagina and
kidneys. They attacked my whole family and my mother died. My daddy died last year at age 99
and he was targeted all his life. We children were abused by the perps. So many of the people
working with FFCHS are like me and I find comfort in talking and working with them. We all have
similar stories. My child is perped and my grandchild. You can not imagine the horror of that.
Thank you for asking about me. By the way we pray for our enemies and other things to but I
could not think when I wrote to you before. God bless your efforts and anyone that is working to
prove what the government has done. Sincerely, Nancy Miller

----- Original Message -----

From: Stan J. Caterbone
To: Nancy Miller
Sent: 11/18/2009 4:36:01 PM
Subject: RE: Come join me on The Law and Current or Pending
LitigationonMindControlVictims Friends Around the World
Why doesn't anyone like you talk to me. I have found no one with a family history of
similar to mine. Is it because my mental telepathy and Whistle blowing incidents scare
you, or is it you just don't believe me?
Stan J. Caterbone
Notice and Disclaimer: Stan J. Caterbone and the Advanced Media Group have been slandered, defamed,
and publicly discredited since 1987 due to going public (Whistle Blower) with allegations of misconduct and
fraud within International Signal & Control, Plc. of Lancaster, Pa. (ISC pleaded guilty to selling arms to Iraq
via South Africa and a $1 Billion Fraud in 1992). Unfortunately we are forced to defend our reputation and
the truth without the aid of law enforcement and the media, which would normally prosecute and expose
public corruption. We utilize our communications to thwart further libelous and malicious attacks on our
person, our property, and our business. We continue our fight for justice through the Courts, and some
communications are a means of protecting our rights to continue our pursuit of justice. Advanced Media
Group is also a member of the media. Reply if you wish to be removed from our Contact List. How long can
Lancaster County and Lancaster City hide me and Continue to Cover-Up my Whistle Blowing of the ISC
Scandel?
Summation: Due to the actions and criminal activity of the foregoing (see Criminal Indictment Page), it
is reasonable to prove that every aspect of the Complainant's life, Stan J. Caterbone, is subject to undo
influence; harassment; torture; obstruction; etc. This situation and set of circumstances as outlined here,
and in the page "State of Affairs" and all previous filings; reports; and statements, is a prescription for only
one endgame - death or suicide. There is no life action or activity that is immune from this horrendous HATE
CRIME. The precedent and landmark elements that make this so appalling is that the Complainant has never
done anything to set these circumstances in motion but to be right regarding International Signal & Control
back in 1987; as well as many other proclamations and forecasts. That being said, it is also widely reported
that many Targeted Individuals and Victims of U.S. Sponsored Mind Control are lead to death and/or suicide.
The Lancaster Community-At-Large is guilty of creating; abetting; fostering; and executing this tragedy. The
fact that local; state; and federal law enforcement induce and encourage this environment of hate is
landmark.

Subject: RE: Come join me on The Law and Current or Pending LitigationonMind
ControlVictims Friends Around the World
Date: Wed, 18 Nov 2009 16:26:29 -0500
We started contacting our legislators by going to Washington, D.C. and taking credible
reports to each and every Senator and House of Representative. We had meetings and
guest speakers to speak about credible information, including a world wide tele-conference
with Dr. Nick Begich. Two of our medical committee people are on the radio with
Representative Jim Guest about our fight with the mind controllers. We are helping victim
who have lost their homes due to targeting and have no place to stay and with very little
funds to work with. We are try to get grants to help our cause. We have intervened when
some targets wound up in mental health and most were released. We work with the people
who are demonstrating against the mess. The list of things we do is long and we have
fought long and hard to obtain a law firm to represent us and we are working on how to
present medical information and testing to more than prove our case. We also have a
prayer group that prays for our efforts and the help for all of us including you Mr. Caterbone
if you are a mind control victim or a victim of illegal surveillance and harassment.
Before we started another group started with Cheryl Welch, Eleanor White and many more
who actually got a man who worked for the DOD to work with them and they have him on
tape. He died of cancer. Many people are devastated and have spent years working to
bring this mess to a close and I am proud to say that I am part of that. It is written that
weapons formed against man shall not prosper. It is written that I can do anything with
Christ who strengthens me. Sincerely, Nancy Miller

---- Original Message -----

To: Nancy Miller
Sent: 11/17/2009 9:54:05 PM
Subject: RE: Come join me on The Law and Current or Pending LitigationonMind
Just curious, what does the Board of Directors do at FFCHS?
Stan J. Caterbone
Notice and Disclaimer: Stan J. Caterbone and the Advanced Media Group have been slandered, defamed,
and publicly discredited since 1987 due to going public (Whistle Blower) with allegations of misconduct and
fraud within International Signal & Control, Plc. of Lancaster, Pa. (ISC pleaded guilty to selling arms to Iraq
via South Africa and a $1 Billion Fraud in 1992). Unfortunately we are forced to defend our reputation and
the truth without the aid of law enforcement and the media, which would normally prosecute and expose
public corruption. We utilize our communications to thwart further libelous and malicious attacks on our
person, our property, and our business. We continue our fight for justice through the Courts, and some
communications are a means of protecting our rights to continue our pursuit of justice. Advanced Media
Group is also a member of the media. Reply if you wish to be removed from our Contact List. How long can
Lancaster County and Lancaster City hide me and Continue to Cover-Up my Whistle Blowing of the ISC
Scandel?
Summation: Due to the actions and criminal activity of the foregoing (see Criminal Indictment Page), it
is reasonable to prove that every aspect of the Complainant's life, Stan J. Caterbone, is subject to undo
influence; harassment; torture; obstruction; etc. This situation and set of circumstances as outlined here,
and in the page "State of Affairs" and all previous filings; reports; and statements, is a prescription for only
one endgame - death or suicide. There is no life action or activity that is immune from this horrendous HATE
CRIME. The precedent and landmark elements that make this so appalling is that the Complainant has never
done anything to set these circumstances in motion but to be right regarding International Signal & Control
back in 1987; as well as many other proclamations and forecasts. That being said, it is also widely reported
that many Targeted Individuals and Victims of U.S. Sponsored Mind Control are lead to death and/or suicide.
The Lancaster Community-At-Large is guilty of creating; abetting; fostering; and executing this tragedy. The
fact that local; state; and federal law enforcement induce and encourage this environment of hate is
landmark.

Subject: RE: Come join me on The Law and Current or Pending Litigation onMind
Date: Tue, 17 Nov 2009 21:17:18 -0500
I'll stay in touch and I am on the board of FFCHS. We know what is going on. Keep up your
good work. Thanks, Nancy Miller

To: Nancy Miller
Sent: 11/17/2009 1:47:25 AM
Subject: RE: Come join me on The Law and Current or Pending Litigation onMind
Nancy,
Wish you the best in countering the attacks. Wish I could help. Hang in there.
Stan J. Caterbone
Notice and Disclaimer: Stan J. Caterbone and the Advanced Media Group have been slandered, defamed, and publicly discredited since 1987 due to going public
(Whistle Blower) with allegations of misconduct and fraud within International Signal & Control, Plc. of Lancaster, Pa. (ISC pleaded guilty to selling arms to Iraq via
South Africa and a $1 Billion Fraud in 1992). Unfortunately we are forced to defend our reputation and the truth without the aid of law enforcement and the media,
which would normally prosecute and expose public corruption. We utilize our communications to thwart further libelous and malicious attacks on our person, our
property, and our business. We continue our fight for justice through the Courts, and some communications are a means of protecting our rights to continue our pursuit
of justice. Advanced Media Group is also a member of the media. Reply if you wish to be removed from our Contact List. How long can Lancaster County and
Lancaster City hide me and Continue to Cover-Up my Whistle Blowing of the ISC Scandel?
Summation: Due to the actions and criminal activity of the foregoing (see Criminal Indictment Page), it is
reasonable to prove that every aspect of the Complainant's life, Stan J. Caterbone, is subject to undo influence;
harassment; torture; obstruction; etc. This situation and set of circumstances as outlined here, and in the page
"State of Affairs" and all previous filings; reports; and statements, is a prescription for only one endgame - death or
suicide. There is no life action or activity that is immune from this horrendous HATE CRIME. The precedent and
landmark elements that make this so appalling is that the Complainant has never done anything to set these
circumstances in motion but to be right regarding International Signal & Control back in 1987; as well as many
other proclamations and forecasts. That being said, it is also widely reported that many Targeted Individuals and
Victims of U.S. Sponsored Mind Control are lead to death and/or suicide. The Lancaster Community-At-Large is
guilty of creating; abetting; fostering; and executing this tragedy. The fact that local; state; and federal law
enforcement induce and encourage this environment of hate is landmark.

Subject: RE: Come join me on The Law and Current or Pending Litigation on Mind
Date: Tue, 17 Nov 2009 01:05:08 -0500
Stan, I am too sick right now. They are attacking my sinuses and I have had 3 bouts of
antibiotics for bronchitis. I am to return to the doctor the last of the week for them to check
me again. I am holding my own with helping Freedom From Covert Harassment and
Surveillance. Thanks anyway, Nancy Miller


To: dementnc@earthlink.net
Sent: 11/16/2009 8:13:40 PM
Subject: Come join me on The Law and Current or Pending Litigation on Mind
Mind Control Victims Friends Around the World

Targeted Individuals Mind Control Victims United World Wide
Stan J. Caterbone has invited you to join The Law and Current or Pending
Litigation on Mind Control Victims Friends Around the World
I would like to invite you to participate in a Group Discussion regarding the legal issues that confront
victims and their families of U.S. Sponsored Mind Control and Organized Harassment/Stalking.
I would like to start a group to discuss the legal issues of victims and Targeted
Individuals; their rights in courts; and current, past, or pending l
Stan J. Caterbone
1 member
Created By: Stan J. Caterbone
Check out The Law and Current or Pending Litigation on Mind Control Victims Friends Around
the World:
http://mcvictimsworld.ning.com/group/thelawandcurrentorpendinglitigation?
xgi=0rccDDh2TLwoMy&xg_source=msg_invite_group
About Mind Control Victims Friends Around the World
friendship website for Mind Control victims, Targeted Individuals, around the world
366 members 378 discussions
658 photos 8 Events
269 videos 1046 blog posts
To control which emails you receive on Mind Control Victims Friends Around the World, click here

DOCUMENT DIVIDER

Investigators Say CIA Ignored Arms Sales to South Africa http://www.apnewsarchive.com/1991/Investigators-Say-CIA-Ignored-Ar...
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INVESTIGATORS SAY CIA IGNORED

ARMS SALES TO SOUTH AFRICA
AP, Associated Press
May. 24, 1991 12:57 AM ET
LANCASTER, PA. LANCASTER, Pa. (AP) _ The CIA ignored a steady ow of U.S. missile and other weapons technology to South
Africa from 1984 through 1988, according to media reports.
Evidence suggests that some American technology was transferred from South Africa to Iraq, where it could have been used against
U.S. forces ghting to liberate Kuwait, according to the reports.
The reports were carried in Fridays Lancaster (Pa.) Intelligencer-Journal and the broadcast Thursday on ABC-TVs Nightline. Both
the paper and the program said the investigation was carried out in cooperation with the Financial Times of London.
They were based on accounts of federal investigators and other government ocials who spoke on condition their names and
agencies be kept secret.
The shipments originated at James H. Guerins International Signal & Control Corp., a Lancaster-based defense contractor under
investigation by the Justice Department for violations of U.S. export and anti-racketeering laws, the investigators said. ISC bought the
equipment from American defense contractors, the reports said.
The reports suggested that ISC, sometimes through a front company, made apparently illegal shipments of missile guidance
technology and anti-aircraft radar to South Africa, some of which were then sent to Iraq. The Pennsylvania paper didnt list any
specic military hardware that might have been used by Iraq in the Gulf War; Nightline suggested Iraqi anti-aircraft ba>eries may
have beneted from U.S. technology.
Pentagon ocials and senior ISC executives told the paper there was regular contact between CIA ocers and ISC executives who
visited South Africa. Federal investigators have suggested the agency developed the relationship with the company to monitor
Pretoria nuclear weapons program.
CIA ocials refused to comment to the paper on ISC arms shipments. They released a brief statement saying the agency has a policy
of cooperating with the Justice Department in cases of possible violations of U.S. law.
According to the investigators, the shipments appeared to violate a Dec. 4, 1981, order from President Reagan prohibiting covert
operations without prior presidential approval.
The South African shipments also appear to violate of the Arms Export Control Act of 1976 and the Comprehensive Anti-Apartheid
Act of 1986, which restricts commerce with the white-minority regime, the agents told reporters.
Guerin has entered into a guilty plea agreement with federal prosecutors for his role in arms shipments. But he has strongly denied
reports that he transferred ISC cluster bomb technology to Iraq via Chile through his long- time business associate and fellow arms
broker, Carlos Cardoen.
Guerins a>orney, Joseph Tate of Philadelphia, said Wednesday that his client was traveling and unavailable for comment on the
allegations.
The ocials said the CIA was well aware of ISCs ability to procure sophisticated weapons.
In 1974, about three years after Guerin started his company, the National Security Agency recruited ISC to complete Project X, a chain
of listening posts in South Africa. The posts were intended to monitor Soviet submarine and other shipping trac around the Cape of
Good Hope, according to Justice Department and Pentagon sources.
Mounting pressure on U.S. companies to distance themselves from South Africa during the Ford Administration forced NSA to look
for non-public companies to complete the installation of the posts, sources said.
The NSA and Guerin created Gamma Systems Associates, located it in a post oce box at New Yorks John F. Kennedy Airport and
set up Swiss banking relationships for the front company, according to court records.
In 1977, the NSA-ISC relationship ocially ended when President Carter ordered all U.S. rms to cease military business with the
Pretoria government, the sources said.
But South Africas appetite for western technology grew in the early 1980s, and Guerin had developed close relationships with South
Africas government- controlled industrial and military giants, Barlow Rand and Armscor, the sources said.
The scale of business ISC did with South Africa began to arouse suspicion in Washington that ISC might be in violation of the U.S.
and U.N. arms embargoes, the sources said. But Guerin rekindled his intelligence relationships by oering the CIA access to his
people upon their return from Johannesburg, according to a senior investigator.
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1 of 2 8/31/2016 4:34 AM
DOCUMENT DIVIDER

ACLU v. NSA: The Challenge to Illegal Spying http://www.aclu.org/print/national-security/aclu-v-nsa-challenge-illegal-s...
National Security | Surveillance
ACLU v. NSA: The Challenge to

Illegal Spying
December 20, 2005
ACLU v. NSA: The Challenge to Illegal Spying

In 2006, in the first federal challenge ever argued
against the president's NSA spying program, the
ACLU defeated the Bush administration when a
district court declared the program unconstitutional.
But in July 2007, the 6th Circuit overturned that
decision. The ACLU asked the Supreme Court of the
United States to consider the ruling, but in February
2008, the Court declined to review the challenge.
Read More >>
It's been nearly two years since we first found out that our own
government has been tapping our phones and reading our e-mails. In
2005, the nation learned that President Bush has repeatedly
authorized the National Security Agency to monitor the phone calls
and emails of people inside the United States, without a warrant and in
violation of the Constitution. Authorized days after September 11, 2001, Video: ACLU v. NSA
this warrantless wiretapping program is part of a broad pattern of the from the Courthouse
executive branch using "national security" as an excuse for encroaching Steps (YouTube)
on the privacy and free speech rights of Americans without adequate
oversight. ACLU v NSA
> News
The ACLU won the first round of its legal challenge in August 2006, > Organizations and
when U.S. District Court Judge Anna Diggs Taylor ruled the NSA People
program violates the First Amendment, the Fourth Amendment, and > Legal Documents
the Foreign Intelligence Surveillance Act in her ACLU v. NSA decision. > Resources
"It was never the intent of the Framers to give the President such
unfettered control," Taylor wrote in the decision, "particularly where ACLU v. DOJ - NSA
his actions blatantly disregard the parameters clearly enumerated in FOIA
the Bill of Rights." > News and Legal
Documents
After this initial victory, the ACLU returned to court on January 31,
2007, where the Sixth Circuit Court of Appeals heard arguments from
1 of 3 1/1/2010 8:57 AM

both sides. Despite the Bush administration's January announcement
that wiretapping warrants are now subject to FISA court approval, the FISC
president is still claiming the "inherent authority" to engage in > Decision: FISA Court
warrantless eavesdropping - even his own attorneys acknowledged that Denies Public Access to
nothing would stop him from resuming warrantless surveillance at any Records Concerning
time. Then ACLU Associate Legal Director Ann Beeson urged the court Wiretapping (12/11
to exercise its proper authority and require the president to follow the /2007)
law.
In July 2007, the Sixth Circuit Court of Appeals dismissed the case, ruling the plaintiffs in the
case - which includes scholars, journalists, and national nonprofit organizations - had no
standing to sue because they could not state with certainty that they have been wiretapped by
the NSA.
The decision "insulates the Bush administration's warrantless surveillance activities from
judicial review and deprives Americans of any ability to challenge the illegal surveillance of their
telephone calls and e-mails," said ACLU Legal Director Steve Shapiro. He added the ruling "did
not uphold the legality of the government's warrantless surveillance activity. Indeed, the only
judge to discuss the merits clearly and unequivocally declared that the warrantless surveillance
was unlawful."
Because the appeals court refused to rule on the legality of the program, Americans were denied
the chance to contest the warrantless surveillance of their telephone calls and e-mails. In
October 2007, the ACLU appealed the ruling to the Supreme Court of the United States. The
Court declined the case in February 2008.
In August 2007, following the passage of the so-called Protect America Act - a law that vastly
expands the Bush administration's authority to conduct warrantless wiretapping of Americans'
international phone calls and emails - the ACLU filed a request with the Foreign Intelligence
Surveillance Court for court orders and legal papers pertaining to the government's authority to
secretly wiretap Americans.
In December 2007 the FISC ruled that, despite the fact that release of the orders would inform
the public about the government's surveillance powers, the court would not conduct a review to
determine whether the legal rulings were properly determined to be classified.
The Senate Judiciary Committee has asked the Bush Administration no less than nine times for
information about the NSA's illegal spying. On June 27, 2007, the Senate Judiciary Committee
issued subpoenas to the White House, Vice President and the Justice Department for documents
about this warrantless surveillance program. After missing a second deadline in August,
Committee Chairman Patrick Leahy (D-VT) declared he would move towards holding the
adminstration in contempt. In October, after nearly four months without meaningful reply, the
ACLU once again asked the Committee to go forward with contempt proceedings against White
House officials for refusing to cooperate with the subpoenas and reminded Congress of its
constitutional authority to do so.
UNCHECKED GOVERNMENT SPYING

More >>
2 of 3 1/1/2010 8:57 AM

Published on American Civil Liberties Union (http://www.aclu.org)
Source URL: http://www.aclu.org/national-security/aclu-v-nsa-challenge-illegal-spying
3 of 3 1/1/2010 8:57 AM
DOCUMENT DIVIDER

08-4726-cv
Wilner v. National Security Agency
UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
August Term, 2009
(Argued: October 9, 2009 Decided: December 30, 2009)
Docket No. 08-4726-cv
THOMAS WILNER , GITANJALI GUTIERREZ , MICHAEL J. STERNHELL , JONATHAN WELLS DIXON ,

JOSHUA COLANGELO BRYAN , BRIAN J. NEFF , JOSEPH MARGULIES, SCOTT S. BARKER, JAMES E.
DORSEY , ASMAH TAREEN , RICHARD A. GRIGG , THOMAS R. JOHNSON , GEORGE BRENT MICKUM IV,
STEPHEN M. TRUITT, JONATHAN HAFETZ , TINA M. FOSTER, ALISON SCLATER, MARC D. FALKOFF,
DAVID H. REMES, H. CANDACE GORMAN , CHARLES CARPENTER, JOHN A. CHANDLER and CLIVE
STAFFORD SMITH ,
Plaintiffs-Appellants,
v.
NATIONAL SECURITY AGENCY and DEPARTMENT OF JUSTICE ,
Defendants-Appellees.*
Before: CABRANES and LIVINGSTON , Circuit Judges, and KORMAN , District Judge.**
Plaintiffs-appellants Thomas Wilner, et al., attorneys representing individuals detained by the
United States government at Guantnamo Bay, Cuba, appeal from a July 31, 2008 judgment of the
United States District Court for the Southern District of New York (Denise Cote, Judge) entered after a
June 25, 2008 opinion and order granting the motion for summary judgment of defendants-appellees
the National Security Agency (NSA) and the Department of Justice (DOJ) in plaintiffs Freedom
*
The Clerk of Court is directed to amend the official caption in this case to conform to the
listing of the parties above.
The Honorable Edward R. Korman, of the United States District Court for the Eastern
**
District of New York, sitting by designation.

1

of Information Act (FOIA) case. Plaintiffs submitted FOIA requests to the NSA and DOJ seeking
records showing whether the government has intercepted plaintiffs communications relating to the
representation of their detainee clients. The NSA and DOJ served and filed so-called Glomar
responsesneither confirming nor denying the existence of such recordspursuant to FOIA
Exemptions 1 and 3. Whether, as a general matter, agencies may invoke the Glomar doctrine and
whether, in particular, the NSA may invoke the Glomar doctrine in response to a FOIA request for
records obtained under the Terrorist Surveillance Program (TSP) are both questions of first
impression for our Court.
We affirm the judgment of the District Court upholding the NSAs Glomar response and hold
that: (1) a Glomar response is available to agencies as a valid response to FOIA requests; (2) an agency
may issue a Glomar response to FOIA requests seeking information obtained pursuant to a publicly
acknowledged intelligence program such as the TSP, at least when the existence of such information
has not already been publicly disclosed; (3) the NSA properly invoked the Glomar doctrine in response
to plaintiffs request for information pursuant to FOIA Exemption 3; (4) the governments affidavits
sufficiently allege the necessity of a Glomar response in this case, making it unnecessary for us to review
or to require the District Court to review ex parte and in camera any classified affidavits that the NSA
might proffer in support of its Glomar response; and (5) we find no evidence in the record that the NSA
invoked Glomar for the purpose of concealing activities that violate the Constitution or are otherwise
illegal. We agree with counsel for all parties that we need not reach the legality of the underlying TSP
because that question is outside of the scope of this FOIA action.
Affirmed.
KATHRYN A. SABBETH , Georgetown University Law Center

Institute for Public Representation (David C. Vladeck,
Georgetown University Law Center, on the brief; James R.
Rubin, Karen Borg, Mark A. Schwartz, Butler Rubin


as a general matter, agencies may invoke the Glomar doctrine and whether, in particular, the NSA may
invoke the Glomar doctrine in response to a FOIA request for records obtained under the Terrorist
Surveillance Program (TSP or program) are both questions of first impression for our Court.
We affirm the judgment of the District Court upholding the NSAs Glomar response and hold
that (1) agencies may invoke the Glomar doctrine when responding to FOIA requests, and thus may
refuse to confirm or deny the existence of the requested records to prevent cognizable harm under a
FOIA exemption; (2) Glomar responses are available, when appropriate, to agencies when responding to
FOIA requests for information obtained under a publicly acknowledged intelligence program, such
as the TSP, at least when the existence of such information has not already been publicly disclosed; (3)
the NSA properly issued a Glomar response to plaintiffs request for information pursuant to FOIA
Exemption 3 (specifically, pursuant to section 6 of the National Security Agency Act of 1959); (4) the
governments affidavits sufficiently support its invocation of the Glomar doctrine in this case and we
therefore decline to review ourselves or require the District Court to review ex parte and in camera any
classified affidavits the NSA might proffer in further support of its Glomar response; and (5) we find no
evidence in this record that the NSA invoked Glomar for the purpose of concealing illegal or
unconstitutional activities. We agree with counsel for all parties that we need not determine the legality
of the TSP because that question is beyond the scope of this FOIA action.
withholding or refers to particular types of matters to be withheld. Id. 552(b)(3), amended by Pub.
L. No. 111-83, 564(b), 123 Stat. 2142, 2184 (Oct. 28, 2009).
4
BACKGROUND
Plaintiffs2 are law professors and attorneys at prominent law firms and established non-
profit organizations, who represent individuals detained by the United States government at
Guantnamo Bay, Cuba, for suspected terrorist activity. Appellants Br. 5. Plaintiffs note that they
began representing detainees after undergoing security clearance. Defendants are the NSA and the
DOJ. The NSA is an agency within the Department of Homeland Security that is charged with, among
other tasks, collecting, processing, and disseminating signals intelligence (SIGINT) information for
national foreign intelligence purposes. NSAs SIGINT work includes intercepting communications
necessary to national defense, national security, and the conduct of the foreign affairs of the United
States. The DOJ is the cabinet department charged with law enforcement relevant to this case.
In the aftermath of the September 11, 2001 attacks on the United States by al Qaeda, President
George W. Bush secretly authorized the TSP, which empowered the NSA to intercept the
international communications of people with known links to Al Qaeda and related terrorist
organizations. George W. Bush, Presidents Radio Address (Dec. 17, 2005), excerpted in Bush on the
Patriot Act and Eavesdropping, N.Y. Times, Dec. 18, 2005, at 43 (full transcript available at
http://www.nytimes.com/2005/12/17/politics/17text-bush.html (last visited Oct. 28, 2009))
(President Bushs Address). President Bush described the TSP as a highly classified program that is
crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United
States, our friends and allies. Id. It is not disputed that TSP surveillance was conducted without
warrants and without oversight by the Foreign Intelligence Surveillance Court (FISC). The FISC is a
2
The parties submitted a stipulation dated October 13, 2009, withdrawing claims of
appellant Anne Castle without costs and without attorneys fees pursuant to Rule 42(b) of the
Federal Rules of Appellate Procedure, as a result of her appointment to the position of Assistant
Secretary of the Interior for Water and Science. The claims of the other remaining appellants are
unaffected by the stipulation.
5
United States court that was established by the Foreign Intelligence Surveillance Act of 1978 (FISA)
and has jurisdiction to hear applications for and grant orders approving electronic surveillance
anywhere within the United States under the procedures set forth in the FISA, 50 U.S.C. 1803 (a)(1),
and to hear applications for and grant orders approving a physical search for the purpose of obtaining
foreign intelligence information anywhere within the United States under the procedures set forth in
the FISA. 50 U.S.C. 1822 (c).
The TSP served as an early warning system intended to detect and prevent further terrorist
attacks by intercepting communications between known and potential terrorists and their affiliates. To
intercept a communication under the TSP, one of the parties to the communication had to be located
outside of the United States, and there had to be a reasonable basis to conclude that one party to the
communication was a member of al Qaeda, affiliated with al Qaeda, or a member of an affiliated
organization. The NSA conducted TSP surveillance in secret until, following news reports revealing
the program, President Bush publicly acknowledged the existence of the TSP in a radio address on
December 17, 2005. On January 17, 2007, Attorney General Alberto Gonzales announced that TSP
electronic surveillance would henceforth be subject to the approval of the FISC and that the Presidents
original authorization of the TSP had lapsed. The TSP itself has ceased to exist and, as counsel for the
government noted at oral argument, to the extent that any similar electronic surveillance is taking place,
that activity shifted under the rubric of the FISA court. Tr. 12-13.
By separate letters to the NSA and the DOJ dated January 18, 2006, plaintiffs requested,
pursuant to FOIA, seven categories of records.3 Only the first of plaintiffs FOIA requests (Request
3
As the District Court summarized:
FOIA was enacted in 1966 to improve public access to information held by

government agencies. Pierce & Stevens Chem. Corp. v. U.S. Consumer Prod. Safety Commn,
585 F.2d 1382, 1384 (2d Cir. 1972). It expresses a public policy in favor of disclosure
No. 1) is at issue on this appeal.4 Request No. 1 sought records obtained or relating to ongoing or
completed warrantless electronic surveillance or physical searches regarding, referencing or concerning
any of the plaintiffs.
In response to plaintiffs Request No. 1, the NSA invoked the Glomar doctrinemeaning that it
refused to confirm or deny whether the agency possessed records responsive to the request. This
lawsuit followed. Plaintiffs complaint alleged that they have a statutory right to the records that they
seek, and there is no legal basis for the defendants refusal to disclose them, and sought principally a
declaration that defendants refusal to disclose the requested records was unlawful and an order
compelling defendants to produce the records without further delay. J.A. 8 (Second Am. Compl. for
Declaratory and Injunctive Relief). The NSA and DOJ filed a Motion for Partial Summary Judgment
on the Glomar issue.
so that the public might see what activities federal agencies are engaged in. A. Michaels
Piano, Inc. v. F.T.C., 18 F.3d 138, 143 (2d Cir. 1994). FOIA requires a federal agency to
disclose records in its possession unless they fall under one of nine enumerated and
exclusive exemptions. 5 U.S.C. 552(a)(3)-(b); see also Dept of the Air Force v. Rose, 425
U.S. 352, 361 (1976). The statutory exemptions do not obscure the basic policy that
disclosure, not secrecy, is the dominant objective of the Act. Dept of the Interior and Bur.
of Indian Affairs v. Klamath Water Users Protective Assn, 532 U.S. 1, 8 (2001) (citation
omitted). The exemptions are thus to be given a narrow compass. Id. (citation
omitted); see also Natl Council of La Raza v. Dept of Justice, 411 F.3d 350, 356 (2d Cir.
2005).
Wilner v. Natl Sec. Agency, No. 07 Civ. 3883, 2008 WL 2567765, at *2 (S.D.N.Y. June 25, 2008).
4
The NSA responded to plaintiffs other requests by claiming that the records that plaintiffs
sought were exempt under FOIA. Plaintiffs challenged both the NSAs refusal to disclose those
records under FOIA as well as its Glomar response to Request No. 1. Upon plaintiffs motion, the
District Court bifurcated the two claims and temporarily suspended its consideration of plaintiffs
non-Glomar challenges. The District Court then granted certification under Rule 54(b) of the
Federal Rules of Civil Procedure on plaintiffs Glomar challenge so that plaintiffs could pursue this
appeal. Wilner v. Natl Sec. Agency, No. 07 Civ. 3883, 2008 WL 2949325 (S.D.N.Y. July 31, 2008).
In an opinion and order of June 25, 2008, the District Court granted defendants motion for
partial summary judgment, holding that (1) the NSA was permitted to provide a Glomar response to
plaintiffs FOIA requests for information potentially acquired through electronic surveillance because
the requested records, if they exist, are protected under FOIA Exemption 3 (specifically, pursuant to
section 6 of the National Security Agency Act of 19595); (2) revealing whether or not the requested
documents exist would not only violate particular statutes, but would also undermine national security;
(3) the NSA did not provide a Glomar response for the purpose of concealing illegality; and (4) any
challenge to the legality of the underlying TSP was beyond the scope of plaintiffs FOIA suit.
DISCUSSION
The issues on appeal are whether, in a FOIA action, a court may uphold an agencys invocation
of the Glomar doctrine where the Executive Branch has officially acknowledged the existence and
contours of a program concerning which records are sought and where the agency claims the specific
documents requested fall under, or would fall under, identified FOIA exemptions. Accordingly, we
consider first whether to adopt the Glomar doctrine in our Circuit and second, if it is in fact available,
whether the Glomar doctrine was properly invoked in this case.
I. The Glo m ar Doctrine
As the District Court noted in its opinion, [t]he Second Circuit has never opined on the Glomar
Response. Wilner, 2008 WL 2567765, at *2 n.2. We take this opportunity now to address the
availability of the Glomar doctrine to an agency when it responds to a FOIA request.
The Glomar doctrine originated in a FOIA case concerning records pertaining to the Hughes
Glomar Explorer, an oceanic research vessel. See Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976). In
Section 6 states that no law . . . shall be construed to require the disclosure . . . of any
5
information with respect to the activities of the NSA. National Security Agency Act of 1959, Pub.
L. No. 86-36, 6, 73 Stat. 63, 64 (codified at 50 U.S.C. 402 note).
Phillippi, the Central Intelligence Agency (CIA) claimed that the existence or nonexistence of the
requested records was itself a classified fact exempt from disclosure under . . . FOIA. Id. at 1012. The
CIA then responded to the plaintiffs FOIA request by asserting that, in the interest of national
security, involvement by the U.S. government in the activities which are the subject matter of
[plaintiffs] request can neither be confirmed nor denied. Id. This principlethat an agency may,
pursuant to FOIAs statutory exemptions, refuse to confirm or deny the existence of certain records in
response to a FOIA requesthas since become known as the Glomar doctrine. See, e.g., Hunt v. CIA,
981 F.2d 1116, 1117-18 (9th Cir. 1992). The government urges us to adopt the Glomar doctrine as
Circuit law, and plaintiffs do not object to our doing so. Mindful that mere stipulation by the parties,
standing alone, cannot serve as the basis for our conclusions of law, we turn to that question.
The Glomar doctrine and government use of the Glomar response is firmly established in other
Circuits. See, e.g., Larson v. Dept of State, 565 F.3d 857, 861-62, 870 (D.C. Cir. 2009) (upholding the
NSAs use of the Glomar response to plaintiffs FOIA requests regarding past violence in Guatemala
pursuant to FOIA Exemptions 1 and 3); Bassiouni v. CIA, 392 F.3d 244, 246 (7th Cir. 2004) (noting that
the Glomar doctrine is well established); Minier v. CIA, 88 F.3d 796, 800-02 (9th Cir. 1996) (permitting
the CIA to invoke the Glomar doctrine in response to a FOIA request seeking employment records of
an alleged CIA operative); cf. Carpenter v. U.S. Dept of Justice, 470 F.3d 434, 436-37 (1st Cir. 2006)
(endorsing the Glomar doctrine though evaluating the case as an ordinary FOIA suit after assuming the
existence of documents that plaintiff requested under FOIA). The Glomar doctrine is well settled as a
proper response to a FOIA request because it is the only way in which an agency may assert that a
particular FOIA statutory exemption covers the existence or nonexistence of the requested records
in a case in which a plaintiff seeks such records. Phillippi, 546 F.2d at 1012; see also Larson, 565 F.3d at
861 ([FOIAs] exemptions cover not only the content of the protected government records but also
the fact of their existence or nonexistence, if that fact itself properly falls within the exemption.)
We now join our sister Circuits in holding that an agency may refuse to confirm or deny the
existence of records where to answer the FOIA inquiry would cause harm cognizable under a[ ] FOIA
exception. Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982). To properly employ the Glomar
response to a FOIA request, an agency must tether its refusal to respond, Wilner, 2008 WL 2567765,
at *3, to one of the nine FOIA exemptionsin other words, a government agency may . . . refuse to
confirm or deny the existence of certain records . . . if the FOIA exemption would itself preclude the
acknowledgment of such documents. Minier, 88 F.3d at 800 (emphasis added).
An agency resisting disclosure of the requested records has the burden of proving the
applicability of an exemption. Id. The agency may meet its burden by submitting a detailed affidavit
showing that the information logically falls within the claimed exemptions. Id. (internal quotation
marks and citation omitted). As the Phillippi Court explained, a responsive affidavit should explain[ ]
in as much detail as possible the basis for [the agencys] claim that it can be required neither to confirm
nor to deny the existence of the requested records. Phillippi, 546 F.2d at 1013.
In evaluating an agencys Glomar response, a court must accord substantial weight to the
agencys affidavits, provided [that] the justifications for nondisclosure are not controverted by contrary
evidence in the record or by evidence of . . . bad faith. Minier, 88 F.3d at 800 (internal quotation
marks omitted). The court should attempt to create as complete a public record as is possible. . . . The
[a]gencys arguments should then be subject to testing by [plaintiff], who should be allowed to seek
appropriate discovery when necessary . . . . Only after the issues have been identified by this process
should the District Court, if necessary, consider arguments or information [ex parte and in camera] which
the [a]gency is unable to make public. Phillippi, 546 F.2d at 1013.
10
II. The Glo m ar Doctrine in This Case
Although plaintiffs do not take issue with the Glomar doctrine as a general rule or as a
permissible response to some FOIA requests, they contend that the NSAs invocation of the Glomar
doctrine in this particular case was inappropriate because (1) the TSP is no longer a secret national
security program, (2) any responsive records, if they exist, are not exempt under FOIA, and (3) the
NSAs affidavits in support of its invocation of Glomar, which are part of the public record, are
insufficient to sustain the agencys burden of proof.
We review de novo a district courts grant of summary judgment in FOIA litigation. See, e.g., Tigue
v. Dept of Justice, 312 F.3d 70, 75 (2d Cir. 2002). We also conduct de novo review when a member of the
public challenges an agencys assertion that a record being sought is exempt from disclosure. A.
Michaels Piano, Inc. v. FTC, 18 F.3d 138, 143 (2d Cir. 1994). The agency asserting the exemption bears
the burden of proof, and all doubts as to the applicability of the exemption must be resolved in favor of
disclosure. See id.; see also Carney v. U.S. Dept of Justice, 19 F.3d 807, 812 (2d Cir. 1994) ([T]he defending
agency has the burden of showing . . . that any withheld documents fall within an exemption to the
FOIA.). Affidavits or declarations . . . giving reasonably detailed explanations why any withheld
documents fall within an exemption are sufficient to sustain the agencys burden. Carney, 19 F.3d at
812. The [a]ffidavits submitted by an agency are accorded a presumption of good faith. Id. (internal
quotation marks omitted).
A. Glo m ar Response to Requests for Information Gathered Pursuant to the TSP
Plaintiffs first argue that Glomar may be invoked only to preserve the secrecy of a covert
intelligence program or secret intelligence sources and methods, Appellants Br. 12, and that the NSA
inappropriately provided a Glomar response in this case because the TSP is no longer a secret program
11
in light of the governments public acknowledgment of its existence and purpose following its
controversial disclosure by the news media and ensuing public controversy. Whether the Glomar
doctrine may be invoked in response to a FOIA request for records obtained under the TSP is also an
issue of first impression for our Court.
We now hold that, as a general rule, (1) an agency may provide a Glomar response to FOIA
requests for information gathered under a program whose existence has been publicly revealed, and
may do so specifically with respect to information gathered under the TSP, and (2) that such a response
will be reviewed in the same manner as any other Glomar response to a FOIA request. The
governments decision to make public the existence of the TSP does not alter the rationale for allowing
an agency to provide a Glomar responsenamely, to prevent the sort of harm that a FOIA exemption
is designed to prevent.
The record is clear that, although the general existence of the TSP has been officially
acknowledged, the specific methods used, targets of surveillance, and information obtained through the
program have not been disclosed. President Bush announced that he had authorized the NSA to
intercept the international communications of people with known links to Al Qaeda and related
terrorist organizations. President Bushs Address, supra. Additionally, CIA Director6 Michael Hayden
noted that the general procedures the NSA implements in conducting electronic surveillance were also
applicable to the TSP. He also indicated that, under the TSP, the NSA was targeting communications
where one party is outside of the United States. General Michael V. Hayden, What American
Intelligence & Especially the NSA Have Been Doing To Defend the Nation, Address to the National
At the time of the cited speech, January 23, 2006, Gen. Hayden was the Principal Deputy
6
Director of National Intelligence. See What American Intelligence & Especially the NSA Have Been
Doing To Defend the Nation, Address to the National Press Club (Jan. 23, 2006), available at
http://www.dni.gov/speeches/20060123_speech.htm (last visited Dec. 22, 2009).
12
Press Club (Jan. 23, 2006), available at http://www.dni.gov/speeches/20060123_speech.htm (last visited
Dec. 22, 2009). However, at no time have the President or other members of the national government
in either the Bush or Obama Administrations publicly confirmed or denied that particular persons were
targeted or subject to surveillance.
The Glomar doctrine is applicable in cases where to answer the FOIA inquiry would cause
harm cognizable under a[ ] FOIA exception, Gardels, 689 F.2d at 1103in other words, in cases in
which the existence or nonexistence of a record is a fact exempt from disclosure under a FOIA
exception. An agency is therefore precluded from making a Glomar response if the existence or
nonexistence of the specific records sought by the FOIA request has been the subject of an official
public acknowledgment. If the government has admitted that a specific record exists, a government
agency may not later refuse to disclose whether that same record exists or not. See Wolf v. CIA, 473
F.3d 370, 378-79 (D.C. Cir. 2007); cf. Hudson River Stoop Clearwater, Inc. v. Dept of the Navy, 891 F.2d 414,
421 (2d Cir. 1989).
Here, although the public is aware that the TSP exists, the government has found it necessary to
keep undisclosed the details of the programs operations and scopethe subject of plaintiffs FOIA
request in this case. The fact that the public is aware of the programs existence does not mean that the
public is entitled to have information regarding the operation of the program, its targets, the
information it has yielded, or other highly sensitive national security information that the government
has continued to classify. Indeed, the fact that the TSPs existence has been made public reinforces the
governments continuing stance that it is necessary to keep confidential the details of the programs
operations and scope.
13
We therefore hold that, as a threshold matter, and as a general rule, an agency may invoke the
Glomar doctrine in response to a FOIA request regarding a publicly revealed matter. An agency only
loses its ability to provide a Glomar response when the existence or nonexistence of the particular
records covered by the Glomar response has been officially and publicly disclosed. We hold, in
particular, that an agency may invoke the Glomar doctrine with respect to the TSP, at least with respect
to those aspects of the program that have not been the subject of such disclosures. Accordingly, we
now turn our attention to the question of whether the NSA in this particular case has met its burden to
justify its Glomar response.
B. The NSAs Invocation of Glo m ar Pursuant to FOIA Exemptions in the

Instant Case
Plaintiffs contend that even if the Glomar doctrine may be invoked in the context of a TSP-
related FOIA request, the records plaintiffs seek here are not exempt from public disclosure under
FOIA. Accordingly, plaintiffs argue, confirming or denying the existence of these records is not
exempt from public disclosure. We agree with the District Court that, in order to invoke the Glomar
response to a FOIA request, an agency must tether its refusal, Wilner, 2008 WL 2567765, at *3, to
one of the nine FOIA exemptions. In other words, a government agency may . . . refuse to confirm
or deny the existence of certain records . . . if the FOIA exemption would itself preclude the
acknowledgment of such documents. Minier, 88 F.3d at 800. We adopt the District Courts careful
and well-reasoned analysis, and affirm its judgment, including the holding that NSAs Glomar response
was properly tethered to FOIA Exemption 3, under section 6 of the National Security Agency Act of
1959.
The NSA tied its Glomar response to FOIA Exemptions 1 and 3. Exemption 1 permits the
nondisclosure of records that are (A) specifically authorized under criteria established by an Executive
14
order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly
classified pursuant to such Executive order. 5 U.S.C. 552(b)(1). In invoking Exemption 1, the NSA
specifically relies on Executive Order 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995), as amended by
Executive Order 13,292, 68 Fed. Reg. 15,315 (Mar. 25, 2003), which provides that an agency may
classify records relating to, inter alia, intelligence activities (including special activities), intelligence
sources or methods, or cryptology, and vulnerabilities or capabilities of systems, installations,
infrastructures, projects, plans, or protection services relating to the national security, which includes
defense against transnational terrorism. 68 Fed. Reg. at 15,317. Under Executive Order 12,958, as
amended, an agency may classify information when it determines that the unauthorized disclosure of
the information reasonably could be expected to result in damage to the national security, which
includes defense against transnational terrorism, and the original classification authority is able to
identify or describe the damage. Id. at 15,315. As the District Court noted, the Executive Order
specifically countenances the Glomar Response, permitting a classifying agency to refuse to confirm or
deny the existence or nonexistence of requested records whenever the fact of their existence or
nonexistence is itself classified under this order or its predecessors. Id. at 15324. Wilner, 2008 WL
2567765, at *3.
FOIA Exemption 3 applies to records specifically exempted from disclosure by statute,
provided that the statute requires that the matters be withheld from the public in such a manner as to
leave no discretion on the issue. 5 U.S.C. 552(b)(3). In invoking Exemption 3, the NSA relies on
three statutes that preclude disclosure of the documents plaintiffs seek. First, the NSA argues that the
documents are exempt under section 6 of the National Security Agency Act of 1959 (NSAA), Pub. L.
No. 86-36, 6, 73 Stat. 63, 64 (codified at 50 U.S.C. 402 note), which provides that:
15
[N]othing in this Act or any other law . . . shall be construed to require the disclosure of the
organization or any function of the National Security Agency, of any information with respect
to the activities thereof, or of the names, titles, salaries, or number of persons employed by such
agency.
Second, the NSA relies on section 102(A)(i)(1) of the Intelligence Reform and Terrorism Prevention
Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (codified at 50 U.S.C. 403-l(i)(1)), which requires the
Director of National Intelligence to protect intelligence sources and methods from unauthorized
disclosure. Third, the NSA invokes section 798 of Title 18 of the U.S. Code, which criminalizes
disclosure of information concerning, inter alia, the communication intelligence activities of the United
States.
Because defendants need only proffer one legitimate basis for invoking the Glomar response and
FOIA Exemptions 1 and 3 are separate and independent grounds in support of a Glomar response, we
consider only the applicability of FOIA Exemption 3. See Larson, 565 F.3d at 862-63, ([A]gencies may
invoke the exemptions independently and courts may uphold agency action under one exemption
without considering the applicability of the other.). The District Court held that the NSAs affidavits
provide the requisite detailed explanations for withholding the documents requested in FOIA Request
No. 1 under FOIA Exemption 3. Specifically, defendants have demonstrated that acknowledging the
existence or nonexistence of the information entailed in FOIA Request No. 1 would reveal the NSAs
organization, functions, and activities, in contravention of Section 6 of the NSAA. Wilner, 2008 WL
2567765, at *4. We agree with the District Courts holding with respect to FOIA Exemption 3, and we
adopt its thorough analysis, which for convenience we set forth in full below:
In CIA v. Sims, 471 U.S. 159 (1985), the Supreme Court adopted a two-pronged approach to
evaluating an agencys invocation of FOIA Exemption 3: First, the court must consider
whether the statute identified by the agency is a statute of exemption as contemplated by
Exemption 3. Second, the court must consider whether the withheld material satisfies the
criteria of the exemption statute. Id. at 167; see Fitzgibbon v. C.I.A., 911 F.2d 755, 761 (D.C. Cir.
16
1990). As the D.C. Circuit has observed, [e]xemption 3 presents considerations distinct and
apart from the other eight exemptions inscribed in FOIA. Assn of Retired R.R. Workers v. U.S.
R.R. Retirement Bd., 830 F.2d 331, 336 (D.C. Cir. 1987):
Exemption 3 differs from other FOIA exemptions in that its applicability depends less
on the detailed factual contents of specific documents; the sole issue for decision is the
existence of a relevant statute and the inclusion of withheld material within the statutes
coverage.
Id.
Defendants argue, and plaintiffs do not dispute, that Section 6 of the NSAA qualifies as
an exemption statute under Exemption 3. The D.C. Circuitthe only circuit court to have
considered this questionconcurs. See Founding Church of Scientology, Inc. v. NSA, 610 F.2d 824,
828 (D.C. Cir. 1979); Hayden v. NSA, 608 F.2d 1381, 1389 (D.C. Cir. 1979). Indeed, the
language of Section 6 makes quite clear that it falls within the scope of Exemption 3. Section 6
states that no law . . . shall be construed to require the disclosure . . . of any information with
respect to the activities of the NSA. Pub. L. No. 86-36, 6, 73 Stat. 63, 64, codified at 50
U.S.C. 402. Section 6 thus specifically exempt[s] certain information from disclosure. 5
U.S.C. 552(b)(3).
Wilner, 2008 WL 2567765, at *4 (alterations in original).
C. Sufficiency of the NSAs Affidavits

1. The NSAs Affidavits in This Case
As we stated above, the agency resisting disclosure has the burden of proving the applicability
of a FOIA exemption and may may meet its burden by submitting a detailed affidavit showing that the
information logically falls within the claimed exemptions. Minier, 88 F.3d at 800 (internal quotation
marks omitted). At oral argument before our Court, plaintiffs argued that the NSA had not met its
burden and that the governments declarations were inadequate to support its invocation of Glomar.
We are not entirely convinced that plaintiffs preserved this argument,7 but even if we were to reach the
7
The District Court noted in its opinion that [p]laintiffs do not challenge the legal basis for
defendants Glomar Response, nor do they challenge the sufficiencyeither in form or
substanceof defendants affidavits in support of their reliance on FOIA Exemption 3 and Section
6 of the NSAA. Wilner, 2008 WL 2567765, at *6. In response to our request that plaintiffs provide
citations to the record showing where they had made these arguments in proceedings before the
District Court, plaintiffs submitted a supplemental letter dated October 14, 2009. Although
plaintiffs provide citations to places in the record where they stated the rule that the burden of proof
17
merits of whether the governments affidavits are sufficient, we agree with the District Court that the
NSA has met its burden in this case.
An agency that has withheld responsive documents pursuant to a FOIA exemption can carry its
burden to prove the applicability of the claimed exemption by affidavit, and we review the agencys
justifications therein de novo. Ctr. for Natl Sec. Studies v. Dept of Justice, 331 F.3d 918, 926 (D.C. Cir.
2003); see also 5 U.S.C. 552(a)(4)(B). Summary judgment is warranted on the basis of agency
affidavits when the affidavits describe the justifications for nondisclosure with reasonably specific
detail, demonstrate that the information withheld logically falls within the claimed exemption, and are
not controverted by either contrary evidence in the record nor by evidence of agency bad faith.
Ultimately, an agencys justification for invoking a FOIA exemption is sufficient if it appears logical or
plausible. Larson, 565 F.3d at 862 (internal quotation marks and citations omitted).
In evaluating an agencys Glomar response, a court must accord substantial weight to the
agencys affidavits. Minier, 88 F.3d at 800 (internal quotation marks omitted). In according such
weight to the affidavits on which the District Court relied, we conclude that they provide sufficient
detail that the question of the existence or nonexistence of the requested records falls within
Exemption 3 of FOIA. The NSA asserts that it cannot provide any more information without doing
cognizable harm, and we agree. The affidavits sufficiently establish that nondisclosure is
appropriateperhaps essentialfor reasons of national security and confidentiality. Minor details of
intelligence information may reveal more information than their apparent insignificance suggests
because, much like a piece of jigsaw puzzle, [each detail] may aid in piecing together other bits of
rests with the agency resisting disclosure, it seems that plaintiffs did not preserve their specific
argument that the NSAs affidavits were insufficient to sustain its burden in this case. However,
because the District Court addressed the matter thoroughly in its opinion, we rely on its disposition
of the merits.
18
information even when the individual piece is not of obvious importance in itself. Larson, 565 F.3d at
864 (alterations in original).
In the interest of thoroughness, the District Court provided a detailed explanation and analysis
of the affidavits submitted by the NSA to support its claim that even confirming or denying the existence of
the requested records would cause a harm that the exemptions to FOIA seek to avoid. We adopt that
analysis as follows:
Defendants contend that [a]cknowledging the existence or non-existence of the

information requested by Plaintiffs FOIA Request No. 1 would unquestionably reveal NSAs
organization, functions and activities by revealing the success or failure of NSAs activities. In
support of this contention, they have submitted affidavits from Joseph J. Brand, Associate
Director, Community Integration, Policy and Records for the NSA; J. Michael McConnell,
Director of National Intelligence; and David M. Hardy, Section Chief of the
Record/Information Dissemination Section, Records Management Division, Federal Bureau of
Investigation.
In his affidavit, Brand avers that the TSP is a SIGINT program that [is] critical to the
national security of the United States. Operation of the TSP depends upon the collection of
electronic communications, which can be easily compromised if targets are made aware of NSA
capabilities and priorities. Giving the Glomar Response to FOIA Request No. 1 was essential,
Brand attests, because
[a]cknowledging the existence or non existence of those individuals or organizations
subject to surveillance would provide our adversaries with critical information about the
capabilities and limitations of the NSA, such as the types of communications that may
be susceptible to NSA detection. Confirmation by NSA that a persons activities are
not of foreign intelligence interest or that NSA is unsuccessful in collecting foreign
intelligence information on their activities on a case-by-case basis would allow our
adversaries to accumulate information and draw conclusions about NSAs technical
capabilities, sources, and methods.
Similarly, McConnell states that [t]o confirm or deny whether someone is a target of
surveillance . . . would reveal to our adversaries that an individual may or may not be available
as a secure means for communicating or, more broadly, the methods being used to conduct
surveillance. The disclosure of such information would run afoul of Section 6 of the NSAA,
Brand contends, because it would reveal the sources of intelligence . . . and would tend to
reveal the methods by which such intelligence is collected . . . . Further, confirmation or
denial of this information would reveal the limitations of NSA SIGINT capabilities. Even the
disclosure of what appears to be the most innocuous information about the TSP poses a
19
threat to national security, McConnell avers, because it might permit our adversaries to piece
together sensitive information about how the Program operated, the capabilities, scope and
effectiveness of the Program and our current capability, which would be utilized by the enemy
to allow them to plan their terrorist activities more securely.
These affidavits demonstrate that the documents sought in FOIA Request No. 1 relate
to the organization or any function of the National Security Agency and seek information
with respect to the activities thereof, Pub. L. No. 86-36, 6, 73 Stat. 63, 64, codified at 50
U.S.C. 402, all of which are exempted from disclosure by Section 6 of the NSAA. The
affidavits aver that the TSP is a SIGINT program, and signals intelligence is one of [NSAs]
primary functions; the release of the SIGINT information would disclose information with
respect to [NSA] activities, since any information about an intercepted communication
concerns an NSA activity. Hayden, 608 F.2d at 1389. Moreover, the affidavits explain in
detailed, nonconclusory fashion, Wood v. FBI, 432 F.3d 78, 85 (2d Cir. 2005), why the Glomar
Response is appropriate. The affidavits thus giv[e] reasonably detailed explanations why any
withheld documents fall within an exemption, and are therefore sufficient to sustain the
agencys burden. Carney, 19 F.3d at 812.
Wilner, 2008 WL 2567765, at *4-5.
2. NSAs Burden of Proof Under Section 6 of the NSAA Generally
An agency invoking Glomar must show not only that the requested records would be exempt
from disclosure, but also that the FOIA exemption would itself preclude the acknowledgment [even
confirming or denying the existence] of such documents. Minier, 88 F.3d at 800. Congresss broad
language in section 6 of the NSAA eases that burden for the agency, as it exempts from disclosure any
information with respect to the activities of that agency. Pub. L. No. 86-36, 6. Confirming or
denying the mere existence of specific records in a general surveillance program would logically be both
confirming or denying that the NSA was targeting a specific individual and confirming or denying that
the NSA is conducting a general surveillance program. Either disclosure would be information with
respect to the activities of the NSA and therefore exempt under FOIA. Id. Even if the NSA
affidavits, standing alone, are insufficient, as plaintiffs argue, the very nature of their requestwhich
seeks records concerning whether their communications were monitored by the NSAestablishes that
20
any response would reveal information with respect to the activities of the NSA. Because the NSA is
exempt under the NSAA from revealing such information, FOIA Exemption 3 also applies and the
NSAs Glomar response was therefore justified.
3. Bad Faith Invocation of the Glo m ar Doctrine
Having concluded that the affidavits more than sufficiently support the NSAs claim that FOIA
Exemption 3 encompasses confirmation or denial of the existence of the requested records, we now
consider plaintiffs claims that the NSA invoked the Glomar doctrine for the purpose of concealing
illegal or unconstitutional actions. We cannot base our judgment on mere speculation that the NSA
was attempting to conceal the purported illegality of the TSP by providing a Glomar response to
plaintiffs requests. A finding of bad faith must be grounded in evidence suggesting bad faith on the
part of the [agency]. Larson, 565 F.3d at 864. Ultimately, an agencys justification for invoking a
FOIA exemption is sufficient if it appears logical or plausible. Id. at 862 (internal quotation marks
omitted). After reviewing the record before us, we agree with the District Court that the agencys
affidavits and justification are both logical and plausible. We do not find any evidence that even
arguably suggests bad faith on the part of the NSA, or that the NSA provided a Glomar response to
plaintiffs requests for the purpose of concealing illegal or unconstitutional actions.
III. Ex Parte , In Cam e ra Review of Responsive Records, If Any Exist
Plaintiffs argue that, even if the government cannot publicly produce any responsive records, a
court presented with a Glomar response should conduct ex parte and in camera review of any records
(assuming they exist) to provide a more probing judicial review. We disagree. A court should only
consider information ex parte and in camera that the agency is unable to make public if questions remain
after the relevant issues have been identified by the agencys public affidavits and have been tested by
plaintiffs. See Phillippi, 546 F.2d at 1013.

21
We are mindful of our legal systems preference for open court proceedings, see, e.g., Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 571 (1980); see also In re N.Y. Times Co., 577 F.3d 401, 410 n.4
(2d Cir. 2009) (noting that although there are circumstances in which a nonpublic proceeding is
appropriate, courts seek to balance the need for transparency in the judiciary with the effective
protection of sensitive information), and there is no compelling reason in this case to deviate from this
general practice by conducting or requiring an ex parte, in camera review of any classified materials the
agency might present in justification of its response. We join our sister Circuit in holding that, [i]f an
agencys statements supporting exemption contain reasonable specificity of detail as to demonstrate
that the withheld information logically falls within the claimed exemption and evidence in the record
does not suggest otherwise . . . the court should not conduct a more detailed inquiry to test the agencys
judgment and expertise or to evaluate whether the court agrees with the agencys opinions. Larson,
565 F.3d at 865.
When, as here, a court finds that the governments public affidavits sufficiently allege the
necessity of a Glomar response, ex parte and in camera review of additional, confidential material is
unnecessary and beyond the role assigned to the judiciary by applicable law. [W]e have consistently
deferred to executive affidavits predicting harm to the national security, and have found it unwise to
undertake searching judicial review. Ctr. for Natl Sec. Studies, 331 F.3d at 927. We affirm our
deferential posture in FOIA cases regarding the uniquely executive purview of national security.
Larson, 565 F.3d at 865 (internal quotation marks omitted). Recognizing the relative competencies of
the executive and judiciary, we believe that it is bad law and bad policy to second-guess the predictive
judgments made by the governments intelligence agencies, id. (internal quotation marks omitted),
regarding questions such as whether disclosure of terrorist-related surveillance records would pose a
threat to national security.
22
In any event, a searching review of the kind suggested by plaintiffs would not provide
plaintiffs with the information they seekknowledge of whether they were or are being surveilled in
their interactions with their detainee clients. Plaintiffs claim that the purpose of gaining this
information is to determine whether or not to alter the way in which they represent and interact with
their clients. Appellants Br. 9; Tr. 4-5. Whether the NSA asserts in public affidavits, or whether the
court finds in camera, that the NSAs Glomar response was indeed sufficient (as it invariably would do,
given the breadth of the NSAA), plaintiffs in the end would have the same answerneither
confirmation nor denial of whether any responsive records exist. We conclude that the governments
affidavits were sufficiently specific in this case and we therefore decline plaintiffs invitation to conduct
an ex parte, in camera review of any classified material of the agency providing further justification for
failing to confirm or deny the existence of any records pertaining to plaintiff attorneys communications
with their detainee clients.
IV. Legality of the Underlying Terrorist Surveillance Program
Finally, plaintiffs argue that the Glomar doctrine may not be invoked to conceal illegal or
unconstitutional activities. As we have stated, we are unaware of any evidence that the NSA invoked
the Glomar doctrine in order to conceal illegal or unconstitutional activities; nor do we have reason to
believe that the NSA was acting in bad faith in providing a Glomar response. See Minier, 88 F.3d at 800.
In their briefs, plaintiffs contend the NSAs refusal to disclose whether it obtained any records
under the TSP related to plaintiffs is unlawful because any such records, if they exist, would have been
obtained in violation of the U.S. Constitution. Specifically, plaintiffs argue that (1) the warrantless
interception of plaintiff lawyers communications violates the First, Fourth, and Fifth Amendments, (2)
the threat of monitoring attorney-client conversations violates the constitutional rights of the detainees,
and (3) warrantless surveillance violates the separation of powers. Defendants respond that the legality
23
of the TSP is a separate matter from a FOIA challenge,8 Appellees Br. 32-36; Tr. 11, a point that
plaintiffs conceded at oral argument, Tr. 23 (And again, we are not asking this Court to reach the
question of [the merits of the argument that the TSP is illegal]. We dont think thats necessary here.).
We agree with counsel for all parties that we need not reach the legality of the underlying
Terrorist Surveillance Program because that question is beyond the scope of this FOIA action. In
declining to address the legality of the program in the context of suits seeking disclosure of secret
records, we are not alone; several of our sister Circuits have entertained TSP-related cases and have
declined to reach the merits of the TSP itself. See, e.g., Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d
1190, 1205 (9th Cir. 2007); ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007) (dismissing the case because
plaintiffs could not establish their standing to sue without obtaining classified information, the
disclosure of which would jeopardize national security); cf. United States. v. Abu Ali, 528 F.3d 210, 257-
58 (4th Cir. 2008) (not reaching the issue of the legality of the TSP in the context of a criminal
challenge to warrantless surveillance under the program).
CONCLUSION
We affirm the judgment of the District Court and hold that: (1) a Glomar response is available
to agencies as a valid response to FOIA requests; (2) an agency may issue a Glomar response to FOIA
requests seeking information obtained under a publicly acknowledged intelligence program such as
8
The legality of the TSP was challenged in a separate litigation in the United States District
Court for the District of Oregon (the District Court certified a portion of the litigation for appeal to
the Ninth Circuit but, as noted hereafter, the Court of Appeals found that the plaintiff lacked
standing to challenge the TSP), in which the government asserted the state-secrets privilege. Al-
Haramain Islamic Found., Inc. v. Bush, 451 F. Supp. 2d 1215 (D. Or. 2006). There is also litigation
pending in the Northern District of California which consolidates a number of TSP-related cases. In
re NSA Telecomm. Records Litig., MDL No. 06-1791 (N.D. Cal). At oral argument in this case, counsel
for the government stated its intention, with respect to those issues, to continue to assert the state-
secrets privilege.
24
the Terrorist Surveillance Program at least when the existence of such information has not already been
publicly disclosed; (3) the NSA properly invoked the Glomar doctrine in response to plaintiffs request
for information pursuant to FOIA Exemption 3; (4) the governments affidavits sufficiently allege the
necessity of a Glomar response in this case, making it unnecessary for us to review, or to require the
District Court to review, ex parte and in camera any classified affidavits that the NSA might provide to
support its Glomar response; and (5) there is no evidence in this record that suggests, much less shows,
that the NSA invoked Glomar for the purpose of concealing activities that violate the Constitution or
are otherwise illegal. We agree with counsel for all parties that we need not reach the legality of the
underlying Terrorist Surveillance Program because that question is beyond the scope of this FOIA
action.
Accordingly, the judgment of the District Court is AFFIRMED.
25
DOCUMENT DIVIDER
CaseCASE
A LANDMARK 1:16-cv-02517 Document
OF OBSTRUCTION 1 Filed
OF JUSTICE, 12/26/16
CIVIL RIGHTS,Page 1 of 6
AND INTELLECTUAL PROPERTY

FOR THE DISTRICT OF COLUMBIA
JASON LEOPOLD, and )

RYAN NOAH SHAPIRO )
c/o Law Office of Jeffrey L. Light ) Judge _____________
1712 Eye St., NW, Suite 915 ) Civil Action No. ____________
Washington, DC 20006, )
)
)
PLAINTIFFS )
vs. )
)
OFFICE OF THE DIRECTOR OF )
NATIONAL INTELLIGENCE, )
)
DEPARTMENT OF JUSTICE, )
950 Pennsylvania Ave., NW )
)
)
CENTRAL INTELLIGENCE AGENCY, )
)
DEPARTMENT OF HOMELAND )
SECURITY, )
245 Murray Ln., SW )
)
)
)
DEFENDANTS )
)
COMPLAINT
THE PARTIES
1. Plaintiff Jason Leopold is an investigative reporter covering a wide-range of
issues, including Guantanamo, national security, counterterrorism, civil liberties, human rights,
and open government. His reporting has been published in VICE News, The Guardian, The Wall
CaseCASE
Street Journal, The Financial Times, Salon, CBS Marketwatch, The Los Angeles Times, The
Nation, Truthout, Al Jazeera English, and Al Jazeera America.
2. Plaintiff Ryan Noah Shapiro is a Ph.D. candidate in the Department of Science,
Technology, and Society (HASTS) at the Massachusetts Institute of Technology, as well as a
Research Affiliate at the Berkman Klein Center for Internet & Society at Harvard University.
Plaintiff is an historian of national security, the policing of dissent, and governmental
transparency.
3. Defendant Department of Justice (DOJ) is an agency of the United States.
4. The Federal Bureau of Investigation (FBI) is a component of Defendant DOJ.
5. The FBI has possession, custody and control of the records Plaintiffs seeks.
6. Defendant Central Intelligence Agency (CIA) is an agency of the United States.
7. The CIA has possession, custody and control of the records Plaintiffs seeks.
8. Defendant Office of the Director of National Intelligence (ODNI) is an agency of
the United States.
9. ODNI has possession, custody and control of the records Plaintiffs seeks.
10. Defendant Department of Homeland Security (DHS) is an agency of the United
States.
11. The Office of Intelligence & Analysis (I&A) is a component of Defendant DHS.
12. I&A has possession, custody and control of the records Plaintiffs seeks.
JURISDICTION AND VENUE
13. This action arises under the Freedom of Information Act (FOIA), 5 USC 552.
14. This Court has jurisdiction over the parties and subject matter pursuant to 5 USC
552(a)(4)(B).
15. Venue is proper in this district pursuant to 5 USC 552(a)(4)(B).
CaseCASE
STATEMENT OF FACTS
16. On December 14, 2016, Plaintiffs submitted FOIA requests to the FBI, CIA,
ODNI, and DHS I&A via fax for several categories of records, including, inter alia:1
Communications to or from members of the Electoral College and records mentioning or

referring to a request by members of the Electoral College to receive information and
briefing as to any ongoing investigations into ties between Donald Trump, his campaign
or associates, and Russian government interference in the election, the scope of those
investigations, how far those investigations may have reached, and who was involved in
those investigations.
Communications to or from Congress or to or from the Democratic National Committee
(DNC), the Democratic Congressional Campaign Committee (DCCC), the Democratic
Senatorial Campaign Committee (DSCC), the Republican National Committee (RNC),
the National Republic Congressional Committee (NRCC), the National Republican
Senatorial Committee (NRSC), the Trump campaign, the Clinton campaign, or any other
U.S. political organization mentioning or referring to Russian-directed interference with
the United States 2016 elections
Communications to or from Congress or to or from other intelligence agencies
mentioning or referring to:
a. Crowd Strike
b. FireEye
c. APT (Advanced Persistent Threat)
d. Fancy Bear (also known as Sofacy or APT 28)
e. Cozy Bear (also known as CozyDuke or APT 29)
f. Guccifer 2.0
g. Guccifer20@aol.fr
h. DCLeaks
i. (Felix Edmundovich Dzerzhinsky)
j. Yandex
k. The IP address 95.130.15.34
l. The IP address 208.76.52.163
m. Elite VPN
n. The Smoking Gun
o. the actual or alleged compromise or attempt to compromise, or any scanning or
probing of: any email account of John Podesta; the iCloud account of John
Podesta; any other account of John Podesta; any computer, electronic device,
network, or other system of the Democratic National Committee (DNC), the
Democratic Congressional Campaign Committee (DCCC), the Democratic
1
The summary descriptions of Plaintiffs FOIA requests in this Complaint are provided only to
assist the reader in understanding the nature of the request. The language in the original FOIA
requests is controlling.
3
CaseCASE
Senatorial Campaign Committee (DSCC), the Republican National Committee

(RNC), the National Republic Congressional Committee (NRCC), the National
Republican Senatorial Committee (NRSC), the Trump campaign, or the Clinton
campaign; any computer, electronic device, network, or other system of any other
U.S. political organization; any email account of Hillary Clinton; any other
account of Hillary Clinton; any server or other computer of Hillary Clinton; any
Blackberry or other device of Hillary Clinton; any other computer, electronic
device, network, or other system of Hillary Clinton; any email account of Billy
Rinehart, Jr.; any other account of Billy Rinehart, Jr.; any email account of Sarah
Hamilton; any other account of Sarah Hamilton; any email account of Luis
Miranda; any other account of Luis Miranda; any email account of Jordan Kaplan;
any other account of Jordan Kaplan; or any voting machine
Talking points, whether in draft or final form, mentioning or referring to allegations of
Russian-directed interference with the United States 2016 elections and/or the actual or
alleged compromise or attempt to compromise, or any scanning or probing of: any email
account of John Podesta; the iCloud account of John Podesta; any other account of John
Podesta; any computer, electronic device, network, or other system of the Democratic
National Committee (DNC), the Democratic Congressional Campaign Committee
(DCCC), the Democratic Senatorial Campaign Committee (DSCC), the Republican
National Committee (RNC), the National Republic Congressional Committee (NRCC),
the National Republican Senatorial Committee (NRSC), the Trump campaign, or the
Clinton campaign; any computer, electronic device, network, or other system of any other
U.S. political organization; any email account of Hillary Clinton; any other account of
Hillary Clinton; any server or other computer of Hillary Clinton; any Blackberry or other
device of Hillary Clinton; any other computer, electronic device, network, or other
system of Hillary Clinton; any email account of Billy Rinehart, Jr.; any other account of
Billy Rinehart, Jr.; any email account of Sarah Hamilton; any other account of Sarah
Hamilton; any email account of Luis Miranda; any other account of Luis Miranda; any
email account of Jordan Kaplan; any other account of Jordan Kaplan; or any voting
machine
Internal newsletters, magazines, or other internal publications whether in draft or final
form, mentioning or referring to allegations of Russian-directed interference with the
United States 2016 elections
Agency-wide emails mentioning or referring to the agencys actions or position with
respect to allegations of Russian-directed interference with the United States 2016
elections
17. The request to the FBI also sought communications from Director Comey to the
White House about whether the Obama Administration should publicly accuse Russia of hacking
U.S. political organizations.
18. Each of the requests sought expedited processing.
CaseCASE
19. As of the filing of this Complaint, Plaintiffs have not received a response from the
FBI, CIA, ODNI, or DHS I&A as to whether or not their request for expedited processing will be
granted.
20. On December 15, 2016, Plaintiffs submitted a FOIA request to the CIA via fax
for:
White papers, intelligence assessments, memoranda, and/or reports mentioning or

referring to any and all actual or alleged Russian-directed interference or attempted
interference in 2016 U.S. elections.
Other records mentioning or referring to any and all white papers, intelligence
assessments, memoranda, and/or reports mentioning or referring to any and all actual or
alleged Russian-directed interference or attempted interference in 2016 U.S. elections.
Talking points (in draft or final form), as well as any and all guidance or other
instructional records, issued to the CIAs Office of Public Affairs mentioning or referring
to any and all white papers, intelligence assessments, memoranda, and/or reports
mentioning or referring to any and all actual or alleged Russian-directed interference or
attempted interference in 2016 U.S. elections.
21. This request also sought expedited processing.
22. As of the filing of this Complaint, Plaintiffs have not received a response from the
CIA as to whether or not their request for expedited processing will be granted.
COUNT I:
VIOLATION OF FOIA
23. This Count realleges and incorporates by reference all of the preceding
paragraphs. All documents referenced in this Complaint are incorporated by reference as if set
forth fully herein.
24. Defendants have failed to grant or even rule on Plaintiffs request for expedited
processing.
CaseCASE
25. Plaintiffs are deemed to have exhausted their administrative remedies because
over 10 calendar days have elapsed without a determination as to whether or not they are entitled
to expedited processing.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that this Court:
(1) Declare Defendants failure to comply with FOIA to be unlawful;
(2) Order Defendants to immediately process Plaintiffs FOIA requests;
(3) Grant Plaintiffs an award of attorney fees and other litigation costs reasonably incurred in
this action pursuant to 5 USC 552(a)(4)(E)(i);
(4) Grant Plaintiffs such other and further relief which the Court deems proper.
Respectfully Submitted,
__/s/ Jeffrey Light_______________

Jeffrey L. Light
D.C. Bar #485360
1712 Eye St., NW
Suite 915
(202)277-6213
Jeffrey@LawOfficeOfJeffreyLight.com
Counsel for Plaintiffs
DOCUMENT DIVIDER

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AMERICAN CIVIL LIBERTIES UNION; AMERICAN

CIVIL LIBERTIES UNION FOUNDATION;
AMERICAN CIVIL LIBERTIES UNION OF COMPLAINT FOR
MICHIGAN; COUNCIL ON AMERICAN-ISLAMIC DECLARATORY
RELATIONS; COUNCIL ON AMERICAN-ISLAMIC AND INJUNCTIVE
RELATIONS MICHIGAN; GREENPEACE, INC.; RELIEF
NATIONAL ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS; JAMES BAMFORD; LARRY
DIAMOND; CHRISTOPHER HITCHENS; TARA Case No.
MCKELVEY; and BARNETT R. RUBIN,
Hon.
Plaintiffs,
v.
NATIONAL SECURITY AGENCY / CENTRAL

SECURITY SERVICE; and LIEUTENANT
GENERAL KEITH B. ALEXANDER, in his official
capacity as Director of the National Security Agency
and Chief of the Central Security Service,
Defendants.
ANN BEESON
Attorney of Record
JAMEEL JAFFER
MELISSA GOODMAN (admission pending)
CATHERINE CRUMP (admission pending)
National Legal Department
125 Broad Street, 18th Floor
New York, NY 10004-2400
(212) 549-2500
MICHAEL J. STEINBERG
KARY L. MOSS
American Civil Liberties Union Fund of Michigan
60 West Hancock Street
Detroit, MI 48201-1343
(313) 578-6814
PRELIMINARY STATEMENT
1. This lawsuit challenges the constitutionality of a secret government
program to intercept vast quantities of the international telephone and Internet
communications of innocent Americans without court approval (hereinafter the
Program). The National Security Agency / Central Security Service (NSA) launched
the Program in 2001 and the President of the United States ratified it in 2002.
2. Plaintiffs are a group of prominent journalists, scholars, attorneys, and
national nonprofit organizations who frequently communicate by telephone and email
with people outside the United States, including in the Middle East and Asia. Because of
the nature of their calls and emails, and the identities and locations of those with whom
they communicate, plaintiffs have a well-founded belief that their communications are
being intercepted under the Program. The Program is disrupting the ability of the
plaintiffs to talk with sources, locate witnesses, conduct scholarship, and engage in
advocacy.
3. By seriously compromising the free speech and privacy rights of the
plaintiffs and others, the Program violates the First and Fourth Amendments of the
United States Constitution. It also violates constitutional separation of powers principles,
because it was authorized by President George W. Bush in excess of his Executive
authority and contrary to limits imposed by Congress. In response to widespread
domestic surveillance abuses committed by the Executive Branch and exposed in the
1960s and 1970s, Congress enacted legislation that provides the exclusive means by
which electronic surveillance . . . and the interception of domestic wire, oral, and
electronic communications may be conducted. 18 U.S.C. 2511(2)(f) (emphasis
2
added). Plaintiffs respectfully seek a declaration that the Program is unlawful, and a
permanent injunction against its use.
JURISDICTION AND VENUE
4. This case arises under the United States Constitution and the laws of the
United States and presents a federal question within this Courts jurisdiction under
Article III of the United States Constitution and 28 U.S.C. 1331. The Court also has
jurisdiction under the Administrative Procedures Act, 5 U.S.C. 702. The Court has
authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C.
2201 et seq. The Court has authority to award costs and attorneys fees under 28
U.S.C. 2412. Venue is proper in this district under 28 U.S.C. 1391(e).
PARTIES
5. The American Civil Liberties Union (ACLU) is a 501(c)(4) non-
profit, non-partisan organization that engages in public education and lobbying about the
constitutional principles of liberty and equality. The ACLU has more than 500,000
members and has members in every state, including Michigan. The ACLU sues on its
own behalf and on behalf of its staff and members.
6. The American Civil Liberties Union Foundation (ACLUF) is a
501(c)(3) organization that educates the public about civil liberties issues and employs
lawyers who provide legal representation free of charge in cases involving civil liberties.
The ACLUF sues on its own behalf and on behalf of its staff.
7. The American Civil Liberties Union of Michigan (ACLU of
Michigan) is a 501(c)(4) non-profit, non-partisan organization that engages in public
education and lobbying about civil rights and civil liberties in the state of Michigan. The
3
ACLU of Michigan has approximately 15,000 members. The ACLU of Michigan sues
on its own behalf of on behalf of its members.
8. The National Association of Criminal Defense Lawyers (NACDL) is
a 501(c)(6) non-profit organization based in Washington, D.C. whose direct membership
is comprised of more than 13,000 criminal defense lawyers. The NACDL has members
in every state, including Michigan. The NACDL sues on its own behalf and on behalf of
its members.
9. The Council on American-Islamic Relations (CAIR) is a 501(c)(4)
non-profit organization based in Washington, D.C. and is the largest Islamic civil
liberties organization in the United States. CAIR has chapters and members nationwide
and members in over 25 countries. CAIR sues on its own behalf and on behalf of its staff
and members.
10. The Council on American-Islamic Relations Michigan (CAIR-
Michigan) is a 501(c)(3) organization and represents the interest of the American
Muslim community living in the state of Michigan. CAIR-Michigan sues on its own
behalf and on behalf of its members.
11. Greenpeace, Inc. (Greenpeace) is a non-profit advocacy organization
based in Washington, D.C. dedicated to combating the most serious threats to the planets
biodiversity and environment. Greenpeace has approximately 250,000 members
nationwide, including members in Michigan. Internationally, Greenpeace has a presence
in 39 other countries and more than 2.5 million members. Greenpeace sues on its own
behalf, and on behalf of its staff and members.
4
12. James Bamford is an award-winning author and journalist. He is one of
the worlds leading experts on U.S. intelligence and the National Security Agency and he
has published numerous books and articles on those topics. Mr. Bamford lives in
Washington, D.C.
13. Larry Diamond is a Senior Fellow at the Hoover Institution at Stanford
University. He is a leading expert on governance and development in Iraq, Asia, Africa
and Latin America. Professor Diamond lives in Stanford, California.
14. Christopher Hitchens is a prominent reporter and bestselling author who
has written numerous articles and books on topics including U.S policy in the Middle
East and Islamic fundamentalism. Mr. Hitchens lives in Washington, D.C.
15. Tara McKelvey is a senior editor at The American Prospect, and has
written numerous articles and books on topics including U.S. policy in the Middle East.
Ms. McKelvey lives in Washington, D.C.
16. Barnett R. Rubin is Director of Studies and Senior Fellow at the New
York University Center on International Cooperation. Professor Rubin is an
internationally renowned scholar on conflict and peace, with a particular focus on
Afghanistan, South Asia, and Central Asia, and has written numerous books and articles
about Afghan history, politics, and development. Professor Rubin lives in New York.
17. Defendant National Security Agency / Central Security Service
(NSA) is the agency of the United States government responsible for administering the
warrantless surveillance program challenged in this case.
5
18. Defendant Lieutenant General Keith B. Alexander is the Director of the
NSA. Defendant Lieutenant General Alexander has ultimate authority for supervising
and implementing all operations and functions of the NSA.
LEGAL FRAMEWORK
19. The First Amendment provides in relevant part that Congress shall
make no law . . . abridging the freedom of speech, or of the press.
20. The Fourth Amendment provides that [t]he 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.
21. Congress has enacted two statutes that together supply the exclusive
means by which electronic surveillance . . . and the interception of domestic wire, oral,
and electronic communications may be conducted. 18 U.S.C. 2511(2)(f) (emphasis
added). The first is Title III of the Omnibus Crime Control and Safe Streets Act of 1968
(Title III), 18 U.S.C. 2510 et seq., and the second is the Foreign Intelligence
Surveillance Act, 50 U.S.C. 1801 et seq. (FISA).
Title III
22. Congress enacted Title III in response to the U.S. Supreme Courts
recognition, in Katz v. United States, 389 U.S. 347 (1967), that individuals have a
constitutionally protected privacy interest in the content of their telephone calls. Through
Title III, Congress created a statutory framework to govern the surveillance of wire and
oral communications in law enforcement investigations.
6
23. In its current form, Title III authorizes the government to intercept wire,
oral, or electronic communications in investigations of certain enumerated criminal
offenses, see 18 U.S.C. 2516, with prior judicial approval, see id. 2518. In order to
obtain a court order authorizing the interception of a wire, oral, or electronic
communication, the government must demonstrate probable cause for belief that an
individual is committing, has committed, or is about to commit one of the enumerated
criminal offenses. Id. 2518(3)(a). It must also demonstrate, among other things,
probable cause for belief that particular communications concerning [the enumerated]
offense will be obtained through [the] interception, id. 2518(3)(b), and that normal
investigative procedures have been tried and have failed or reasonably appear to be
unlikely to succeed if tried or to be too dangerous, id. 2518(3)(c).
24. Every court order authorizing surveillance under Title III must include a
provision requiring that the interception be conducted in a such a way as to minimize the
interception of communications not otherwise subject to interception under this chapter.
Id. 2518(5).
25. While Title III generally permits surveillance only with prior judicial
authorization, the statute includes a provision that allows for warrantless surveillance in
emergency situation[s] where, for example, a situation exists that involves . . .
immediate danger of death or serious physical injury to any person. Id. 2518(7)(a).
Where an emergency situation exists and there are grounds upon which an order could
be entered . . . to authorize . . . interception, the statute permits specified executive
officials to authorize warrantless surveillance if an application for an order approving
7
the interception is made in accordance with this section within forty-eight hours after the
interception has occurred, or begins to occur. Id. 2518(7)(b).
26. Title III specifies civil and criminal penalties for surveillance that is not
authorized. See id. 2511 & 2520.
27. As originally enacted, Title III provided that [n]othing contained in
this chapter. . . shall limit the constitutional power of the President to take such measures
as he deems necessary to protect the Nation against actual or potential attack or other
hostile acts of a foreign power, to obtain foreign intelligence information deemed
essential to the security of the United States, or to protect national security information
against foreign intelligence activities. Nor shall anything contained in this chapter be
deemed to limit the constitutional power of the President to take such measures as he
deems necessary to protect the United States against the overthrow of the Government by
force or other unlawful means, or against any other clear and present danger to the
structure or existence of the Government. See 18. U.S.C. 2511(3) (1976). As
discussed below, Congress repealed this provision in 1978.
Foreign Intelligence Surveillance Act
28. In 1978, Congress enacted FISA to govern the use of electronic
surveillance against foreign powers and their agents inside the United States. The statute
created the Foreign Intelligence Surveillance Court, a court composed of seven (now
eleven) federal district court judges, and empowered this court to grant or deny
government applications for electronic surveillance orders in foreign intelligence
investigations. See 50 U.S.C. 1803(a).
8
29. Congress enacted FISA after the U.S. Supreme Court held, in United
States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297
(1972), that the Fourth Amendment does not permit warrantless surveillance in
intelligence investigations of domestic security threats. FISA was a response to that
decision and to the Report of the Senate Select Committee to Study Government
Operations with Respect to Intelligence Activities, S.Rep. No. 94-755, 94th Cong., 2d
Sess. (1976) (Church Committee Report), which found that the executive had engaged
in warrantless wiretapping of numerous United States citizens including journalists,
activists, and Congressmen who posed no threat to the nations security and who were
not suspected of any criminal offense. The Church Committee Report warned that
[u]nless new and tighter controls are established by legislation, domestic intelligence
activities threaten to undermine our democratic society and fundamentally alter its
nature.
30. When Congress enacted FISA, it amended Title III to provide that the
procedures set out therein and in FISA shall be the exclusive means by which electronic
surveillance . . . and the interception of domestic wire, oral, and electronic
communications may be conducted. 18 U.S.C. 2511(2)(f) (emphasis added). FISA
provides that no one may engage in electronic surveillance except as authorized by
statute, id. 1809(a)(1), and it specifies civil and criminal penalties for electronic
surveillance undertaken without statutory authority, see id. 1809 & 1810. The Senate
Judiciary Committee explained that [t]he basis for this legislation is the understanding
concurred in by the Attorney General that even if the President has an inherent
Constitutional power to authorize warrantless surveillance for foreign intelligence
9
purposes, Congress has the power to regulate the exercise of this authority by legislating
a reasonable warrant procedure governing foreign intelligence surveillance. S. Rep. 95-
604(I), reprinted at 1978 U.S.C.C.A.N. at 3917. The Committee further explained that
the legislation was meant to spell out that the executive cannot engage in electronic
surveillance within the United States without a prior Judicial warrant. Id. at 3906.
31. FISA defines electronic surveillance broadly to include:
a. the acquisition by an electronic, mechanical, or other surveillance
device of the contents of any wire or radio communication sent by or
intended to be received by a particular, known United States person
who is in the United States, if the contents are acquired by
intentionally targeting that United States person, under circumstances
in which a person has a reasonable expectation of privacy and a
warrant would be required for law enforcement purposes;
b. the acquisition by an electronic, mechanical, or other surveillance
device of the contents of any wire communication to or from a person
in the United States, without the consent of any party thereto, if such
acquisition occurs in the United States . . .;
c. the intentional acquisition by an electronic, mechanical, or other
surveillance device of the contents of any radio communication, under
circumstances in which a person has a reasonable expectation of
privacy and a warrant would be required for law enforcement
purposes, and if both the sender and all intended recipients are located
within the United States; and
10
d. the installation or use of an electronic, mechanical, or other
surveillance device in the United States for monitoring to acquire
information, other than from a wire or radio communication, 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. 1801(f).
32. FISA defines contents to include any information concerning the
identity of the parties to such communication or the existence, substance, purport, or
meaning of that communication. 50 U.S.C. 1801(n). It defines United States person
to include United States citizens and lawful permanent residents. Id. 1801(d).
33. In order to obtain an order from the FISA Court authorizing electronic
surveillance, the government must demonstrate, among other things, probable cause to
believe that the target of the electronic surveillance is a foreign power or an agent of a
foreign power and that each of the facilities or places at which the electronic
surveillance is directed is being used, or is about to be used, by a foreign power or an
agent of a foreign power. Id. 1805(a)(3).
34. While FISA generally prohibits surveillance without prior judicial
authorization, it, like Title III, includes a provision that allows for warrantless
surveillance in emergency situation[s]. Id. 1805(f). Where an emergency situation
exists and the factual basis for issuance of an order under this subchapter to approve
such surveillance exists, the statute permits the Attorney General to authorize
warrantless surveillance if a judge having jurisdiction under section 1803 of this title is
informed by the Attorney General or his designee at the time of such authorization that
11
the decision has been made to employ emergency electronic surveillance and if an
application in accordance with this subchapter is made to that judge as soon as
practicable, but not more than 72 hours after the Attorney General authorizes such
surveillance. Id.
35. FISA also allows the Attorney General to authorize electronic
surveillance without a court order for up to one year if the Attorney General certifies in
writing under oath that the electronic surveillance is directed solely at the property or
means of communication used exclusively by a foreign power, that there is no
substantial likelihood that the surveillance will acquire the contents of any
communication to which a United States person is a party, and that there are
minimization procedures in place. Id. 1802.
36. Finally, FISA permits electronic surveillance without a court order for
fifteen days after a formal declaration of war. Id. 1811 (Notwithstanding any other
law, the President, through the Attorney General, may authorize electronic surveillance
without a court order under this subchapter to acquire foreign intelligence information for
a period not to exceed fifteen calendar days following a declaration of war by the
Congress.).
37. FISA requires the Attorney General to report to the House and Senate
Intelligence Committees twice a year regarding all electronic surveillance authorized
under FISA. Id. 1808(a). Statistics released annually by the Justice Department
indicate that, between 1978 and 2004, the government submitted almost 19,000
surveillance applications to the FISA Court. The FISC denied four of these applications;
12
granted approximately 180 applications with modifications; and granted the remainder
without modifications.
FACTUAL BACKGROUND
The Program
38. According to published news reports, in the fall of 2001 the NSA
launched a secret surveillance program (the Program) to intercept, without prior
judicial authorization, the telephone and Internet communications of people inside the
United States. President Bush ratified the Program in 2002. Since then, the President has
reauthorized the Program more than 30 times.
39. Under the Program, the NSA engages in electronic surveillance as
defined by FISA and Title III.
40. Under the Program, the NSA intercepts vast quantities of the
international telephone and Internet communications (hereinafter collectively
communications) of people inside the United States, including citizens and lawful
permanent residents.
41. Under the Program, the NSA also intercepts some purely domestic
communications, that is, communications among people all of whom are inside the
United States.
42. Under the Program, the NSA intercepts the communications of people
inside the United States without probable cause to believe that the surveillance targets
have committed or are about to commit any crime.
13
inside the United States without probable cause to believe that the surveillance targets are
foreign powers or agents thereof.
inside the United States without obtaining authorization for each interception from the
President or the Attorney General.
45. Under the Program, NSA shift supervisors are authorized to approve
NSA employees requests to intercept the communications of people inside the United
States.
46. Under the Program, the NSA accesses communications in at least three
ways.
47. First, the NSA uses NSA-controlled satellite dishes to access
communications that are transmitted via satellite. Some of these NSA-controlled satellite
dishes are located within the United States.
48. Second, the NSA works with telecommunications companies to access
communications that pass through switches controlled by these companies. These
switches, which are located inside the United States, serve as primary gateways for
communications going into and out of the United States. The switches connect to trans-
oceanic fiber optic cables that transmit communications to other countries.
49. Third, the NSA works with Internet providers and telecommunications
companies to access communications transmitted over the Internet.
50. Under the Program, the NSA intercepts, retains, and analyzes
communications in at least three ways.
14
51. First, the NSA obtains names, telephone numbers and Internet addresses
from the cell phones, computers, and other information found in the possession of
persons deemed suspicious. The NSA intercepts the telephone numbers and Internet
addresses associated with these people, as well as numbers and emails associated with
anyone who communicates with them, and continues to identify additional telephone
numbers and Internet addresses in an expanding network of people with fewer and fewer
links to the original suspect. Through this method, the NSA intercepts the contents of the
communications of as many as a thousand people inside the United States at any one
time.
52. Second, the NSA intercepts communications to and from particular
countries, including Iraq and Afghanistan. The intercepted communications include calls
and emails between people inside the United States and people in those other countries.
53. Third, the NSA engages in wholesale datamining of domestic and
international communications. It uses artificial intelligence aids to search for keywords
and analyze patterns in millions of communications at any given time. One purpose of
this datamining is to identify individuals for targeted surveillance.
54. Under the Program, the NSA does not obtain judicial review before or
after intercepting the communications of people inside the United States.
55. The NSA has submitted information obtained through the Program to
the Foreign Intelligence Surveillance Court in order to support applications for
surveillance orders under FISA.
15
Plaintiffs Allegations
56. Plaintiffs and their staff and members (hereinafter plaintiffs) routinely
communicate by email and telephone with people outside the United States, including
people in the Middle East and Asia.
57. Some of the plaintiffs, in connection with scholarship, journalism, or
legal representation, communicate with people whom the United States government
believes or believed to be terrorist suspects or to be associated with terrorist
organizations.
58. Plaintiffs communicate about subjects that are likely to trigger scrutiny
by the NSA under the Program.
59. Some of the plaintiffs conduct research on the Internet concerning
topics that are likely to trigger scrutiny under the Program.
60. Because of the nature of plaintiffs communications and the identities
and locations of those with whom they communicate, plaintiffs have a well-founded
belief that their domestic and international communications are being intercepted by the
NSA under the Program.
61. The Program is substantially impairing plaintiffs ability to obtain
information from sources abroad, to locate witnesses, to represent their clients, to conduct
scholarship, and to engage in advocacy.
62. The Program is inhibiting the lawful, constitutionally protected
communications of plaintiffs and others not before the Court.
16
American Civil Liberties Union and American Civil Liberties Union Foundation
63. The ACLU is a 501(c)(4) non-profit, non-partisan organization that
engages in public education and lobbying about the constitutional principles of liberty
and equality. The ACLU has more than 500,000 members. The ACLUs activities
include lobbying Congress on legislation that affects civil liberties, analyzing and
educating the public about such legislation, and mobilizing ACLU members and activists
to lobby their legislators to protect civil rights and civil liberties.
64. The ACLUF is a 501(c)(3) organization that educates the public about
civil liberties and that employs lawyers who provide legal representation free of charge in
cases involving civil liberties.
65. Since September 11, a core priority of the ACLU and the ACLUF has
been to publicize and oppose violations of civil liberties effected in the name of national
security. This work frequently requires ACLU and ACLUF staff and members to
communicate by email and telephone with people and organizations outside the United
States. The international communications of ACLU and ACLUF staff and members
concern a range of subjects that are likely to trigger scrutiny under the Program.
66. For example, in November and December 2002, ACLU staff traveled to
Pakistan to interview men whom the Immigration and Naturalization Service had arrested
and held after the terrorist attacks of September 2001 as special interest detainees but
subsequently deported without having been charged with any terrorism related offense.
In preparation for this trip, ACLU staff communicated by telephone and email with
people and organizations in Pakistan and India. For example, Marsha Zeesman, the
ACLUs Director of Campaigns and Special Projects, and Emily Whitfield, the ACLUs
17
Media Relations Director, communicated by telephone and email on multiple occasions
with staff of the Human Rights Commission of Pakistan, an organization based in
Karachi. Whitfield also communicated by email with Ash-har Quraishi, Cable News
Networks correspondent in Pakistan; with Carlotta Gall, a New York Times
correspondent in Pakistan; and with David Rohde, a New York Times correspondent in
India. Some of the communications of ACLU staff concerned individuals whom the
Justice Departments website describes as linked to the September 11th investigation.
67. In January 2004, the ACLUF filed a petition with the United Nations
Working Group on Arbitrary Detention on behalf of some of the men whom the INS had
held as special interest detainees. The drafting of the petition required ACLUF
attorney Omar Jadwat and other ACLUF employees to communicate by telephone and
email with former detainees living in Pakistan, Egypt, and Jordan.
68. Since March 2005, ACLUF attorneys and staff have been investigating
instances in which the CIA has transferred rendered foreign nationals to detention
and interrogation in facilities operated by the CIA outside U.S sovereign territory and to
countries and intelligence services that are known to employ torture and other forms of
cruel, inhuman or degrading treatment. In connection with this research, ACLUF
attorneys and human rights advisors have communicated by telephone and email with
individuals whom the CIA has alleged are associated with terrorist organizations.
ACLUF attorneys and staff have also communicated by telephone and email with
attorneys representing these individuals.
69. ACLUF attorneys currently represent Khaled El-Masri, a German
citizen residing in Neu-Ulm, Germany, whom the CIA rendered to a CIA-run prison in
18
Afghanistan in January 2004. ACLUF human rights advisor Steven Watt regularly
communicates by telephone and email with Mr. El-Masri and with Mr. El-Masris
German attorney, Manfred Gnjidic. In addition, as part of the ACLUs research into the
extraordinary rendition program, Mr. Watt regularly communicates by telephone with
attorneys based in Sweden and Egypt representing Ahmed Agiza and Mohammed Alzery,
whom the CIA rendered from Sweden to Egyptian custody in December 2001, and with
the Italian attorney representing Abu Omar, whom the CIA rendered from Italy to
Egyptian custody in February 2003.
70. ACLUF attorneys also currently represent a number of individuals who
were detained and abused by United States forces at Abu Ghraib prison in Iraq and at
other detention facilities in Iraq and Afghanistan. ACLUF attorney Omar Jadwat and
ACLUF human rights advisor Jamil Dakwar regularly communicate by telephone and
email with individuals in Iraq and Afghanistan, including plaintiffs in the litigation,
concerning the treatment of prisoners held by United States forces in those countries.
Some of these communications concern individuals who remain in the custody of United
States forces.
71. Because of the content of their communications and the identities and
locations of individuals with whom they are communicating, ACLU and ACLUF staff
have a well-founded belief that their communications are being intercepted by the NSA
under the Program.
72. The Program substantially impairs the ability of the ACLU and ACLUF
to engage in communication that is vital to their respective missions. The Program
requires ACLU and ACLUF staff and members to minimize the sensitive information
19
they include in their communications because of the risk that such information will be
intercepted. In addition, ACLU and ACLUF staff and members believe that individuals
abroad are more reticent in communicating with them because of the possibility that their
communications are being intercepted by the NSA under the Program.
73. Attorneys at the ACLUF have represented to many of their clients that
their telephone and email communications with ACLUF attorneys are confidential and
covered by the attorney-client privilege. The willingness of ACLUF clients to consult
with ACLUF attorneys and to provide information to ACLUF attorneys is based in part
on that assurance. The Program is inhibiting candid communication between ACLUF
attorneys and their clients and is thereby compromising the ability of ACLUF attorneys
to effectively represent their clients.
American Civil Liberties Union of Michigan
74. The ACLU of Michigan is the Michigan affiliate of the ACLU and is
dedicated to defending the civil liberties of Michigan residents. Its activities include
lobbying the Michigan legislature on proposed bills that affect civil liberties, educating
the Michigan public about such legislation and mobilizing ACLU of Michigan members
and activists to lobby their representatives to protect civil rights and civil liberties.
75. Since September 11, 2001, a core priority of the ACLU of Michigan has
been to publicize and oppose violations of civil liberties affected in the name of national
security. For example, the Michigan ACLU established a Safe and Free Project
devoted to post-9/11 civil liberties issues and hired a staff attorney for the project. It
opposed state legislation that it believed unnecessarily sacrificed civil liberties in the
name of national security. It mobilized its members to lobby local government bodies
20
across the state, resulting in the enactment of sixteen local resolutions opposing
provisions of the USA PATRIOT Act that pose the most serious threats to civil liberties.
The manner in which post-9/11 measures impact Arab-Americans is especially important
to the Michigan ACLU affiliate because southeast Michigan has the highest
concentration of Arab-Americans in the country.
76. The ACLU of Michigan has many members who regularly
communicate with people outside the United States, including in the Middle East and
Asia. Because of the nature of these communications, the identities of the individuals
with whom they communicate, and the locations of individuals with whom they
communicate, ACLU of Michigan members have a well-founded belief that their
communications are being intercepted by the NSA under the Program. The Program is
inhibiting ACLU of Michigan members from communicating freely and candidly in their
personal and professional communications.
Noel Saleh
77. Noel Saleh is a member of the ACLU of Michigan who resides in
Wayne County, Michigan. He is a United States citizen. He is a licensed attorney in the
State of Michigan and served as the staff attorney for the American Civil Liberties Union
of Michigans Safe and Free Project from 2002 to 2004.
78. Mr. Saleh has been a community activist for Arab causes both in the
United States and in the Arab World. Since 1989 he has served on the board of
ACCESS, the Arab Community Center for Economic and Social Services. Currently, he
is the Chair of the ACCESS Board of Directors. As part of his role as an ACCESS Board
member, Mr. Saleh is frequently called upon to comment on current affairs and events
21
affecting the Arab American community.
79. Mr. Saleh has friends and family in Lebanon, Jordan and the Occupied
Palestinian Territories with whom he frequently communicates by phone and by email.
Prior to becoming aware of the Program, Mr. Saleh communicated with family members
about various political topics and their opinions on current events including Israeli
repression of Palestinians under occupation, Palestinian Right of Return and statehood,
Islamic fundamentalists, terrorism, Osama bin Laden, al Qaeda, and Americas role in
each of these areas.
80. Because of his frequent communications with numerous people in the
Middle East and other foreign countries about topics likely to trigger monitoring, Mr.
Saleh has a well-founded belief that his communications are currently being intercepted
81. The likelihood that his communications are being intercepted by the
NSA under the Program impinges on Mr. Salehs ability to communicate freely and
candidly in his international calls and emails. Since learning of the Program in news
reports, he has refrained from talking about or emailing friends and family abroad about
topics that might trigger monitoring.
82. The Program also interferes with Mr. Salehs efforts to promote peace
and justice in this country. Before he became aware of the Program, he felt free to
engage in free and open communication with people in other countries about critical
issues of the day. He gained unique insight from these conversations into U.S. foreign
policy that he could not gain from the media in this country. Because of the NSA
Program, he is less willing to engage in substantive discussions with people abroad and
22
therefore is not able to either gain these unique insights or share them with others.
Mohammed Abdrabboh
83. Mohammed Abdrabboh is a member of the ACLU of Michigan and has
been a member of the ACLU of Michigans Board of Directors since 2002. He is a
United States citizen and a licensed attorney in the State of Michigan, with a practice in
immigration, criminal defense and civil rights law, in Wayne County, Michigan. Mr.
Abdrabboh serves as a Commissioner on the Michigan Civil Rights Commission, to
which he was appointed by the Governor in May 2003. Mr. Abrabboh also teaches a
course on civil liberties and national security at the University of Michigan at Dearborn.
84. Mr. Abdrabboh frequently communicates by telephone and email with
family in the West Bank, Gaza, and Jerusalem. After law school, Mr. Abdrabboh worked
for Al Haq, a human rights organization in the West Bank. He frequently communicates
with friends and acquaintances he met while working there. He also communicates a
number of times per month by telephone and email with friends and acquaintances in
Saudi Arabia.
85. Approximately ninety-percent of Mr. Abdrabbohs clientele come from
countries in the Middle East. As part of his immigration practice, he regularly represents
individuals who live in the Middle East and are seeking to enter the United States, and as
part of his representation he must conduct all communications with them through
telephone and email. The nature of Mr. Abdrabbohs law practice requires him to
communicate regularly by telephone and email with people in Lebanon, the West Bank
and Gaza. His practice also requires that he occasionally communicate with individuals
by telephone and email in Jordan, Afghanistan and Yemen. These communications are
23
essential in providing effective representation to his clients.
86. As part of his criminal defense practice, Mr. Abdrabboh has represented
and continues to represent people the government has suspected of allegedly having some
link to terrorism or terrorist organizations.
87. Because of the nature of his communications, the identities and
locations of people with whom he communicates, Mr. Abdrabboh has a well-founded
belief that his communications are being intercepted by the NSA under the Program.
88. The Program has inhibited communications between Mr. Abdrabboh
and his family and friends because he is less candid about his political views and avoids
saying things that are critical of the U.S. government over the telephone or through email.
89. The Program has inhibited communications between Mr. Abdrabboh
and his clients, both foreign and domestic. Since learning of the Program, Mr.
Abdrabboh has limited his communications about sensitive or privileged matters over the
telephone or by email for fear the government is monitoring the communication. Instead,
he has tried to limit such communications to in-person meetings, which has greatly
impaired his ability to quickly get information he needs for the purpose of representing
clients. Mr. Adbrabboh also believes that some of his clients have now stopped giving
him sensitive information over the telephone. In one instance, a client who now lives in
Afghanistan refused to share information over the telephone with Mr. Adbrabboh that
was necessary to his representation in an immigration matter because the client feared the
communication was being monitored by the government.
Nabih Ayad
90. Nabih Ayad is a member of the ACLU of Michigan. He is a licensed
24
attorney whose practice includes immigration, criminal defense and civil rights cases, in
Wayne County, Michigan. Since 2002, he has served on the Lawyers Committee of the
ACLU of Michigan, a committee that makes recommendations to the Board of Directors
about which cases to pursue.
91. In his immigration practice, Mr. Ayad represents individuals throughout
the Middle East and South Asia including individuals from Lebanon, Syria, Jordan,
Egypt, United Arab Emirates, Iraq, Iran and Saudi Arabia. The government has
attempted to deport some of his clients because of suspected ties to terrorism. For
example, the government suspected some of his clients of supporting, or having ties to,
the military wing of Hezbollah, a group that has been designated a terrorist organization
by the Department of State. Mr. Ayad has also represented individuals from Lebanon,
Liberia, and Trinidad who seek political asylum in this country. He successfully
prevented 130 immigrants from Lebanon and Yemen accused of visa fraud from being
deported through an expedited removal process. In the course of his immigration
practice, Mr. Ayad is required to communicate by phone or through email with clients,
clients families and associates, and witnesses in the countries mentioned above.
92. Mr. Ayad has represented criminal defendants from Middle Eastern
countries who have been accused of terrorism-related crimes. For example, he
represented one individual from Jordan with suspected ties to the Taliban who came into
this country with $12 million of counterfeit checks. He represented a man for Yemen
who case was dismissed at the preliminary examination after he was wrongfully accused
of attempting to blow up a federal building in Detroit. He also represented individuals
from Lebanon who were accused of smuggling weapons oversees to Hezbollah. Through
25
the course of his criminal defense work, it is necessary to prepare a defense by
communicating with clients, clients families, witnesses and others in the clients home
countries.
93. Mr. Ayad is a naturalized U.S. Citizen who was born in Lebanon. He
has family and friends in Lebanon and Germany with whom he communicates by phone
and email. When speaking with friends and family in the past, he discussed current
events in the Middle East including the war in Iraq and terrorism.
94. Because of the nature of his communications, the identities of the some
of the people with whom he communicates and the subject matter of conversations, Mr.
Ayad has a well-founded belief that his communications are being intercepted by the
95. The Program has already inhibited communications between Mr. Ayad
and individuals in the Middle East and Asia that are necessary to provide effective legal
representation to his clients. Because of the Program, Mr. Ayad will not have certain
kinds of conversations by phone or email for fear that the government might be
monitoring his communications. For example, he will no longer communicate by phone
or email about important strategic matters and about certain evidence in terrorist-related
immigration or criminal cases. In addition, because of the program Mr. Ayad will even
avoid discussing certain political topics with family and friends abroad for fear that such
conversations will trigger monitoring.
Council on American-Islamic Relations
96. Plaintiff CAIR is a non-profit and non-partisan grassroots organization
dedicated to enhancing the general publics understanding of Islam, protecting civil
26
liberties, empowering American Muslims and building coalitions that promote social
justice and mutual understanding. CAIR is the largest Islamic civil liberties organization
in the United States with more than 30 affiliated sister chapters throughout the United
States and Canada representing the interests of over seven million American Muslims.
97. CAIRs Communications Department works in conjunction with local,
national and international media outlets to ensure that an accurate portrayal of Islam and
Muslims is presented to the general public. CAIRs daily news release service reaches
individuals and international media outlets on a daily basis. Because of its
communications work, CAIR has become a respected and credible source for journalists
and other media professionals worldwide. CAIR representatives are regularly
interviewed by CNN, BBC World Service, FOX News, The Washington Post, The New
York Times, and The Los Angeles Times, as well as media outlets throughout the
Muslim world, such as Al-Jazeera, Al-Arabiya, the Middle East Broadcasting Company
(MBC), GEO TV (Pakistan), Al-Ahram, and other international print and broadcast
outlets.
98. Because of its advocacy work, CAIR makes international telephone
calls and write emails to journalists worldwide.
99. CAIRs international media communications are vital to its
organizational goals of enhancing understanding of Islam, facilitating inter-cultural
understanding, ensuring fair and accurate portrayals of Islam and Muslims in the media,
and serving as a bridge between American and the Muslim world. CAIRs
communications with members of the American Muslim community are also an essential
part of its organizational success. Many members of the American Muslim community
27
communicate, both electronically and otherwise, to their families abroad.
100. CAIRs international media communications cover a range of subjects
that are likely to trigger NSA scrutiny under the Program. These subjects include Islam,
extremism, post-9/11 policies, surveillance, terrorism and counterterrorism, the war in
Iraq and the American Muslim community.
101. CAIRs Communications Department drafts press releases, edits
opinion articles and coordinates public education campaigns related to CAIRs mission
and vision. In this role, CAIRs Communications Department receives calls from
journalists from all over the world who seek information or official comment from the
American Muslim perspective on issues related to CAIRs press releases or official
positions.
102. The Program substantially impairs the ability of CAIR to engage in
communications that are vital to its mission and the ability of the American Muslim
community to freely communicate abroad without the fear of being placed under
unlawful surveillance.
103. As a civil rights organization, CAIR also communicates confidential
information about pending civil rights cases via international telephone calls and emails.
104. For example, after two high-profile individuals, musician Cat Stevens
(known as Yusuf Islam since his conversion to Islam) and world-renowned academic
Tariq Ramadan, named one of TIME Magazines Top 100 Innovators, were denied
admission to the United States; CAIR personally spoke with and emailed each of the
individuals abroad.
105. The members of the American Muslim community, many of whom are
28
members of CAIR, are engaged in efforts of commerce, education and social services
with individuals and institutions in the Muslim world. The work of the American-
Muslim community in being able to engage freely in commerce, education and social
services in the Muslim world is a vital part of building bridges between America and the
Muslim world and thus, is integral to Americas national security and vital interests. The
Program substantially impairs the ability of the American Muslim community to engage
in communications that are vital to Americas national interests.
106. The communications of CAIR, its members and the American Muslim
community with individuals and journalists abroad are an integral part of the mission and
vision of CAIR, specifically related to building bridges of understanding between
America and the Muslim world. The possibility that the American Muslim communitys
international electronic communications are being intercepted by the NSA impinges their
ability to communicate freely and candidly in their international communications.
CAIR-Michigan
107. CAIR-Michigan is a non-profit and non-partisan grassroots organization
dedicated to enhancing the general publics understanding of Islam, protecting civil
liberties, empowering American Muslims and building coalitions that promote social
justice and mutual understanding.
108. Because of its advocacy and civil rights work, CAIR-Michigan makes
international telephone calls and writes emails to journalists worldwide related to the
large American Muslim population within the state of Michigan.
109. CAIR-Michigans media communications are vital to its organizational
goals of enhancing a better understanding of Islam, facilitating inter-cultural
29
understanding and ensuring fair and accurate portrayals of Islam and Muslims in the
media. CAIR-Michigans communications are also essential to the organizations
communication with its members in the American Muslim community in Michigan;
many of whom communicate, both electronically and otherwise, to their families abroad.
Nazih Hassan
110. Nazih Hassan is a member of CAIR-Michigan who resides in
Washtenaw County, Michigan. He was born in Lebanon in 1969, and became a legal
permanent resident of the United States in 2001. From 2002 to 2003, he served as the
president of the Muslim Community Association of Ann Arbor. He has served as chair
on MCA Board of Directors from mid-2005 to the present. Mr. Hassan works as a
technology consultant.
111. Mr. Hassan has friends and family in Lebanon, Saudi Arabia, France,
Australia and Canada with whom he frequently communicates by telephone and email.
Among the people with whom he communicates by phone and email are his friends Islam
Almurabit and Rabih Haddad.
112. Mr. Haddad is a native of Lebanon who was educated in the United
States and lived in Ann Arbor, Michigan for more than 3 years. Mr. Haddad was an
active member and popular volunteer teacher at the mosque to which Mr. Hassan
belongs. Mr. Haddad co-founded Global Relief Foundation (GRF) in 1993, a
humanitarian organization which the federal government has accused of having provided
material support for terrorism. In December 2001, Mr. Haddad was arrested for an
immigration violation on the same day that the offices of GRF were raided. Mr. Haddad
was held for about a year before being deported to Lebanon. As one of the two media
30
coordinators for the Free Rabih Haddad Committee, Mr. Hassan drafted press releases,
spoke to the media and organized public demonstrations against the detention of Mr.
Haddad. Mr. Hassan visits Rabih Haddad when he returns to Lebanon for vacations.
113. Islam Almurabit, the former executive director of Islamic Assembly of
North Americh, lived in Ann Arbor for approximately 7-8 years. In 2003, after the IANA
offices were raided in Ypsilanti, Mr. Almurabit was visited by the FBI and accused of
being a supporter of extremism. Rather than face continual harassment by the FBI, Mr.
Almurabit left the United States in 2004 or 2005 and moved to Saudi Arabia.
114. Prior to becoming aware of the NSA Program, Mr. Hassan would speak
with or communicate with family members about various political topics and their
opinions on current events including Islam and the war in Iraq, Islamic fundamentalists,
terrorism, Osama bin Laden, al Qaeda, the war in Afghanistan and the riots in France and
Australia. Mr. Hassan would also participate in online discussion groups or bulletin
boards about the war in Afghanistan on foreign websites in order to learn what people
from other countries were thinking and to voice objections to those who favored
extremism.
115. Because of his activism in the United States, his friendship with Islam
Almurabit and Rabih Haddad, and his frequent communications with numerous people in
the Middle East and other foreign countries about topics likely to trigger monitoring, Mr.
Hassan has a well-founded belief that his communications are currently being intercepted
116. The likelihood that his communications are being intercepted by the
NSA under the Program impinges on Mr. Hassans ability to communicate freely and
31
candidly in his calls and emails. Since learning of the NSA Program in news reports, he
has refrained from talking about or emailing friends and family abroad about any topic
that might trigger monitoring. He has not called his friends Islam Al-Murabit or Rabih
Haddad or engaged in email communications with them about anything political for fear
that such communications would somehow be taken out of context or misconstrued as
support for extremism. Finally, he no longer visits websites or discussion groups where
some people advocate extremism, even though his purpose in participating in the
discussion groups previously had been to oppose extremism.
117. The Program also interferes with Mr. Hassans efforts to promote peace
and justice in this country. Before he became aware of the NSA Program, he felt free to
engage in free and open communication with people in other countries about critical
issues of the day. He gained unique insight from these conversations into U.S. foreign
policy that he could not gain from the media in this country. Mr. Hassan used these
communications in his political work in the United States to educate Americans about the
consequences of U.S. policy abroad. Because of the Program, he is no longer engaging
in substantive discussions with people abroad and therefore is not able to either gain these
unique insights or share them with others.
Greenpeace
118. Plaintiff Greenpeace is an advocacy organization dedicated to
combating the most serious threats to the planets biodiversity and environment. Since
1971, Greenpeace has been at the forefront of environmental activism through non-
violent protest, research, lobbying, and public education. Greenpeace has approximately
250,000 members and seven offices in the United States. Greenpeace is associated with
32
international Greenpeace entities, which have a presence in 39 other countries and more
than 2.5 million members.
119. As part of its international environmental advocacy, Greenpeace leaders
and staff engage in international communications, via telephone and email, on a daily
basis. Individuals contacted include staff members of Greenpeace offices in other
countries, representatives of multinational organizations, governmental officials,
scientific experts, and Greenpeace members. Greenpeace communicates by telephone
and email with people in the Netherlands, England, Germany, Canada, Mexico, Australia,
Brazil, India and Japan.
120. Greenpeace is aware that it has been targeted for surveillance in the past
by the NSA. For example, in 1992 British intelligence officials revealed to the London
Observer that in the 1990s the NSA had used the word Greenpeace as a keyword to
intercept communications outside the United States. Government documents recently
obtained under the Freedom of Information Act (FOIA) reveal that Greenpeace has been
the subject of surveillance by the FBI and Joint Terrorism Task Forces, whose internal
documents contend that the organization is associated with suspicious activity with a
connection to international terrorism. Documents obtained through the FOIA also
indicate that the FBI has used confidential informants to obtain information about
Greenpeace activities.
121. Greenpeaces recent activities also make the organization a likely target
for government surveillance. In the past several years, Greenpeace has repeatedly
engaged the Bush administration through public protest and activism. In 2001,
Greenpeace held public demonstrations outside the personal residences of President Bush
33
and Vice President Cheney, attacking the administrations environmental and energy
policies. Greenpeace has also actively publicized the Bush administrations ties to the oil
industry, particularly to ExxonMobil. Seventeen Greenpeace activists were arrested in
2001 in connection with a protest aimed at disrupting a star wars missile test at
Vandenberg Air Force Base. In 2002, Greenpeace protestors chained themselves to gas
pumps at ExxonMobil stations in New York and Los Angeles, carrying banners that
called on the Bush administration to stop favoring the oil industry over the environment.
In 2003, there were several European protests against the war in Iraq by Greenpeace
activists, including one at Rota Naval Air Base in Spain. More recently, a team of
international Greenpeace experts exposed the United States militarys failure to secure
and contain nuclear waste facilities in Iraq.
122. Because of the nature of Greenpeaces international communications,
Greenpeaces recent activities, and the U.S. governments past surveillance of
Greenpeace, Greenpeace has a well-founded belief that its international communications
are currently being intercepted by the NSA under the Program.
123. Greenpeaces telephone calls, emails, and other Internet
communications with individuals and organizations abroad are vital to its organizational
goal of addressing environmental problems of global magnitude. This mission requires
free and open communication with international colleagues, members, experts, and
leaders of governments and industry.
124. The Program substantially impairs the ability of Greenpeace to engage
in communications that are vital to its mission. Knowledge of the Program requires
Greenpeace staff to minimize the sensitive information they include in their international
34
electronic communications and to be more circumspect and less candid in their
communications to members and others. Greenpeace also believes that people abroad are
more reticent in communicating with Greenpeace because of the likelihood that their
conversations will be monitored by the NSA under the Program. Greenpeace fears that
the Program will enable the U.S. government to disrupt Greenpeaces lawful activities by
taking preemptive action against legitimate, and peaceful, protests.
National Association of Criminal Defense Lawyers
125. The National Association of Criminal Defense Lawyers (NACDL) is a
District of Columbia non-profit organization whose membership is comprised of over
13,000 lawyers and 28,000 affiliate members representing every state. The NACDL was
founded in 1958 to promote study and research in the field of criminal law; to
disseminate and advance knowledge of the law in the area of criminal practice; and to
encourage the integrity, independence, and expertise of defense lawyers in criminal cases.
126. NACDL is concerned with the erosion of due process and the rights of
criminal defendants and suspects generally, but particularly so with respect to the impact
of the War on Terror upon the criminal justice system, due process, and the protections
afforded by the Fourth, Fifth, and Sixth Amendments.
127. NACDL has been active with respect to those issues. NACDL has filed
amicus briefs in a considerable number of cases involving the infringement of rights
precipitated by the War on Terror, including in the Courts of Appeal, the Foreign
Intelligence Surveillance Court of Review, and the Supreme Court. NACDL has been
involved as amicus in all of the cases involving the rights of detainees, either U.S.
citizens or those held at Guantanamo Bay, Cuba, in the lower and appeals courts.
35
128. NACDL also has at least three committees that address these issues: its
Select Committee on Military Tribunals, its International Law Committee, and its Ethics
Committee. Its Amicus Curiae Committee has also been intensively involved in these
issues.
129. At least fifty NACDL members currently represent or have represented
terrorism suspects, and many of these members regularly communicate with people
outside the United States. Because of the nature of these communications, the identities
of the individuals with whom they communicate, and the locations of individuals with
whom they communicate, NACDL members have a well-found belief that their
communications are being intercepted by the NSA under the Program. The Program is
inhibiting communications that are necessary for NACDL members to provide effective
legal representation to their clients.
Joshua L. Dratel
130. Joshua L. Dratel is a nationally recognized criminal defense lawyer in
New York City. Mr. Dratel is a member of NACDLs Board of Directors and Co-Chair
of its Select Committee on Military Tribunals. He is also co-editor of The Torture
Papers: The Legal Road to Abu Ghraib (Cambridge University Press: 2005).
131. Mr. Dratel currently represents a number of individuals who have been
accused by the federal government of terrorism-related crimes. For example, Mr. Dratel
is lead counsel for David Hicks, whom the United States government has detained as an
enemy combatant at Guantanamo Bay since 2001, and who is being prosecuted by the
U.S. military commission. Mr. Dratel also represents Lynne Stewart, a criminal defense
lawyer accused of providing material support for terrorism. Mr. Dratel also represents
36
Mohamed El-Mezain in a federal prosecution charging material support for terrorism, and
Wadih El-Hage, a defendant in United States v. Usama Bin Laden (the Embassy
Bombings case), in Mr. El-Hages pending appeal of his conviction. Mr. Dratel also
represented Sami Omar Al-Hussayen, who was acquitted in federal court in Idaho of
providing material support for terrorism based on the technical support he provided to
web sites and discussion boards about terrorism and jihad.
132. In representing these and other clients, Mr. Dratel routinely engages in
telephone and email communications with witnesses, foreign counsel, experts,
journalists, and government officials in Israel, Germany, Australia, the United Kingdom,
and elsewhere. He also routinely communicates with the family members of his clients,
many of whom reside in other countries. These communications are essential to his
effective representation of his clients.
133. In representing these and other clients, Mr. Dratel conducts research and
accesses discussion boards on the Internet as an integral part of the investigatory process.
This research often includes review of web sites that allegedly support terrorism and
jihad, and/or discuss the issues, including qoqaz.com, azzam.com, alasr.ws, palestine-
info.org, islamway.com, and cageprisoners.com, among many others. Because of the
charges against Sami Omar Al-Hussayen, Mr. Dratel reviewed hundreds of such web
sites and discussion boards in preparation for trial. Mr. Dratel also engages in keyword
searches using terms such as Usama bin Laden, Chechnya, qoqaz, Sheikh Safer
al-Hawali, Sheikh Salman al Odah, and Hamas.
134. Because of the nature of his communications, the identities of people
with whom he communicates, and the subject matter of his online research, Mr. Dratel
37
has a well-founded belief that his communications are being intercepted under the
Program.
135. The Program has already inhibited communications between Mr. Dratel
and individuals in other countries that are necessary to provide effective legal
representation to his clients. Since learning of the Program, Mr. Dratel has ceased having
certain kinds of discussions over the telephone or by email for fear that the government
may be monitoring his communications.
Nancy Hollander
136. Nancy Hollander, a member and past President of NACDL, is a
nationally recognized criminal defense lawyer in Albuquerque, New Mexico. Ms.
Hollander is co-chair of NACDLs International Affairs Committee and also in charge of
recruiting volunteers to represent prisoners at Guantanamo.
137. Ms. Hollander currently represents organizations and individuals who
have been accused by the federal government of terrorism-related crimes. For example,
Ms. Hollander represents Holy Land Foundation and its Executive Director Shukri Abu
Baker, who are currently under indictment in Dallas, Texas charged with providing
material support to a terrorist organization. She also represents Mohammedou Ould
Salahi, who the federal government has declared an enemy combatant and who has been
detained at Guantanamo Bay since 2002. She also represented Fawaz Damrah, who was
charged and convicted in Ohio of naturalization crimes but whom the federal government
attempted to link to Sami Al-Arian, a professor accused and recently acquitted in Florida
of terrorism-related crimes.
38
138. The nature of Ms. Hollanders legal practice requires her to
communicate regularly by email and telephone with individuals outside the United States.
These communications are essential in providing effective representation to her clients.
For example, in representing these and other clients, Ms. Hollander routinely
communicates by telephone and email with witnesses, foreign counsel, experts,
journalists, government officials and political figures in Israel, Gaza, the West Bank,
Egypt, and other countries in the Middle East, as well as in Mauritania.
139. In representing these and other clients, Ms. Hollander also conducts
research on the Internet about terrorism, religion, and politics in the Middle East and
South Asia, and also participates in Internet discussions on these topics. Ms. Hollander
routinely searches web sites using key words such as Hamas, Palestianian Islamic
Jihad, muhajadin, and suicide bomber. This research is a necessary component of
the investigatory process.
140. Because of the nature of her communications, the identities of people
with whom she communicates, and the subject matter of her online research, Ms.
Hollander has a well-founded belief that his communications are being intercepted by the
141. The Program has already inhibited communications between Ms.
Hollander and individuals in the Middle East that are necessary to provide effective legal
representation to her clients. Since learning of the Program, Ms. Hollander has ceased
having certain kinds of discussions over the telephone or by email for fear that the
government may be monitoring her communications. Ms. Hollander has decided that
she will no longer communicate by phone or email about any strategic or privileged
39
matters with her clients charged in terrorism related cases, or with witnesses, experts,
potential experts and co-counsel outside the United States. In one current case, Ms.
Hollander is planning an expensive trip to obtain information that she would have
previously obtained via telephone and email.
William W. Swor
142. William W. Swor is a member of the NACDL, and a member of the
Board of Directors of the Criminal Defense Attorneys of Michigan. He maintains a
private practice of law in Detroit, Michigan. His practice is primarily in the areas of
federal criminal defense and immigration law.
143. Mr. Swor has represented, currently represents and expects to represent
in the future, individuals who were investigated and or prosecuted under one or more of
the federal terrorism-related statutes. For example, Mr. Swor represents Abdel-Ilah
Elmardoudi who was wrongfully accused by the United States of providing material aid
in support of terrorism. Mr. Swor also represents Mahmoud Kourani who was accused
by the United States of providing material aid to Hezbollah, in Lebanon. Mr. Swor has
other matters pending, both criminal and immigration matters, in several federal districts
in which his clients are being investigated or prosecuted under one or more of the federal
terrorism-related statutes.
144. In representing these and other clients, Mr. Swor conducts research on
the Internet about terrorism, religion and politics in the Middle East, Eastern Europe,
Africa and the Caucasus Mountain region. This research includes review of sites that
support terrorism and/or organizations that the United States has declared Foreign
Terrorist Organizations (FTOs). This research is a necessary component of his
40
preparation of his cases. Based upon discovery provided by the United States in pending
matters, he will continue to need to refer to these sites for information.
145. The nature of Mr. Swors legal practice also requires him to
communicate by telephone with individuals outside of the United States, including
individuals whose communications are likely to have been intercepted under the
Program. These individuals are witnesses, potential experts, journalists, and others who
are located in the Middle East, e.g. Lebanon, and Jordan, as well as western European
countries such as France and England. These communications are essential in providing
effective representation to his clients.
146. Mr. Swor has a well-founded belief that his communications are being
intercepted by the NSA under the program. The Program has already inhibited
communications between Mr. Swor and individuals in the Middle East that are necessary
to provide effective legal representation to his clients. Since learning of the Program, Mr.
Swor has avoided having certain kinds of discussions over the telephone or email for fear
that the government may be monitoring his communications. Mr. Swor believes that he
will now have to schedule one or more trips overseas to interview witnesses and to obtain
information that he would have previously been able to obtain via telephone and email
communications.
James Bamford
147. Plaintiff James Bamford, of Washington, D.C., is an award-winning and
bestselling author and journalist. He is one of the worlds leading experts on U.S.
intelligence generally and the National Security Agency specifically. Mr. Bamford is the
author of A Pretext for War: 9/11, Iraq, and the Abuse of Americas Intelligence
41
Agencies (Doubleday, 2004), Body of Secrets: Anatomy of the Ultra-Secret National
Security Agency (Doubleday, 2001), and The Puzzle Palace: A Report on NSA,
Americas Most Secret Agency (Houghton Mifflin, 1982). Mr. Bamford has written
extensively on national security issues for a range of newspapers and magazines,
including investigative cover stories for The New York Times Magazine, The
Washington Post Magazine, and The Los Angeles Times Magazine. From 1989 -1998,
he was the Washington investigative producer for ABCs World News Tonight with Peter
Jennings. In 2002, he was a distinguished visiting professor of National Security at the
Goldman School of Public Policy, University of California, Berkeley.
148. As an expert on intelligence, Mr. Bamford has testified before
committees of both the Senate and House of Representatives as well as the European
Parliament in Brussels and the International Criminal Tribunal for the former Yugoslavia.
He has also been a guest speaker at the Central Intelligence Agencys Senior Intelligence
Fellows Program, the National Security Agencys National Cryptologic School, the
Defense Intelligence Agencys Joint Military Intelligence College, the Pentagons
National Defense University and Air War College, and the Director of National
Intelligences National Counterintelligence Executive.
149. Mr. Bamford first experienced the impact of illegal NSA eavesdropping
on Americans, and the lengths to which the U.S. government will go to prevent
disclosure of its spying programs, thirty years ago. As Mr. Bamford was writing The
Puzzle Palace, he discovered that the Justice Department in 1976, during the Ford
administration, began a secret criminal investigation into widespread illegal domestic
eavesdropping by the NSA. Mr. Bamford filed a request under the Freedom of
42
Information Act for documents dealing with that investigation. Several hundred pages of
documents were eventually released to him in 1979. The documents showed that the FBI
questioned senior NSA officials about the possibility of their having violated federal
criminal laws by engaging in warrantless eavesdropping of American citizens. The
investigation, said the documents, uncovered 23 different categories of questionable
activities. However, because of the secrecy of the operations, and the fact that law was
undefined in this area, the Justice Department decided against prosecution and instead
recommended that new laws be created to outlaw this type of activity.
150. Shortly after President Ronald Reagan took office, the Justice
Department, at the request of the NSA, notified Mr. Bamford that the documents had
been reclassified as top secret and demanded their return. When Mr. Bamford refused,
saying that they had been properly declassified and released to him by the Carter
administration, he was threatened with prosecution. Mr. Bamford then cited the
presidential executive order on secrecy which stated that once a document had been
declassified, it cannot be reclassified. As a result, President Reagan changed the
executive order to indicate that once a document has been declassified it can be
reclassified. However, because the order could not be applied retroactively, the new
executive order could not be applied to Mr. Bamford and the information was
subsequently published in The Puzzle Palace.
151. During that period, sources necessary to Mr. Bamfords investigative
journalism were much less willing to communicate with him due to the likelihood that his
communications were being intercepted by the NSA. The NSA had previously placed
another writer, David Kahn, on its watch list, and intercepted his communications, as he
43
was writing his history of cryptology, The Codebreakers. According to the Senate Select
Committee on Intelligence, the agency also considered undertaking clandestine service
applications against the author, which apparently meant anything from physical
surveillance to conducting a surreptitious entry into Kahns New York home.
152. Mr. Bamfords recent work has again made it likely that his
communications are being intercepted by the NSA. For example, in the fall of 2001, Mr.
Bamford received a book contract from Doubleday Publishing Company to write A
Pretext for War, which documents the intelligence mistakes that led to the nations failure
to prevent the 9/11 attacks and the Bush administrations subsequent misuse of
intelligence to sell preemptive war to the American people.
153. Since the fall of 2001, Mr. Bamford has also written more than two
dozen articles, reviews and opinion pieces on intelligence, 9/11, and the wars in Iraq and
Afghanistan. These include Where Spying Starts and Stops (The New York Times,
January 2006), The Agency That Could Be Big Brother (The New York Times,
December 2005), The Labyrinthine Morass of Spying in the Cold War (The New York
Times, July 2003), This Spy For Rent (The New York Times, June 2004), How To
De-Centralize Intelligence (The New York Times, November 2002), War of Secrets
(The New York Times, September 2005), Washington Bends The Rules (The New
York Times, September 2002), A Former CIA Cowboy and his Disillusioning Ride
(The New York Times, September 2002), Were Watching Them (The Washington
Post, February 2005), Sowing the Whirlwind (The Washington Post, February 2004),
A Look Over My Shoulder (The Washington Post, April 2003), Shadow Warriors
(The Washington Post, December 2002), Strategic Thinking (The Washington Post,
44
September 2002), The Wrong Man (The Washington Post, January 2002), Intelligence
Failures (The Washington Post, June 2002), Maintain CIAs Independence (USA
Today, October 2002), Untested Administration Hawks Clamor for War (USA Today,
September 2002), Bush Wrong to Use Pretext as Excuse to Invade Iraq (USA Today,
August 2002), Linguist Reserve Corp Answers Terror Need (USA Today, July 2002),
Secret Warriors: The Great Game (The Los Angeles Times, May 2004), Secrets on
High (The Los Angeles Times, March 2003), The Man Who Sold The War (Rolling
Stone, December 2005) and Breeding Terror: The Intelligence Community Analyzes a
Counterproductive War (The American Conservative, March 2005). Mr. Bamford also
is a contributing editor for Rolling Stone and has served on the USA Today Board of
Contributors.
154. Communicating with individuals in Iraq, Afghanistan, and elsewhere in
the Middle East via email and telephone is a vital part of Mr. Bamfords work as an
author and journalist. Mr. Bamfords sources in the Middle East include people
working for the United States military and intelligence agencies, intelligence officials in
other countries, intelligence experts, and foreign journalists specializing in writing on
intelligence.
155. Mr. Bamfords email communications include discussions of the NSA,
Central Intelligence Agency, military strategies related to the wars in Iraq and
Afghanistan, and the 9/11 attacks and other terrorist attacks. The people with whom Mr.
Bamford has communicated, the locations of people with whom he has communicated,
and the content of his communications are all likely to have triggered scrutiny by the
45
156. Mr. Bamford also frequently communicates by telephone and email
with journalists in the Middle East, both as part of his research and because he is often
interviewed as an expert on U.S. intelligence. For example, he has appeared several
times on Al-Jazeera, the leading television network in the Arab world.
157. As part of his research, Mr. Bamford also frequently visits web sites
that are likely to trigger NSA scrutiny. For example, Mr. Bamford has researched web
sites about terrorism, jihad, Osama bin Laden, al Qaeda, Islamic fundamentalism,
Saddam Hussein, weapons of mass destruction, and signals intelligence. One web site,
Jihad Unleashed, includes translations of Osama bin Ladens communications. Some of
these web sites express support for terrorism.
158. Mr. Bamfords ability to research and write about the NSA,
intelligence, and the war on terror is seriously compromised by the Program. Because the
Program substantially increases the likelihood that his communications are being
intercepted by the NSA, Mr. Bamford is less able to communicate freely and candidly in
his international calls and emails. In addition, because of the Program, Mr. Bamford
believes that sources who have first-hand knowledge about intelligence failures and
abuses are less willing to engage in communications with him.
Larry Diamond
159. Larry Diamond is a senior fellow at the Hoover Institution, Stanford
University, and founding coeditor of the Journal of Democracy. He is also codirector of
the International Forum for Democratic Studies of the National Endowment for
Democracy. At Stanford University, he is professor by courtesy of political science and
sociology and coordinates the democracy program of the Center on Democracy,
46
Development, and the Rule of Law. During 200203, he served as a consultant to the
U.S. Agency for International Development (USAID) and was a contributing author of its
report Foreign Aid in the National Interest. Currently he serves as a member of USAID's
Advisory Committee on Voluntary Foreign Aid. Professor Diamond has also advised
and lectured to the World Bank, the United Nations, the State Department, and other
governmental and nongovernmental agencies dealing with governance and development.
160. During the first three months of 2004, Professor Diamond served as a
senior adviser on governance to the Coalition Provisional Authority in Baghdad. He is
now lecturing and writing about the challenges of post-conflict state building in Iraq, and
the challenges of developing and promoting democracy around the world, with a
particular focus on the Middle East and Africa. Professor Diamond has worked with a
group of Europeans and Americans to produce the Transatlantic Strategy for Democracy
and Human Development in the Broader Middle East, published in 2004 by the German
Marshall Fund of the United States. During 20045, he has been a member of the
Council on Foreign Relations Independent Task Force on United States Policy Toward
Arab Reform.
161. Professor Diamond is the author of numerous books, including
Squandered Victory: The American Occupation and the Bungled Effort to Bring
Democracy to Iraq (Times Books, 2005). His recent edited books include Islam and
Democracy in the Middle East (with Marc F. Plattner and Daniel Brumberg) and
Assessing the Quality of Democracy (with Leonardo Morlino).
162. Professor Diamonds work requires him to communicate by email, and
occasionally by telephone, with advocates of democracy in the Middle East, Asia, and
47
Africa. For example, Professor Diamond corresponds by email with Saad Eddin Ibrahim,
a leading advocate of democratic reform in Egypt, and with Professor Maye Kassem, a
political scientist at the American University in Cairo. Professor Diamond corresponds
with Adel Abdellatif of the United Nations Development Program in Beiruit. Professor
Diamond also corresponds with advocates for democratic reform in many other countries,
including Iran, the Palestinian Authority, Pakistan, China, the Philippines, Nigeria,
Kenya, and Uganda.
163. Professor Diamond has a well-founded belief that his communications
are being intercepted by the Program.
164. Some of Professor Diamonds correspondence with individuals in the
Middle East and Asia concerns political and human rights issues that are extremely
sensitive. For example, Professor Diamond has corresponded with Sana Baloch, a
Pakistani Senator, about human rights issues in Baluchistan. Professor Diamond believes
that Senator Baloch would not have provided him with this information had he believed
that communications with Professor Diamond were monitored by the United States
government. Professor Diamond believes that the existence of the Program makes it less
likely that individuals in Afghanistan, Pakistan, Egypt, China, and elsewhere in the
Middle East and Asia will provide him with sensitive information over email or by
telephone in the future.
165. Because Professor Diamond is a well-known scholar of democratic
reform, he is occasionally contacted unsolicited by individuals who live under repressive
governments and have complaints about their governments policies. Professor Diamond
believes that the Program makes it substantially less likely that such individuals will
48
contact him. Professor Diamond believes that this is particularly true of individuals who
live under repressive governments that have close relations with the United States, such
as Pakistan, Egypt, and Kazakhstan, because these individuals will reasonably fear that
their communications may ultimately be provided by the United States to their own
governments.
166. Professor Diamonds ability to advocate and advise on democratic
reform in the Middle East and Asia depends in part on the willingness of political
dissidents to contact him, to consult with him, and to provide him with information about
their own governments policies. Professor Diamond believes that the Program inhibits
the exchange of information and ideas among advocates of democratic reform and the
victims of human rights abuses and defenders of human rights, and thereby compromises
his ability to study the progress of democratic reform and support those in the Middle
East and Asia who advocate change.
167. Additionally, Professor Diamond is concerned about the implications of
the program for academic freedom. He periodically has undergraduate and graduate
students who travel to the Middle East, Asia, and Africa to conduct research on sensitive
political questions and who need to be in touch with him by email for advice and
coordination while in the field. For example, this past summer, one of his Stanford
undergraduate advisees, Omar Shakir, worked for him as a research assistant in Egypt
interviewing opposition activists, intellectuals, and advocates of democratic change.
Shakir sent weekly reports back to Professor Diamond and they communicated by email
while he was in Egypt. Professor Diamond believes the Program inhibits the conduct and
coordination of overseas research and the supervision of student research by impairing
49
the ability to communicate freely and responsibly with his students and assistants
overseas, who often give their interviewees pledges of strict confidentiality.
Christopher Hitchens
168. Christopher Hitchens is a reporter and author based in Washington,
D.C. He is a prominent and controversial commentator who is vocal in his support for
the military interventions in Iraq and Afghanistan. Mr. Hitchens writes frequently on the
politics of the Middle East. Many of his articles focus on understanding the role and
influence of Islamic fundamentalism in the region. He also probes the success of United
States policy in assuaging the threat to security posed by Muslim terrorists harbored in
the Middle East and West Asia.
169. Mr. Hitchens reportage and analysis appear in numerous publications.
He has published in Harpers, The Spectator, The Nation, New York Newsday, and
Atlantic Monthly. He currently is a frequent contributor to Slate and Vanity Fair. Mr.
Hitchens writes a regularly featured column for Slate called Fighting Words, which he
used to voice his strong support for the allied military actions in Iraq and Afghanistan.
He has traveled throughout the Middle East on behalf of Vanity Fair in order to write a
series of articles describing the political climate in various countries. Mr. Hitchens is
also a best-selling author of several books. In 2003, he published A Long Short War: The
Postponed Liberation of Iraq, a collection of essays analyzing arguments for and against
the war in Iraq. In 2005, he contributed an essay to Thomas Cushmans compilation A
Matter of Principle: Humanitarian Arguments for War in Iraq.
170. Mr. Hitchens work requires him to maintain frequent contact with
sources in the Middle East and Western Asia. Such communications were necessary for
50
him to research his Vanity Fair articles on political conditions in various Middle East
states. These articles include On the Frontier of Apocalypse on Pakistan (January
2002), The Maverick Kingdom on Qatar (December 2002), Saddams Long Good-
Bye on Kuwait (June 2003), A Prayer for Indonesia (January 2004), Afghanistans
Dangerous Bet (November 2004), and Irans Waiting Game (July 2005). Mr.
Hitchens upcoming book and continuing journalism will involve contact with, and visits
to, the Middle East and Western Asia.
171. As part of his work, Mr. Hitchens regularly exchanges emails and
telephone calls with individuals in Iraq, Iran, Afghanistan, Pakistan, India, Indonesia,
Qatar and Kuwait. In a typical week, Mr. Hitchens hears from individuals in several of
these countries. For example, Mr. Hitchens has spoken with Dr. Masuda Jalal, the only
woman who ran for president of Afghanistan; Hossein Khomeini, a cleric whose
grandfather overthrew the Iranian monarchy in 1979; Ali Mohmmed Kamal, a TV
marketing director for Al Jazeera; and Sardar Sikander Hayat Khan, the prime minister of
Pakistani Kashmir. Mr. Hitchens communications to the Middle East and Western Asia
include contacting journalists of a variety of nationalities and individuals in the United
States military and diplomatic corps. He also contacts those who are actively hostile to
the United States military intervention in Iraq and Afghanistan and the United States
more generally. Because of the subject matter of his reporting, many of Mr. Hitchens
communications involve discussions of Islamic fundamentalism, terrorism, jihad, Osama
bin Laden, al Qaeda, and Saddam Hussein.
172. Since well before 2001, but more regularly and frequently since then,
Mr. Hitchens work has required him to travel to the Middle East and Western Asia.
51
Since 2001, the countries he has visited include Iraq, Iran, Afghanistan, Pakistan, India,
Indonesia, Qatar and Kuwait. Travel is an important element of Mr. Hitchens work, as
his reporting offers detailed, first-hand accounts of conditions in countries few
Westerners have an opportunity to visit. For instance, Mr. Hitchens traveled throughout
Iran to prepare Irans Waiting Game (July 2005 Vanity Fair). He visited Tehran, Qom,
and Mashhad to gain a sense of life under Irans theocratic government. In researching
Afghanistans Dangerous Bet (November 2004 Vanity Fair), Mr. Hitchens ventured
from Kabul to the provincial capital of Herat to witness the run-up to Afghanistans first
democratic elections from different vantage points. Mr. Hitchens visited Qatar to report
on its relatively free society, a report in which he devoted much attention to Qatar-based
media outlet Al Jazeera (The Maverick Kingdom, December 2002 Vanity Fair). While
traveling, Mr. Hitchens communicates regularly by telephone and email with colleagues,
editors, and sources in the United States.
173. Because of the nature of his communications with people in the Middle
East, the identities of those with whom he communicates, and the subject matter of his
online research, Mr. Hitchens has a well-founded belief that his communications are
being intercepted by the NSA under the Program. Mr. Hitchens believes that free and
open communication with his sources is an essential element of his work as a journalist.
Given the sensitive nature of his work, Mr. Hitchens must assure some of his sources that
their communications are kept in strict confidentiality. The Program undermines Mr.
Hitchens ability to make that assurance. As a result, individuals are less forthcoming in
their conversations with him, and may cut off communications completely. In addition,
the likelihood that Mr. Hitchens international communications are being intercepted by
52
the NSA under the spying program impinges his own ability to communicate freely and
candidly with his sources and others, to the detriment of his effectiveness as an
investigative journalist.
Tara McKelvey
174. Plaintiff Tara McKelvey is a senior editor at The American Prospect
and a contributing editor to Marie Claire. Her articles have appeared in those two
magazines as well as in The Nation, USA Today, Chicago Tribune, and The New York
Times.
175. Ms. McKelvey has written extensively about the Middle East, including
articles about Iraqi detainees held in United States custody, about womens issues in Iraq,
and about the United States military in Iraq. She is working on a book about U.S. legal
efforts to fight torture and is editing an upcoming anthology about women and torture.
176. Communicating with individuals in Iraq, Jordan, and Syria via
telephone and email is a vital part of Ms. McKelveys work as a journalist. Since
October 2004, Ms. McKelvey regularly emails people in Iraq and Jordan as part of her
research. For example, she made frequent calls to individuals in Iraq, Jordan, and Syria
during November and December 2004 and January, November, and December 2005. Ms.
McKelveys sources in the Middle East include individuals working for the United States
military, Iraqi soldiers, nongovernmental agencies, bankers, school administrators,
journalists, activists, human-rights workers, and others.
177. Among Ms. McKelveys many sources in the Middle East are
individuals she believes are likely to have been the targets of United States government
surveillance because they have been arrested or investigated by United States or coalition
53
forces, have been suspected of aiding insurgents, have ties to the former Iraqi regime, or
are critical of the United States presence in Iraq.
178. For example, in December 2004, for an article for The American
Prospect, Ms. McKelvey interviewed by telephone Khadeja Yassen in Baghdad. Yassen
was a ranking member of the Baath Party and is the sister of former vice president Taha
Yassin Ramadan, who in turn was included in the United States militarys playing card
deck of the 55 most wanted Iraqis. Yassen had her house raided by United States forces
in 2003 and was thereafter arrested.
179. Also in December 2004, for an article for The American Prospect, Ms.
McKelvey interviewed Saja, an engineer in her thirties, by telephone at her home in
Damascus. Ms. McKelvey also emailed her. Saja is, according to an American
spokesman for coalition forces in Iraq, believed to be a former mistress of Saddam
Hussein.
180. As part of her journalistic research, Ms. McKelvey visits numerous
websites hosted in the Middle East that include aggressive anti-American propaganda.
181. Because of her journalistic contacts with individuals in Iraq who have
been arrested or investigated by United States or coalition forces, who have been
suspected of aiding insurgents, who have ties to the former Iraqi regime, or who are
critical of the United States presence in Iraq, Ms. McKelvey has a well-founded belief
that her international communications are being intercepted by the NSA under the
Program.
182. The Program substantially impairs Ms. McKelveys ability to
communicate openly with sources in the Middle East that are essential to her work as a
54
journalist. Many of Ms. McKelveys most important sources have spoken to her in the
past only with great trepidation: they fear that other Iraqis will kill them for speaking
with an American and, at the same time, they fear being arrested (in some cases, re-
arrested) by United States or coalition forces who suspect them of being involved in
insurgent activities. Ms. McKelvey believes that the Program is diminishing the
willingness of her sources to communicate with her and may deter them from
communicating with her altogether for fear that their communications may be
intercepted.
Barnett R. Rubin
183. Barnett R. Rubin is Director of Studies and Senior Fellow at the New
York University Center on International Cooperation (CIC). The CIC promotes policy
research and international consultations on multilateral responses to transnational
problems. He is the chair of the Conflict Prevention and Peace Forum (CPPF), a program
of the Social Science Research Council in New York, that provides the United Nations
with confidential consultations with experts on issues related to conflict and peace around
the world. He is also a member of the board of Gulestan Ariana Ltd., a commercial
company registered in Afghanistan to manufacture essential oils, hydrosols, and related
proeducts, with offices and operations in Kabul and Jalalabad. Previously Professor
Rubin was the Director of the Center for Preventive Action of the Council on Foreign
Relations, of which he is now an advisory board member. He was a member of the UN
delegation to the UN Talks on Afghanistan in Bonn, Germany, in November-December
2001. Professor Rubin advised the United Nations in Afghanistan during the process of
drafting the constitution of the Islamic Republic of Afghanistan in 2003. Professor Rubin
55
is a member of the advisory board of the Central Eurasia Program of the Open Society
Institute, overseeing programs in the Caucasus, Central Asia, Afghanistan, Iran, and
Pakistan.
184. Professor Rubins work and research concerns conflict prevention and
peace building in Afghanistan and the surrounding region. Professor Rubin is regularly
consulted as an expert on Afghanistan, Central Asia, and South Asia and regularly works
in collaboration with officials of Afghanistan, the United Nations, the United States, and
other governments and international organizations on development and institution-
building projects. In his work with CPPF he works on issues related to conflict
prevention in Central Asia and travels to the area. As a board member of Gulestan, he
communicates with individuals in Kabul and Jalalabad, and travels to inspect the
companys operations in Jalalabad and elsewhere in Nangarhar province, including some
areas close to Tora Bora. He has authored and edited numerous books and articles about
Afghanistan and conflict prevention, including The Fragmentation of Afghanistan (New
Haven: Yale University Press, 2002 (second edition), 1995 (first edition)), The Search for
Peace in Afghanistan (New Haven: Yale University Press, 1995), and Blood on the
Doorstep: The Politics of Preventing Violent Conflict (New York: The Century
Foundation and the Council on Foreign Relations, 2002).
185. Professor Rubin communicates by email and telephone with individuals
in Afghanistan almost every day. Professor Rubin frequently communicates by telephone
with Afghan government officials in Kabul. In connection with Gulestans activities he
speaks to individuals in Jalalabad. In connection with his work for CPPF and OSI,
Professor Rubin communicates with individuals in Central Asia. Professor Rubin
56
communicates regularly by telephone with Amrullah Saleh, the Director of the National
Directorate of Security (Afghanistans intelligence agency); with Ishaq Nadiri, President
Hamid Karzais Minister Advisor of Economic Affairs; with Adib Farhadi, Director of
the Afghanistan Reconstruction and Development Services; with Ali Ahmad Jalali, when
he was Minister of the Interior of Afghanistan; with Dr. Ashraf Ghani, Chancellor of
Kabul University and former Minister of Finance of Afghanistan; with engineer
Mohammad Eshaq, former director of Afghan Radio and Television; and with many
others.
186. Professor Rubin also communicates frequently by telephone with
United Nations officials in Kabul, including Lakhdar Brahimi, when he was the United
Nations Special Representative of the Secretary General for Afghanistan (SRSG); Jean
Arnault, the current SRSG; Ameerah Haq, Deputy SRSG; Chris Alexander, Deputy
SRSG; and Eckart Schwieck, Mr. Arnaults Executive Assistant.
187. In connection with his work on Afghanistan and South Asia, Rubin
frequently communicates by email and telephone with colleagues such as Ahmed Rashid,
a journalist and author residing in Lahore, Pakistan. He frequently communicated in the
past several years with a Pakistani journalist named Abubaker Saddique, who worked for
the International Crisis Group, the Integrated Regional Information Network (Central
Asia) of the United Nations and who also worked for CIC as a consultant. These
communications concerned particularly sensitive matters, such as the Afghan-Pakistani
border areas, a project on which they are now working together.
188. In connection with his work for CPPF and OSI, Professor Rubin has
traveled to Tajikistan and other Central Asian countries and engages in email and
57
telephone communications with journalists in the area as well as with OSI staff, such as
Zuhra Halimova, director of the OSI office in Dushanbe, Tajikistan.
189. In connection with his work, Professor Rubin also frequently
communicates with Afghan government officials and others by email. For example,
between August 2005 and the present, Professor Rubin has exchanged numerous emails
with Afghan government officials who are drafting the Afghan National Development
Strategy, on which Professor Rubin works as an advisor. Professor Rubin has also
communicated by email with Amrullah Saleh, the Director of the Afghan intelligence
agency. On occasion, Professor Rubin has also exchanged emails with individuals,
including government officials, in Iran. These have included former deputy foreign
minister Abbas Maleki, editor of the Hamshahri newspaper and director of the Caspian
Studies Institute; and Dr. Sayed Kazem Sajjadpour, former director of the Institute for
Political and International Studies; and Kian Tadjbakhsh, Senior Research Fellow,
Cultural Research Bureau, Tehran. Rubin traveled to Tehran for a conference in
December 2003, and in conjunction with that trip made numerous telephone calls and
emails.
190. Because of the nature of Professor Rubins communications, and the
identities and locations of those with whom he communicates, Professor Rubin has a
well-founded belief that his communications are being intercepted by the NSA under the
Program.
191. Professor Rubin believes that free and open communication with
individuals in Afghanistan and elsewhere in the Middle East and Asia is essential to his
work as a scholar. A large part of Professor Rubins work involves exchanging ideas and
58
information with people in Afghanistan and elsewhere in the Middle East and Asia. The
ideas are sometimes controversial and the information is sometimes sensitive. Professor
Rubin believes that the Program inhibits the free exchange of controversial ideas and
sensitive information and thereby compromises his ability to engage in scholarship and to
work collaboratively with individuals in Afghanistan and elsewhere in the Middle East
and Asia.
CAUSES OF ACTION
192. The Program violates plaintiffs free speech and associational rights
guaranteed by the First Amendment.
193. The Program violates plaintiffs privacy rights guaranteed by the Fourth
Amendment.
194. The Program violates the principle of separation of powers because it
was authorized by President Bush in excess of his Executive authority under Article II of
the United States Constitution and is contrary to limits imposed by Congress.
195. The Program violates the Administrative Procedures Act because the
NSAs actions under the Program exceed statutory authority and limitations imposed by
Congress through FISA and Title III; are not otherwise in accordance with law; are
contrary to constitutional right; and are taken without observance of procedures required
by law.
PRAYER FOR RELIEF
WHEREFORE plaintiffs respectfully requests that the Court:
1. Declare that the Program is unconstitutional under the First and Fourth
Amendments;
59
2. Declare that the Program violates the principle of separation of
powers;
2. Declare that the Program violates the Administrative Procedures Act;
3. Permanently enjoin defendants from utilizing the Program;
4. Award Plaintiff fees and costs pursuant to 28 U.S.C. 2412;
5. Grant such other and further relief as the Court deems just and proper.
Respectfully submitted,
_______________________________
ANN BEESON
Attorney of Record
JAMEEL JAFFER
American Civil Liberties Union
Foundation
New York, NY 10004-2400
(212) 549-2500
_______________________________
KARY L. MOSS
American Civil Liberties Union Fund
of Michigan
60 West Hancock
(313) 578-6800
January 17, 2006
60
IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
AMERICAN CIVIL LIBERTIES UNION, et al.,

Plaintiffs-Appellees/Cross-Appellants,
NATIONAL SECURITY AGENCY, et al.,

Defendants-Appellants/Cross-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN
BRIEF FOR AMICI CURIAE CENTER FOR NATIONAL SECURITY

STUDIES AND THE CONSTITUTION PROJECT
Kate Martin Donald B. Verrilli, Jr.

CENTER FOR NATIONAL SECURITY JENNER & BLOCK LLP
STUDIES 60 1 Thirteenth Street, N. W.
1120 19th Street, N.W., S. 800 Suite 1200 South
Washington, DC 20036 Washington, DC 20005
(202) 72 1-5650 (202) 639-6095
Joseph Onek Erin N. Linder

Sharon Bradford Franklin JENNER & BLOCK LLP
THE CONSTITUTION PROJECT 330 N. Wabash Avenue
1025 Vermont Avenue, N. W. Chicago, IL 606 11
Washington, DC 20005 (3 12) 222-9350
(202) 580-6920
November 17,2006 Counsel for Amici Curiae
TABLE OF CONTENTS
..
TABLE OF AUTHORITIES ............................................................,.......................-11
INTERESTS OF AlZrlICI CURIAE ............................................................. 1
INTRODUCTION AND SUMMARY OF ARGUMENT ........................................3
ARGUMENT ...............................................................................,.............................6
I. WARRANTLESS ELECTRONIC SURVEILLANCE VIOLATES FISA. ......6
A. FISA Is The "Exclusive" Means By Which The United States

Government Can Engage In Electronic Surveillance In The United
States For Foreign Intelligence Purposes. ................................................. 6
B. FISA Provides Flexible Tools For Obtaining Foreign Intelligence

To Prevent And Combat Terrorism, Even In Wartime. ............................ 8
11. CONGRESS DID NOT AUTHORIZE WARRANTLESS ELECTRONIC

SURVEILLANCE BY THE PmSIDENT. .................................................... 10
111. THE CONSTITUTION DOES NOT AUTHORIZE THE PRESIDENT TO
DISREGARD FISA. ......................................................................................... 14
A. The Constitution Does Not Disable Congress From Acting To
Protect The Civil Liberties Of Americans In The United States. ...........18
B. The Executive Cannot Disregard The Warrant Procedure

Established By Congress to Implement Americans7 Fourth
Amendment Rights. .......................................................................,........-20
CONCLUSION.. *. ....................................................................................................30
TABLE OF AUTHORITIES
CASES
Branch v . Smith. 538 U.S. 254 (2003)................................................................... 1 1
Camara v. Mztnicipal Cozat. 387 U.S. 523 ( 1 967).................................................. 21
Danzes & .Wore v. Regan. 453 U.S. 654 (1981)..................................................... 17
Hamdan v. Rumsfeld. 126 S. Ct . 2749 (2006)....................................... 1 1 . 12. 17. 18
Hamdi v. Rumsfeld. 542 U.S. 507 (2004)............................................ 4 5. 13. 14. 19
J. E .M Ag Sztpply. Inc . v. Pioneer Hi-Bred International. Inc., 534 U.S. 124

(2001).................................................................................................................. 1 1
Katz v. United States. 389 U.S. 347 (1967).................................................22. 23. 29
Michigan Dep 't of State Police v. Sitz. 496 U.S. 444 (1990)..................................27
Mincey v. Arizona. 437 U.S. 385 (1978) ................................................................. 25
Mistretta v. Unitedstates. 488 U.S. 361 (1989).................................................... 15
Posadas v. National City Bank of New Ybrk, 296 U.S. 497 (1936)........................ 10
United States v. Andonian. 735 F . Supp . 1469 (C.D. Cal . 1990). aff'd. 29
F.3d 634 (9th Cir. 1994) (unpublished table decision)......................................... 8
United States v . Bel'eld. 692 F.2d 141 (D.C. Cir. 1982)........................................ 26
bhited States v. Brown. 484 F.2d 4 1 8 (5th Cir. 1973) ............................................24
L;nited States v. Butenko. 494 F.2d 593 (3d Cir . 1974).....................................24. 25
United States v. Donovan, 429 U.S. 4 13 ( 1 977)......................................................26
Chited States v . Torres. 75 1 F.2d 875 (7th Cir. 1984) ..............................................8
United States v . Truong. 629 F.2d 908 (4th Cir . 1980) ..................................... 24. 25
United States v . United States District Court. 407 U.S. 297 (1972) ......7. 22. 23. 24.
28.29. 30
United States v . Watson. 423 U.S. 4 11 (1976) ........................................................ 28
United States v . Martinez.Fz~erte. 428 U.S. 543 (1976) .......................................... 27
Yernonia School District 47J v . Acton. 5 15 U.S. 646 (1995).................................-27
Youngstown Sheet & Tube Co. v . Sawyer. 343 U.S. 579 (1952) ........5.6. 11. 14. 15.
16. 17
Z-tveibon v . Mtchell. 5 16 F.2d 594 (D.C. Cir . 1975)...............................................24
CONSTITUTIONAL PROVISIONS AND STATUTES
U.S. Const . art . 11, 5 3 .............................................................................................. 17
U.S. Const . amend IV ............................................................................................. -22
5 U.S.C. 5 552a(k)(l) ............................................................................................... 28
10 U.S.C. 5 801 ........................................................................................................ 12
18 U.S.C. yj 2511(1) ................................................................................................... 6
18 U.S.C. 5 2511(2)(f) ..................................................................................... 3.4. 7
18 U.S.C. 5 2511(3) ................................................................................................... 7

18 U.S.C. 9 2516 ........................................................................................................ 6
18 U.S.C. 5 2518(8)(d) ............................................................................................26
50 U.S.C. $4 1801-1871 ........................................................................................... 3
50 U.S.C. $ 1801(h) ................................................................................................. 26
50 U.S.C. $ 1801(b)(2)(C) ......................................................................................... 5
50 U.S.C. 5 1802........................................................................................................ 3
50 U.S.C. 5 1804........................................................................................................ 3
50 U.S.C. $ 1805(a)(4)............................................................................................. '26
50 U.S.C. 5 1805(f)(l) ............................................................................................... 8

50 U.S.C. 5 1805(f)(2) ............................................................................................... 9
50 U.S.C. 5 1811............................................................................................ 3.4. 5. 9
Act of June 19. 1.968. Pub . L . No . 90-35 1. 82 Stat . 197............................................ 7
Authorization for the Use of Military Force. Pub . L . No . 107.40. 115 Stat .
224 (2001) ....................................................................................................... 4, 10
Electronic Communications Privacy Act of 1986. Pub . L . No . 99.508. 100

Stat . 1848 .............................................................................................................. 7
Foreign Intelligence Surveillance Act of 1978. Pub . L . No . 95-5 11. 9'2 Stat .
1783................................................................................................................... 6, 7
Intelligence Authorization Act of 2002. Pub . L . No . 107-108. 1 15 Stat. 1402

(200 1)....................................................................................................................9
USA PATRIOT Act of 2001. Pub . L . No . 107.56. 115 Stat. 272 .............................9
LEGISLATIVE MATERIAL
H.R. Conf . Rep . No . 95-1720 (1978). as reprinted in 1978 U.S.C.C.A.N.

4048 .......................................................................................................................9
H.K. Rep . No . 95-1283 pt . 1. (1978) ..................................................................8, 24
S. Rep. No. 95-604, pt. I (1997), as reprinted in 1978 U.S.C.C.A.N. 3904 ............. 8
S. Rep. No. 95-701 (1978), as reprinted in 1978 U.S.C.C.A.N. 3973 .................... 20
MISCELLANEOUS
The Declaration of Independence (U.S. 1776) ....................................................,..1 4
INTERESTS OF AMICI C U W E
The Constitution Project is a bipartisan nonprofit organization that seeks to
build consensus on and develop solutions to contemporary legal and constitutional
issues through a combination of scholarship and public education. After
September 1 1,2001, the Project created its Liberty and Security Initiative, a
bipartisan, blue-ribbon committee of prominent Americans, to address the
importance of preserving civil liberties even as we work to enhance our Nation's
security. The Initiative develops policy recommendations on such issues as the use
of military commissions and governmental surveillance policies, which emphasize
the need for all three branches of government to play a role in safeguarding
constitutional rights. In December 2005, the Initiative released a statement
criticizing the recently disclosed domestic surveillance program of the National
Security Agency ("NSA"). In addition, the Project's Courts Initiative conducts
public education on the importance of an independent judiciary and cautions
against legislation or executive branch practices that would limit the substantive
jurisdiction of courts. The Project's bipartisan blue-ribbon War Powers Initiative
also released a report in June 2005 entitled "Deciding to Use Force Abroad: War
Powers in a System of Checks and Balances," which makes recommendations
regarding the respective war powers of all three branches of government.
The Center for National Security Studies is a nonpartisan civil liberties
organization that was founded in 1974 to ensure that civil liberties are not eroded
in the name of national security. The Center seeks solutions to national security
problems that protect both the civil liberties of individuals and the legitimate
national security interests of the government. For more than thirty years, the
Center has worked to protect the Fourth Amendment rights of individuals to be
free of unreasonable searches and seizures, especially when conducted in the name
of national security. Over the years, the Center has filed briefs and lawsuits
concerning the lawfulness of surveillance.
Arnici have a direct interest in the substantive issues this case presents.
Arrzici will not address the threshold questions of whether the plaintiffs in this case
have standing or whether the "state secrets" privilege applies, except to state that
amici believe this Court has both the authority and ability to address the
substantive constitutional challenges plaintiffs present to the NSA7swarrantless
surveillance activities. The parties have consented to the filing of this brief.
INTRODUCTION AND SUMMARY OF ARGUMENT

This case involves a challenge to the recently revealed program of the NSA,
first authorized by the President in the fall of 200 1, to conduct systematic
warrantless electronic surveillance of persons in the United States, in direct
violation of the Foreign Intelligence Surveillance Act, 50 U.S.C. Cjtj 180 1- 187 1
("FISA"). Through FISA and its criminal law enforcement counterparts, Congress
has established the "exclztsive means by which electronic surveillance . . . may be
conducted" in the United States. 18 U.S.C. Cj 25 11(2)(f) (emphasis added).
Congress did so to ensure that civil liberties are protected when the government
carries out the vital task of combating terrorists and other foreign enemies. To that
end, FISA expressly prohibits the President, except in certain narrowly defined
circumstances, from authorizing domestic electronic surveillance for foreign
intelligence purposes unless the Attorney General applies for, and the Foreign
Intelligence Surveillance Court ("FISC") (which FISA established expressly for
this purpose) approves, a warrant application. See id.; 50 U.S.C. $6 1802, 1804,
1811. The Attorney General has made no such application and obtained no such
approval for the NSA's surveillance activities. Those activities are thus flatly
unlawful.
The NSA's asserted justifications for disregarding FISA lack merit.
Congress has never authorized the President to engage in warrantless electronic
surveillance in the United States. The Authorization for the Use of Military Force
("AUMF") enacted by Congress in the wake of the attacks on September 11,2001,
see Pub. L. No. 107-40, 115 Stat. 224 (2001), neither explicitly nor implicitly
supersedes FISA's warrant requirements. FISA itself conclusively refutes this
contention by providing that the statutorily mandated warrant requirements are the
"exclusive" means for conducting such electronic surveillance, 18 U.S.C.
5 25 11(2)(f), and by making clear that even a formal declaration of war would not
authorize the President to abrogate the statute, 50 U.S.C. 5 1811. Moreover,
because the Fourth Amendment requires a warrant for such surveillance and FISA
establishes a special court with both the competence and the ability to rule
expeditiously, there is no basis for invoking any exception to the warrant
requirement here.
By flouting the statutory directives of Congress as well as the Fourth
Amendment, the President's actions raise grave separation of powers concerns, for
they "serve[ ] only to condense power into a single branch of government." Hamdi
v. Rumsfeld, 532 U.S. 507, 536 (2004) (plurality opinion) (emphasis in original).
This effort is particularly dangerous because it comes at the expense of both Con-
gress's and the judiciary's powers to defend the individual liberties of Americans.
"[A] state of war is not a blank check for the President when it comes to the rights
of the Nation's citizens. ivhatever power the United States Constitution en\ isions
for the Executive in its exchanges with other nations or with enemy organizations
in times of conflict, it most assuredly envisions a role for all three branches when
individual liberties are at stake." Id. (emphasis added; internal citations omitted).
The issue is not whether the President has the ability to protect the public
from terrorists by secretly surveilling them and their agents-for that is exactly
what FISA allows. Indeed, FISA was directed at precisely the individuals
allegedly targeted under this program: international terrorists. See 50 U.S.C.
5 1801(b)(2)(C) (international terrorists are "agents . . . of a foreign power" whose
communications are subject to FISA). It provides ample authority for the
Executive to act swiftly and secretly to obtain information about those terrorists,
even in wartime. See, e.g., 50 U.S.C. 5 1811 (limited exemption for declared war).
Rather, the issue is whether the President may disregard an Act of Congress that
safeguards the civil liberties of Americans on American soil.
Congress plainly has the authority to protect the civil liberties of Americans
by requiring that the Executi~reseek a warrant when engaging in electronic
surveillance of persons in the United States. In Yoz~ngstownSheet & Tube Co. v.
Sawyer, 343 U.S. 579 (1952), the Supreme Court established that Congress can,
even during time of war, regulate the "inherent power" of the President through
duly enacted legislation. Id. at 584. That is precisely what FISA does. In
aulhorizing warrantless electronic surveillance in direct violation of FISA, the
President is acting not only with power that is at its "lowest ebb," see id.at 637
(Jackson, J., concurring), he is acting in violation of his constitutional duty to
enforce the law as enacted by Congress, see id.at 633 ("the power to execute the
laws starts and ends with the laws Congress has enacted"), as well as the Fourth
Amendment's warrant requirement.
Thus, the district court should be affirmed.
ARGUMENT
I. WARRANTLESS ELECTRONIC SURVEILLANCE VIOLATES FISA.
A. FISA Is The "Exclusive" Means By Which The United States

Government Can Engage In Electronic Surveillance In The
United States For Foreign Intelligence Purposes.
The text of FISA could hardly be more clear. Section 201 (b) of FISA
amended Title 111 of the Omnibus Crime and Control and Safe Streets Act, 18
U.S.C. $9 25 10 et seg. ("Title 111"), which generally prohibits electronic

surveillance in the United States except pursuant to a warrant issued on probable
cause to suspect criminal activity. See 18 U.S.C. $5 251 1(1), 25 16. FISA
amended Title I11 to explicitly except acquisition of international communications
utilizing a means other than electronic surveillance. See Foreign Intelligence
Surveillance Act of 1978, Pub. L. No. 95-5 1I, 5 201(b), 92 Stat, 1783 ("FISA")
(codified at 18 U.S.C. 9 25 11(2)(f)). The amendment further provides that, along
1
with Title I11 and the Stored Communications Act ("SCA"), the "Foreign
Intelligence Surveillance Act of 1978 shall be the exclusive means by which
electronic surveillance, as defined in section 101 of such Act, and the interception
of domestic wire, oral and electronic communications may be condz~cted." 18
U.S.C. 5 25 11(2)(f) (emphases added).

The statute thus forbids, in the clearest possible terms, electronic
surveillance of persons in the United States, except that the Government may
engage in such surveillance for foreign intelligence purposes if a warrant is
obtained under FISA. Further underscoring the clarity of this prohibition, FISA
repealed 18 U.S.C. 5 25 11(3), which previously had provided that "nothing . . .

shall limit the constitutional power of the President . . . to obtain foreign
intelligence information." Act of June 19, 1968, Pub. L. No. 90-35 1, 5 25 11, 82
Stat. 197,213; see also FISA, Pub. L. No. 95-5 11, 5 20 l(c). The Supreme Court
previously read 5 25 11(3) to "provide[ ] that the Act shall not be interpreted to
limit or disturb such power as the President may have under the Constitution [to
engage in electronic surveillance]." United States v. United States District Court,
407 U.S. 297, 303 (1972) ("Keith").
1
The SCA, codified in Chapter 121 of Title 18 of the U.S. Code, was part of the
Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat,
1848.
FISA7slegislative history provides further confirmation that Congress's dual
purpose in enacting FISA was (I) to "provide a legislative authorization for . . .
electronic surveillance conducted within the United States for foreign intelligence
purposes," and (2) to "moot the debate over the existence or non-existence" of
"any Presidential power to authorize warrantless surveillances in the United
States." H.R. Rep. No. 95-1283, pt. I, at 24 (1978); see also S. Rep. No. 95-604,
pt. I, at 6-7 (1997), as reprinted in 1978 U.S.C.C.A.N. 3904,3908. Thus, it is
hardly surprising that every court to have considered the question has held that "the
Foreign Intelligence Surveillance Act is intended to be exclusive in its domain."
United States v. Torres, 75 1 F.2d 875, 881 (7th Cir. 1984); accord United States v.
Andonian, 735 F. Supp. 1469, 1474 (C.D. Cal. 1990), aff'd, 29 F.3d 634 (9th Cir.
1994) (unpublished table decision) (emphasis added).
B. FISA Provides Flexible Tools For Obtaining Foreign Intelligence

To Prevent And Combat Terrorism, Even In Wartime.
NSA asserts that the exigencies of combating terrorism and a state of war
justify its disregard of FISA. That argument fails. FISA contemplates precisely
such scenarios and provides the Executive with flexible tools to fight terrorism and
conduct wartime actions effectively.
FISA expressly provides for "emergency situation[s17'where intelligence
officials would not have time to seek a FISA warrant before engaging in certain
electronic sur~eillance.See SO U.S.C. 5 1805jf)jl). It empowers the Attorney
General to authorize such surveillance prior to requesting or obtaining a warrant
from the FISC, as long as a request for such warrant was made within 72 hours of
any such authorization. See 50 U.S.C. 5 1805(f)(2). In fact, in response to the
Administration's request after the September 11,2001 attacks, Congress increased
the time allotted the Attorney General for submitting a warrant application from 24
to 72 hours in order to provide greater flexibility in combating terrorists. See
Intelligence Authorization Act of 2002, Pub. L. No. 107- 108, 5 3 14(a)(2)(B), 115
Stat. 1402 (2001). Similarly, FISA provides that the Attorney General may
authorize warrantless electronic surveillance for up to 15 days following a
declaration of war. See 50 U.S.C. 5 181 1. This provision "allow[s] time for
consideration of any amendment to this act that may be appropriate during a
wartime emergency." H.R. Conf. Rep. No. 95-1720, at 34 (1978), as reprinted in
1978 U.S.C.C.A.N. 4048,4063.
Although the AUMF likely did not trigger this provision because it was not
a formal declaration of war, the Administration still had the opportunity to seek
any necessary amendments to FISA. Indeed, not long after the President first
authorized the NSA's surveillance, the Administration sought amendments to
FISA in the USA PATRIOT Act, and Congress responded by substantially revising
the statute in the kvake of the September 11,2001 attacks, see USA PATRIOT Act
of 200 1 Pub. L. No. 107-56, $5 206-208,2 14-218, 1 i 5 Stat. 272; and did so again
in the Intelligence Authorization Act. The President could have made additional
requests to Congress for amendments to FISA at any time in the last four years.
The President simply chose to deQ FISA instead.
11. CONGRESS DID NOT AUTHORIZE WARIRANTLESS

ELECTRONIC SURVEILLANCE BY THE PRESIDENT.
In the face of this exceptionally clear statute, the NSA contends that
Congress authorized warrantless surveillance of persons in the United States when
it enacted the AUMF. That contention is meritless.
The authorization in the AUMF provides, in full,
[tlhat the President is authorized to use all necessary and

appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed or
aided the terrorists attacks that occurred on September
11,200 1, or harbored such organizations or persons, in
order to prevent any future act of international terrorism
against the United States by such nations, organizations
or persons.
AUMF, Pub. L. No. 107-40, 2.
This language contains no reference to FISA, much less an express repeal of
FISA's warrant requirement. Nor is the AUMF an implied repeal or amendment.
"The cardinal rule is that repeals by implication are not favored." Posadas v.
National City Bank oflV. Y , 296 U.S. 497, 503 (1936). An implied repeal will
"only be found where provisions in two statutes are in 'irreconcilable conflict,' or
where the latter Act covers the whole subject of the earlier one and 'is elearl?/
intended as a substitute."' Branch v. Smith, 538 U.S. 254, 273 (2003) (emphasis
added; citation omitted). Repeals by implication can be established only by
"overwhelming evidence" of such an irreconcilable conflict. JE.M A g Supply,
Inc. v. Pioneer Hi-BredIntJ1, Inc., 534 U.S. 124, 137 (2001).
FISA and the AUMF are not in conflict, much less irreconcilably so. FISA
requires the President to obtain a warrant when engaging in domestic electronic
surveillance. The AUMF simply does not address that issue. It cannot reasonably
be suggested that Congress clearly expressed with its silence in the AUMF the
intention to repeal FISA. To the contrary, Congress has made perfectly clear its
intention that FISA be amended in the event a future Congress desired to alter the
statute's restrictions. As Justice Frankfurter noted in Youngstown, "[ilt is one thing
to draw an intention of Congress from general language and to say that Congress
would have explicitly written what is inferred, where Congress has not addressed
itself to a specific situation. It is quite impossible, however, when Congress did
specifically address itself to a problem . . . to find secreted in the interstices of

legislation the very grant of power which Congress consciously withheld." 343
U.S. at 609 (Frankkrter, J., concurring).
The Supreme Court's recent decision in Namdan v.Rzrmsfeld, 126 S. Ct.
2749 (2006), powerfully reinforces this point. There, the Court considered the
propriety of the military commission convened by President Bush to try Harridan,
an enemy combatant detained at Guantanamo Bay. Id. at 2759. Hamdan
contended that the President's actions violated the Uniform Code of Military
Justice ("UCMJ"), 10 U.S.C. 5 801, which sets forth the governing principles for
military courts and conditions the President's authority to use military
commissions. Id. at 2786. In particular, Article 21 of the UCMJ requires that the
President comply with the American common law of war as well as "with the
'rules and precepts of the law of nations,"' including the Geneva Conventions. Id.
(quoting E,lc Parte Quirin, 3 17 U.S. 1, 28 (1947)).
Although the Government argued that the AUMF authorized the President to
invoke military commissions as he deems appropriate, the Hnrndan Court
disagreed, holding that "the military commission convened to try Hamdan lacks
the power to proceed because its structure and procedures violate both the UCMJ
and the Geneva Conventions." Id. at 2759. The Court found "nothing in the text
or legislative history of the AUMF even hinting that Congress intended to expand
or alter the authorization set forth in Article 2 1 of the UCMJ." Id at 2775.
Whether or not the AUMF activated the President's war powers, it did not
implicitly amend or repeal the UCMJ to authorize military commissions that would
otherwise violate the UCMJ. Id. In the same way, nothing in the AUMF speaks to
FISA. Accordingly, the AUMF does not authorize the President to engage in
warrantless domestic electronic surveillance contrary to FISA.
Hamdi v. Rumsfeld, 542 U.S. 507 (2004), is not to the contrary. In Hamdi,
the Supreme Court considered whether the Government could detain as an enemy
combatant an American citizen who was captured in a "foreign combat zone" in
light of 18 U.S.C. 5 4001(a), which provides that "no citizen shall be imprisoned or
othenvise detained by the United States except pursuant to an Act of Congress."
Hamdi, 542 U.S. at 542. The Court concluded that the AUMF was one such "Act
of Congress" because it authorized the detention of individuals who are "part of or
supporting forces hostile to the United States or coalition partners in Afghanistan
and who engaged in armed conflict against the United States there." Id. at 5 16
(emphasis added; quotation marks omitted). But it did so based on the reasoning
that "detention of individuals falling into the limited category we are considering . .
. is so hndamental and accepted an incident to war as to be an exercise of the

'necessary and appropriate' force Congress has authorized the President to use."
Id. at 5 18.
The Court was careful, however, to limit its ruling to "the narrow
circumstances considered here," id. at 5 19, namely, when an American citizen
enemy combatant is detained in a "foreign battlefield," id. at 522 n. 1, or a 'yoreign
combat zone," id, at 523 (emphasis in original). IIanzdi contains no suggestion that
Congress had authorized the Executive to engage in comparable activities on
domestic soil where domestic law applies. To the contrary, the Court stressed that
"a state of war is not a blank check for the President when it comes to the rights of
the Nation's citizens." I'd.at 536.
Thus, there is no basis for concluding that the AUMF authorizes the NSA
surveillance program at issue here.
111. THE CONSTITUTION DOES NOT AUTHORIZE THE PRESIDENT

TO DISREGARD FISA.
Similarly meritless is the NSA's contention that FISA would be
unconstitutional if construed to limit the President's authority to order warrantless
surveillance of persons in the United States. In fact, the opposite is true. To the
extent the NSA's program conflicts with FISA, it is the program that violates the
Constitution.
In the Declaration of Independence, the Founders announced their
determination to break from a tyrant king who "ha[d] affected to render the
Military independent of and superior to the Civil power." The Declaration of
Independence para. I4 (U.S. 1776). Our Constitution was established to end-not
enshrine-this kind of executive overreaching. See Youngtown, 343 U.S. at 641
(Jackson, J., concurring) ("The example of such unlimited executive power that
must have most impressed the forefathers was the prerogative exercised by George
111, and the description of its evils in the Declaration of Independence leads me to
doubt that they were creating their new Executive in his image."). Indeed, by
separating "governmental pobkers into three coordinate[d] Branches," the Framers
designed a framework they considered "essential to the preservation of liberty."
Mistretta v. United States, 488 U.S. 361, 380 (1989). The NSA surveillance
program upends the balance among the three branches of government, and thereby
threatens bedrock liberties the Constitution and the Bill of Rights are designed to
protect.
That the President has unilaterally declared his actions to be in aid of the
national defense is no excuse. In Youngstown, the Supreme Court explicitly
rejected the notion that the President can rely on a national emergency or his
position as Commander-in-Chief to ignore reasonable congressional restrictions on
his exercise of power in the United States. The question in that case was "whether
the President was acting within his constitutional power" when he directed the
seizure of most of the Nation's steel mills. 343 U.S. at 582. The President
asserted that he had "inherent authority" to do so and that "his action was
necessary to avert a national catastrophe which would inevitably result from a
stoppage of steel production, and that in meeting this grave emergency the
President was acting within the aggregate of his constitutional powers as the
Nation's Chief Executive and the Commander in Chief." Id. at 582. When the
President issued his order, the steel industry was in the midst of a nationwide labor
dispute and the country was at war in Korea. Id. at 582-83. The President could
not "rely on statutory authorization for this seizure" because the requirements for
seizing property under any potentially applicable statute were not met, and because
the very "use of the seizure technique to solve labor disputes" had been rejected by
Congress. Id. at 585-86.
The Court held that the President violated the Constitution by seeking to
exercise the Commander-in-Chief power in violation of a valid congressional
enactment. As the Court explained, "the President's power to see that the laws are
faithfully executed refutes the idea that he is to be a lawmaker." Id. at 587. Justice
Jackson, in his now famous concurrence, further clarified the limitations on
executive authority announced by the Court. Noting the "relativity" of the
President's powers, Justice Jackson outlined the "legal consequences" of three
separate exercises of executive authority: (1) "When the President acts pursuant to
an express or implied authorization of Congress, his authority is at its maximum,
for it includes all that he possesses in his own right plus all that Congress can
delegate"; (2) "When the President acts in absence of either a congressional grant
or denial of authority, he can only rely upon his own independent powers, but there
is a zone of twilight in which he and Congress may have concurrent authority, or in
which its distribution is uncertain"; (3) "When the President takes measures
incompatible with the expressed or implied will of Congress, his power is at its
lowest ebb, for then he can rely only upon his own constitutional powers minus
any constitutional powers of Congress over the matter." Id. at 635-37 (Jackson, J,,
concurring); see Dames & Mbore v. Regan, 453 U.S. 654,668-69 (198 1)
(endorsing Jackson framework).
Analyzed in these terms, the President's power is at its lowest ebb here. In
Youngstown, Congress had simply declined to enact an amendment that would
have granted the President the power to seize the steel mills in a time of national
emergency. 343 U.S. at 586. Here, Congress has explicit@ denied the President
the authority to engage in warrantless electronic surveillance of persons in the
United States, even in a time of emergency, except pursuant to FISA7sprocedures.
The Constitution provides, in mandatory language, that the President "shall take
Care that the Laws be faithfully executed." U.S. Const. art. 11, 5 3 (emphasis
added). Thus, where, as here, the President is acting with power at its "lowest
ebb," courts "can sustain exclusive Presidential control . . . only by disabling the
Congress front acting zipon the subject." Youngstown, 343 U.S. at 637-38
(Jackson, J., concurring) (emphasis added).
The Supreme Court's recent Hantdan decision powerfully reaffirmed these
principles in holding that the President had no authority to create military tribunals
that violate statutory limitations Congress had imposed in the UCMJ. 126 S. Ct. at
2786. The Court noted that "[-cv]hether or not the President has independent power,
absent congressional authorization, to convene military commissions, he may not
disregard limitations that Congress has, in proper exercise of [his] own war
powers, placed on his powers." Id. at 2774 11.23 (citing Youngstown, 343 U.S. at
637). That holding reinforced the limits on presidential power set forth in
Yozingstown. Indeed, the "[cloncentration of power puts personal liberty in peril of
arbitrary action by officials, an incursion the Constitution's three-part system is
designed to avoid." Id. at 2800 (Kennedy, J, concurring).
In the present case, there are two related reasons why the Constitution does
not disable the Congress from acting to safeguard the privacy rights and civil
liberties of Americans and others in the United States. First, Congress has acted in
an area squarely within its constitutionally assigned sphere-the protection of
persons within the United States. Second, Congress has acted to ensure that the
judiciary is able to carry out its constitutionally assigned responsibility under the
Fourth Amendment.
A. The Constitution Does Not Disable Congress From Acting To

Protect The Civil Liberties Of Americans In The United States.
Congress plainly has the authority to safeguard the rights of persons within
the United States against arbitrary executive action. To be sure, foreign
intelligence surveillance involves both domestic and international aspects, and
applies in both peacetime and wartime. But the mere fact that a law with a
domestic focus also relates to international relations or the military does not grant
the President a right unilaterally to abrogate the law. In order for Congress to be
"disabled" from acting, the asserted authority of the President must be exclusive.
Even in the areas of foreign affairs and the military, executive power is not
absolute. Indeed, Congress's authority to enact FISA is especially clear because
FISA's focus is on the protection of the privacy and civil liberties of Americans in
the United States-where legislative power is at its zenith. As the Supreme Court
recently held, "[wlhatever power the United States Constitution envisions for the
Executive in its exchanges with other nations or with enemy organizations in times
of conflict, it most assuredly envisions a role for all three branches when
individual liberties are at stake." Hamdi, 542 U.S. at 536 (emphasis added).
Implementation of the constitutional protection against unreasonable searches and
seizures, even in wartime, is likewise well within Congress's authority.
To grant the President the power to act outside of FISA, except in the rarest
of circumstances, would be extremely dangerous. It would permit the President
and the military to ignore any statute enacted to protect individual rights simply by
asserting that such action is necessary to pursue a1 Qaeda, another terrorist group,
or another foreign enemy. The authority is potentially infinite because there is no
foreseeable end to the present campaign against terrorism. And it is limitless in
scope. Although the Administration has asserted that it has limited the secret NSA
program only to communications where one party is abroad, and only where there
is a basis to believe there is a link to a particular terrorist group (a1 Qaeda), its
claimed "'inherent authority" is not so limited. Because it depends on the
President's unreviewable assertion that a duly-enacted statute impedes efforts to
combat international terrorism-even where the statute seeks to protect Americans
in this country-the authority would permit him to conduct surveillance of
domestic communications based merely on an NSA operative's determination that
the communication has some link (however indirect) with terrorism (however the
President defines it). Our Constitution does not permit such a disregard for the
roles of the other two branches of our government.
B. The Executive Cannot Disregard The Warrant Procedure

Established By Congress to Implement Americans' Fourth
Amendment Rights.
Contrary to NSA's contention, the doctrine of "constitutional avoidance"
counsels in favor of, not against, upholding FISA. That is because the Fourth
Amendment independently prohibits the Executive from disregarding the warrant
requirement as implemented by statute to protect the right of Americans to be free
from intrusive and potentially arbitrary searches and seizures. FISA "embodies a
legislative judgment that court orders and other procedural safeguards are
necessary to insure that electronic surveillance by the U.S. Government within this
country conforms to the fctndamental principles of the fourth amendment." S. Rep.
No. 95-701, at 13 (1978), as reprinted in 1978 U.S.C.C.A.N. 3973,3982.
Congress's creation of the FISC overcomes any perceived lack ofjudicial
competence, swifiness, and secrecy that might have previously deterred some
courts from enforcing the Fourth Amendment's warrant requirement in the area of
foreign intelligence surveillance. Because of FISA and the judicial process it
creates, there is no cause to recognize an exception to that warrant requirement for
the NSA program, and the Fourth Amendment provides yet another basis to uphold
Congress's power to protect the privacy rights of Americans and others in this
country.
The NSA contends that the "state secrets" privilege prevents this Court from
determining whether the NSA surveillance program violates the Fourth
Amendment. That is incorrect. The Government has already disclosed sufficient
facts about the NSA program for this Court to determine that it violates the Fourth
Amendment, even if the state secrets privilege otherwise applies. Specifically, the
Government has admitted that the NSA conducts warrantless electronic
surveillance of persons within the United States covered by the requirements of
FISA. Because (as will be shown) none of the narrow exceptions to the Fourth
Amendment's warrant requirement applies here, the publicly available facts are
sufficient to establish that the NSA program violates the Fourth Amendment.
"The basic purpose of th[e] [Fourth] Amendment . . . is to safeguard the
privacy and security of individuals against arbitrary invasion by governmental
officials." Carnarn v. iZlfilnicipal Court, 387 U.S. 523, 528 (1967). It thus forbids
"unreasonable searches and seizures," and provides that -'no !Vanants shall issue,
but upon probable cause." U.S. Const. amend IV. The warrant requirement is a
separate restriction, in addition to the requirement that all searches must be
reasonable. See Keith, 407 U.S. at 3 15. Electronic surveillance is presumptively
subject to that warrant requirement. With only a few exceptions, such surveillance
"conducted outside the judicial process, without prior approval by judge or
magistrate [is] per se unreasonable." Katz v. United States, 389 U.S. 347, 357
(1967) (emphasis added). Before FISA, the Court had not decided whether there
should be an exception to the warrant requirement for foreign intelligence (as
opposed to domestic) electronic surveillance. But the Court made clear that such
surveillance, while a necessary tool, is not "a welcome development-even when
employed with restraint and under judicial supervision" because "[tlhere is,
understandably, a deep-seated uneasiness and apprehension that this capability will
be used to intrude upon cherished privacy of law-abiding citizens." Keith, 407
U.S. at 3 12. Thus, "the broad and unsuspected governmental incursions into
conversational privacy which electronic surveillance entails necessitate the
application of Fourth Amendment safeguards." Id. at 3 13 (footnote omitted)
"Official suiveillance, whether its purpose be criminal investigation or ongoing
intelligence gathering, risks infringement of constitutionally protected privacy ...

17
Id. at 320.
Through the warrant requirement, "the Constitution requires that the
deliberate, impartial judgment of a judicial officer . . . be interposed" between the

citizen and the government. Katz, 389 U.S. at 357 (internal quotation marks
omitted; alteration in original). The Warrant Clause "is not an inconvenience to be
somehow weighed against the claims of police efficiency." Keith, 407 U.S. at 3 15.
Rather, it is "an important working part of our machinery of government, operating
as a matter of course to check the 'well-intentioned but mistakenly over-zealous
executive officers."' Id. at 3 16 (citation omitted). The central protection of the
Fourth Amendment is the "'neutral and detached magistrate."' Id. (citation
omitted). The Fourth Amendment thus "contemplates a prior judicial judgment,
not the risk that executive discretion may be reasonably exercised." Id. at 3 17
(emphasis added; footnote omitted).
The Supreme Court has recognized certain limited and specifically
enumerated exceptions to the warrant requirement. Katz, 389 U.S. at 356-57. In
Keith, however, the Court expressly rejected "the Government's argument that
internal security matters are too subtle and complex for judicial evaluation" or that
"prior judicial approval will fracture the secrecy essential to official intelligence
gathering." 407 U.S. at 320. Rather, the Court held that the President's consti-
tutional role in ensuring domestic security "must be exercised in a manner
compatible with the Fourth Amendment," which '-requires an appropriate prior
warrant procedure." Id. The Court was concerned that "unreviewed executive
discretion may yield too readily to pressures to obtain [intelligence information]
and overlook potential invasions of privacy and protected speech." Id. at 3 17. As
the Court explained, "[s]ecurity surveillances are especially sensitive because of
the inherent vagueness of the domestic security concept, the necessarily broad and
continuing nature of the intelligence gathering, and the temptation to utilize such
surveillances to oversee political dissent." Id. at 320.
To be sure, Keith left open whether there might be a basis for an exception
to the warrant requirement where electronic surveillance is conducted of foreign
powers or their agents for foreign intelligence purposes. Since then, the Supreme
Court has not taken up the issue, and the lower courts divided on the question.
Courts directly addressing the question recognized such an exception in limited
circumstances. See United States v. Truong, 629 F.2d 908, 916 (4th Cir. 1980);
United States v. Btitenko, 494 F.2d 593 (3d Cir. 1974) (en banc); United States v.
Brovvn, 484 F.2d 418 (5th Cir. 1973). But in Zweibon v. Mitchell, 5 16 F.2d 594
(D.C. Cir. 1975) (en banc), a plurality of the D.C. Circuit rejected the notion that
electronic surveillance for foreign intelligence purposes can be conducted without
a warrant.
The very existence of FISA, and the judicial procedures it establishes, "moot
the debate," H.R. Rep. No. 95-1283, pt. I, at 34, by demonstrating concIusiveiy
that there is no basis for an exception to the warrant requirement in these
circumstances, and therefore no inherent authority in the Executive to disregard
Congress's warrant procedures. Any exception may be justified only by
"compelling" reasons, ~Winceyv. Arizona, 437 U.S. 385, 394 (1978), and no such
reasons exist after FISA. The pre-FISA cases finding an exception are simply
inapplicable in a post-FISA world. Those cases balanced the President's interest in
protecting the national security from foreign threats against the impediment of
seeking prior judicial approval for electronic surveillance from a district court
unfamiliar with and possibly unsuited to foreign intelligence issues. See, e.g.,
Trrrong, 629 F.2d at 912-916; Bzltenko, 494 F.2d at 605. But because these cases
involved surveillance conducted before FISA, they did not weigh the requirement
that the Executive go to a specialized court with streamlined procedures, and strict
secrecy, to seek a warrant before engaging in such electronic surveillance. In fact,
Congress eliminated the very concerns the pre-FISA courts cited to justif-'y
excusing the President from having to seek prior judicial authorization for foreign
intelligence surveillance were addressed and eliminated by Congress when it
created the FISC.
Indeed, the need to apply the warrant requirement to the electronic
sumeillance involved in the NSA program is particularly pronounced, because the
targets of secret foreign intelligence surveillance will seldom, if ever, become
aware of the surveillance unless they are subsequently indicted for a criminal
offense. Thus, judicial review of the surveillance will rarely occur. In the
domestic criminal context, the target must be given notice of the search upon the
expiration of an order authorizing electronic surveillance. See 18 U.S.C. 5

25 18(8)(d). As the Supreme Court has noted, these notice procedures "satisfy
constitutional requirements." See LTnitedStates v. Donovan, 429 U.S. 41 3,429
n. 19 (1977) (citing, inter alia, l t z , 389 U.S. at 355-56). In contrast, the only
privacy protections that targets of secret foreign surveillance are afforded from
executive overreaching are FISA's minimization procedures and the judicial
guardianship of the FISC. See 50 U.S.C. 5 1805(a)(4); 50 U.S.C. $ 1801(h);
United States v. BelJield, 692 F.2d 141, 148 (D.C. Cir. 1982) ("In FISA the privacy
rights of individuals are ensured not through mandatory disclosure [of surveillance
logs], but through its provisions for in-depth oversight of FISA surveillance by all
three branches of government and by a statutory scheme that to a large degree
centers on an expanded conception of minimization that differs fiom that which
governs law-enforcement surveillance"). The NSA's program eliminates both of
these safeguards and, instead, substitutes the discretion of KSA operatives. It is
therefore critical that such secret surveillance be subject to a warrant requirement
so that a court can assure the existence of probable cause, the reasonableness of
these searches, and that minimization safeguards are implemented. bloreo\ier, the
disclosure that under the NSA program surveillance may be initiated without a
judicial finding of probable cause hrther demonstrates that, irrespective of the
state secrets privilege, sufficient facts are available to determine that the program
violates the Fourth Amendment.
Additionally, the fact that, absent a criminal prosecution, foreign intelligence
searches are permanently secret makes them different from the "special needs"
cases cited by NSA as support for warrantless searches, In "special needs
situations the person who is searched knows that he has been searched and knows
the information that may have been disclosed. See, e.g., Vernonia School District
47Jv. Acton, 515 U.S. 646, 664-65 (1995) (upholding drug-testing for students
participating in school athletics program); Michigan Dep 't of State Police v. Sitz,
496 U.S. 444,449-55 (1990) (upholding checkpoint to screen for drunk drivers).
The person, therefore, has the ability to challenge the search and vindicate his
Fourth Amendment rights. See United States v. Martinez-F'uerte, 428 U.S. 543,
559 (1976) (finding that "[rloutine checkpoint stops" were reasonable because "a
claim that a particular exercise of discretion in locating or operating a checkpoint is
unreasonable is subject to post-stop judicial review.").
Furthermore, individuals subjected to "special needs" searches may use
other methods to remedy negative consequences of the search, such as seeking to
expunge or clarifv the seized information. Individuals subjected to secret
electronic surveillance have no such opportunity, see 5 U.S.C. 5 552a(k)(l)

(exempting properly classified material from disclosure under the Privacy Act of
1974), even though electronic surveillance reveals significantly more personal
information than special needs searches, and that information may be retained in
various government files and used to the detriment of the person searched in
various ways.
In considering whether there is an exception to the presumptive warrant
requirement, it is proper for this Court to look to Congress's judgment to determine
that current circumstances compel no such exception. Cf United States v. Watson,
423 U.S. 41 1,415 (1976). Indeed, the Supreme Court encouraged Congress to
impose procedures for obtaining a warrant for electronic surveillance for domestic
security threats. See Keith, 407 U.S. at 324 (requiring "prior judicial approval . . .
of domestic security surveillance . . . as the Congress may prescribe").

Thus, all the factors potentially counseling against requiring the President to
seek prior judicial approval for foreign intelligence surveillance by a federal
district court are absent when the President can seek such approval from the FISC.
I3y contrast, the concern that the Executive can and will infringe, even
inadvertently, on the privacy and free speech rights of Americans is ever constant.
The potential for abuse of civil liberties is particularly acute in the realm of foreign
intelligence gathering because the perceived stakes are higher, the Executive acts
with the utmost secrecy, and foreign intelligence officers are less accustomed than
law enforcement officers to the privacy concerns presented by the Fourth
Amendment. The warrant requirement exists precisely so that neutral and
detached magistrates will ensure that executive officers in fact possess probable
cause for a contemplated search and that the search is appropriately limited. The
NSA's secret, warrantless program lacks these critical protections. And because of
the secrecy of the program, there is no way for anyone to know if probable cause
exists and the search is reasonable.
Not only are the very persons who may be impinging on the privacy rights
of Americans unilaterally judging the reasonableness of their own actions, they
have, until recently, done so without any public knowledge or scrutiny of their
activities. But even assuming for the sake of argument that these intelligence
officers are safeguarding personal liberties with the greatest of care, the
Constitution still requires prior review of their judgments by a disinterested
magistrate. See Katz, 389 U.S. at 356 ("It is apparent that the agents in this case
acted with restraint. Yet the inescapable fact is that this restraint was imposed by
the agents themselves, not by a judicial officer."). "[A] governmental search and
seizure should represent both the efforts of the officer to gather evidence of
wrongfiil acts and the judgment of the magistrate that the collected evidence is
sufficient to justify invasion of a citizens' private . . . conversation[s]." Keith, 307
U.S. at 3 16. When the disinterested judgment of the neutral magistrate is
eliminated, all that is left is "unreviewed executive discretion." Id. at 3 17.
The Fourth Amendment thus undergirds and reinforces FISA's requirement
that the government obtain a warrant in order to engage in foreign intelligence
surveillance of persons in the United States. Any concerns potentially counseling
against enforcing the warrant requirement in the foreign intelligence realm have
been absent for the better part of thirty years, and the threat to individual liberties
by an unchecked Executive is, if anything, magnified in the current environment.
Accordingly, there is no basis for determining that the President has inherent
authority to disregard the warrant requirement enacted by Congress to safeguard
the Fourth Amendment rights of persons in the United States.
CONCLIJSION
The district court should be affirmed.
Resge~tfullysubmitted,
Kate Martin
CENTER FOR NATIONAL SECURITY
STUDIES 60 1 Thirteenth Street N.W.
1120 19th Street, N.W., S. 800 Washington, DC 20005
Washington, DC 20036 Suite 1200 South
(202) 721-5650 (202) 639-6095
Joseph Onek Erin N. Linder

Sharon Bradford Franklin JENNER & BLOCK LLP
THE CONSTITUTION PROJECT 330 N. Wabash Avenue
1025 Vermont Avenue, N.W. Chicago, IL 606 11
Washington, DC 20005 (3 12) 222-9350
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November 17,2006 Counsel for Am ici Curiae
CERTIFICATE OF COMPLIANCE WITH

FED. R.APP. P. 32(a)(7)(C) AND 6th CIRCUIT RULE 32(a)
I hereby certify, pursuant to Fed. R. App. P. 32(a)(7)(C) and 6th Circuit Rule
32(a), that the foregoing brief is proportionally spaced, has a typeface of Times
New Roman 14 point and contains 6,829 words (which does not exceed the
applicable 7,000 word limit).

A
I hereby cedi@ that on this 17th day of November 2006, I caused two copies
of the foregoing Brief to be sewed on the parties below via first class mail, postage
pre-paid:
Ann Beeson
Jameel Jaffer
Michael J.Steinberg
Melissa Goodman
Kary L. Moss
American Civil Liberties Union Fund
American Civil Liberties Union
of Michigan
Foundation
Detroit, MI 48201 - 1343 New York, NY 10004-2400
Randy Gainer Douglas N. Letter

Davis Wright Tremaine LLP Thomas N. Bondy
1501 Fourth Avenue, Suite 2600 Anthony A. Yang
Seattle, WA 98 101- 1688 Attorneys, Appellate Staff
Civil Division, Room 75 13
950 Pennsylvania Avenue, NW
Nos. 06-2095, 06-2140

________________________________________________________________________
________________________________________________________________________

AMERICAN CIVIL LIBERTIES UNION, et al.,

Plaintiff-Appellees/Cross-Appellants
v.

Defendant-Appellants/Cross-Appellees
______________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN
______________________
BRIEF OF AMICUS CURIAE THE REPORTERS COMMITTEE

FOR FREEDOM OF THE PRESS IN SUPPORT OF PLAINTIFF-
APPELLEES/CROSS-APPELLANTS URGING PARTIAL
AFFIRMANCE ENJOINING WARRANTLESS SURVEILLANCE
Lucy A. Dalglish, Esq.

Counsel of Record
Gregg P. Leslie, Esq.
Elizabeth J. Soja, Esq.
1101 Wilson Blvd., Suite 1100
Arlington, VA 22209-2211
(703) 807-2100
Attorneys for Amicus Curiae The Reporters
Committee for Freedom of the Press
______________________________________________________________________________
______________________________________________________________________________
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
STATEMENT OF INTEREST OF THE AMICUS CURIAE....................................1
SUMMARY OF ARGUMENT .................................................................................2
ARGUMENT .............................................................................................................3
I. The warrantless surveillance program prevents journalists from engaging

in effective newsgathering by prohibiting them from making good faith
promises of confidentiality to their international sources............................3
A. By preventing journalists from making any promises of confidentiality

to international sources in times of increased secrecy, the government
makes newsgathering highly difficult and often impossible in the
most serious and most important of stories...........................................3
B. The United States government has long recognized the need for
confidentiality in newsgathering in a manner that is inconsistent with
the NSAs warrantless surveillance program........................................7
II. International sources who could face serious repercussions, including

torture and death, in their countries for communicating with the U.S. press
will not come forward if they fear they will be identified........................ 12
CONCLUSION....................................................................................................... 19
Cases:
Laird v. Tatum, 408 U.S. 1 (1972)........................................................................ 6, 7
Jameel v. Wall Street Journal Europe, 2006 U.K.H.L. 44 ..................................... 16
New York Times Co. v. Gonzales, 382 F.Supp.2d 457 (S.D.N.Y. 2005)................ 10
Statutes:
28 C.F.R. 50.10 (2003) ...........................................................................................8
Intelligence Community Whistleblower Protection Act, Pub. L. 105-272, Title VII,

112 Stat. 2413 (1998) .......................................................................................... 13
Iraqi Penal Code, 3rd ed., Ch. 3 1:225-226 (1969, 2006).............................. 14, 15
Other Authorities:
BBC Country Profiles, http://news.bbc.co.uk/2/hi/ country_ profiles/default.stm

(Aug. 2006).......................................................................................................... 15
Brenner A. Allen, A Cause of Action Against Private Contractors and the U.S.
Government for Freedom of Speech Violations in Iraq, 31 N.C. J. INT'L L. &
COM. REG. 535, 548-549 (2005).......................................................................... 14
Committee to Protect Journalists, Journalists killed: Jan. 1, 1992-Aug. 15, 2006,

www.cpj.org/killed/killed_archives/stats.html (accessed Nov. 16, 2006) .......... 18
Committee to Protect Journalists, Iraq: Journalists in Danger A statistical profile

of journalists killed on duty since March 2003, www.cpj.org/Briefings/Iraq/
Iraq_danger.html (accessed Nov. 16, 2006)........................................................ 18
Ann Cooper, Letter to His Excellency Nouri Kamal al-Maliki, Prime Minister of
Iraq, regarding press freedom recommendations, June 6, 2006,
www.cpj.org/protests/ 06ltrs/mideast/iraq06june06pl.html .......................... 13, 14
ii
James Dorsey, Saudi Officials Monitor Certain Bank Accounts: Focus Is on Those
With Potential Terrorist Ties, WALL ST. J. EUROPE, Feb. 6, 2002 at 1............... 16
Free Flow of Information Act of 2006, H.R. 3323, 109th Cong. (2006) ........... 8, 11
Free Flow of Information Act of 2006, S.B. 2831, 109th Cong. (2006) ............ 8, 11
Free Press News Service, Abducted Writer Dead; U.S., Pakistan Say Videotape
May Show His Execution, DETROIT FREE PRESS, Feb. 22, 2002 at A1 ............... 17
Meredith Fuchs, Judging Secrets: The Role Courts Should Play in Preventing
Unnecessary Secrecy, 58 ADMIN. L. REV. 131, 135 (2006)...................................4
Lisa Kloppenberg, Disclosure of Confidential Sources in International Reporting,

60 S. Cal. L. Rev. 1631, 1660 (1987).....................................................................3
National Press Club Newsmaker Luncheon with Senator Richard Lugar (R-Ind.)
and Representative Mike Pence (R-Ind.), Transcript, Federal News Service, Inc.,
July 25, 2006...........................................................................................................7
OpenTheGovernment.org, Secrecy Report Card 2006: Indicators of Secrecy in

Federal Government, 2006 at 3 (based on chart, Classification Activity
Remains High) ......................................................................................................4
Dana Priest, CIA Holds Secret Terror Suspects in Secret Prisons, WASH. POST.,
Nov. 2, 2005 at A1............................................................................................... 12
Plaintiff-Appellees/Cross Appellants brief at 18-19 ................................................6
The Reporters Committee for Freedom of the Press, Reporters Privilege

Compendium, www.rcfp.org/privilege/index.html (2002).................................. 10
Reporters Privilege Legislation: Preserving Effective Federal Law Enforcement:

Hearings Before the Senate Comm. on the Judiciary, 109th Cong. (2006) (Sept.
20, 2006 written testimony of Sen. Patrick Leahy (D-Vt.))................................ 11

20, 2006 testimony of Paul J. McNulty) ......................................................... 9, 13
iii

20, 2006 testimony of Theodore B. Olson) ......................................................... 11
Reporters Without Borders, 2006 Annual Report (2006)................................. 13, 14
Reporters Without Borders, Worldwide Press Freedom Index,

www.rsf.org/article.php3?id_article=19385 (2006)............................................ 14
Testimony of Dorsey, Day 7 Trial Transcript at 1141, Jameel v. Wall Street

Journal, 2006 U.K.H.L. 44.................................................................................. 16
Time for a Federal Shield Law, N.Y. TIMES, Jul. 21, 2005 at A28 ........................ 10
Paul von Zielbauer, Sahar Nageeb and an Iraqi employee of the N.Y. Times, Iraqi
Journalists Add Laws to Their List of Wars Dangers, N.Y. TIMES, Sept. 29,
2006 at A12 ......................................................................................................... 17
iv
STATEMENT OF INTEREST OF AMICUS CURIAE
The Reporters Committee for Freedom of the Press (The Reporters
Committee) is a voluntary, unincorporated association of reporters and
editors that works to defend the First Amendment rights and freedom of
information interests of the news media. The Reporters Committee has
provided representation, guidance and research in First Amendment and
freedom of information litigation in state and federal courts since 1970.
The interest of amicus in this case is ensuring both the free flow of
information and the safety of journalists and their sources, especially in times
of international conflict. If the National Security Agency is permitted to
continue its practice of warrantless surveillance of American citizens
communications, journalists will no longer be able to offer good faith
promises of confidentiality to their international sources. In the absence of
these promises, sources who could face punishment if their communications
are revealed will refuse to speak.
All parties have consented to the filing of this brief.
1
SUMMARY OF ARGUMENT
A free press is an essential element of any democracy, and a
journalists ability to communicate with his or her sources is an essential
element of a free press. It is irrelevant whether the journalists who brought
this action are actually targets of government surveillance. If any journalist
strongly and legitimately suspects that his or her communications with a
source are being intercepted by a third party, that journalist simply cannot
promise confidentiality in good faith to an international source when that
source could face torture or death if the communication is revealed.
The National Security Administrations (NSA) warrantless
surveillance program (the Program) prevents the journalists who cover
foreign and national security issues from investigating important news stories
by preventing them from making good faith promises of confidentiality when
the journalists legitimately believe that their communications are being
overheard by a third party. The Program ignores the United States long-
recognized commitment to the free flow of information and disregards the
dangers posed to international sources who communicate with the media
about issues of national security.
2
ARGUMENT
I. The warrantless surveillance program prevents journalists from

engaging in effective newsgathering by prohibiting them from
making good faith promises of confidentiality to their international
sources.
A. By preventing journalists from making any promises of

confidentiality to international sources in times of increased
secrecy, the government makes newsgathering highly
difficult and often impossible in the most serious and
most important of stories.
The press continues to be a vital check on the government and on
excessive government secrecy. The purpose of a free press is not to protect
the journalist, or even the journalists source; rather, a free press protects the
citizens of the United States from the dangers of foreign and domestic secrecy.
A journalists right to gather news and report on important issues is
indistinguishable from the publics right to know about and understand those
issues. An informed electorate helps to ensure a healthy democracy, and the
free flow of important information is vital to any population that must choose
its leaders at the polls. Information about the United States role in world
affairs and the impact of international events on American life needs to be
fostered for the public interest. See Lisa Kloppenberg, Disclosure of
Confidential Sources in International Reporting, 60 S. CAL. L. REV. 1631,
1660 (1987). The press must meet the informational needs of the public by
responding to the global interdependence and serve as the global eyes and
3
ears of the American public overseas. The press has the resources and
technology to compile facts and investigate international events in a way
which private citizens cannot. Id. at 1661.
As government secrecy increases, the publics need to obtain
information from journalists and their sources grows as well. While the
previous presidential administration classified approximately 7 million
documents per year, the current administration classifies an average of
approximately 12 million per year. See OpenTheGovernment.org, Secrecy
Report Card 2006: Indicators of Secrecy in Federal Government, 2006 at 3
(based on chart, Classification Activity Remains High). The United States
government has also extended its use of the mosaic theory of intelligence
gathering to a level never before seen that is, the theory that innocuous
bits of information can be combined to pose a risk to national security and
therefore qualify for classification. See Meredith Fuchs, Judging Secrets:
The Role Courts Should Play in Preventing Unnecessary Secrecy, 58 ADMIN.
L. REV. 131, 135 (2006).
While journalists are not elected, appointed, or certified by the
government, they are still subject to two rigorous standards of accountability
the trust of the public and the trust of their sources. When reporters risk
misinforming the public or betraying a source, they risk losing their
4
livelihood. A journalists power to check the government lies not in
adherence to rigid guidelines but in a publicly recognized dedication to the
truth and a commitment to keeping to his or her word.
When the United States government prevents a specific group of
journalists those who report on national security issues from making
promises of confidentiality in good faith to their international sources, the
government strangles the newsgathering process and tramples on the free
flow of important newsworthy information. As discussed infra, foreign
sources especially those in the Middle East today can face prison, torture
and even death for speaking to the media. If a journalist legitimately suspects
that he or she may be subject to warrantless surveillance, that journalist
cannot make a good faith promise that a communication will be kept
exclusively between the parties, especially when one party could face terrible
consequences for disclosure.
Given these potential consequences, sources simply cannot afford to
speak absent a promise of anonymity. This effectively disallows confidential
source newsgathering on matters of national security and severely restricts the
way in which national security reporters may gather the news. This, in turn,
restricts publics right to know about and understand issues of vital
importance to the countrys security.
5
The harm faced by journalists and their sources is not merely
speculative. See generally Laird v. Tatum, 408 U.S. 1 (1972) (holding that
plaintiffs claim that the knowledge collected by government surveillance
could one day be used to harm plaintiffs was too speculative and non-ripe).
The harm here, rather, is current and concrete. See, e.g., SUF 15E & R.4 Ex.
K, McKelvey Decl. para 14-16. (stating that journalist McKelveys inability,
because of the NSA Program, to assure anonymity or privacy to the
individuals I need to interview, many of whom are frightened of the United
States government and military, has prevented me from obtaining information
from some of these individuals). This is not a situation, as in Laird, of a
speculative apprehensiveness that the [government] may at some future date
misuse the information in some way that would cause direct harm to the
journalists. Laird, 408 U.S. at 6; see also Brief for the Appellees at 18-19.
The Program actively harms the journalists by preventing them, across the
board, from making any good faith promises of confidentiality to international
sources.
Because foreign insult laws, discussed infra, mandate prison or worse
for journalists and sources who speak against the government, foreign sources
will not come forward with important information absent a promise of
confidentiality. These foreign laws do not merely punish incorrect or
6
fabricated information they also punish the truth. This is not a case, as in
Laird, of journalists leaving somewhat unclear the precise connection
between the mere existence of [a] challenged system and their own alleged
chill. Rather, the harm to journalists and their sources here is real and
identifiable. See Laird, 408 U.S. at 6.
B. The United States government has long recognized the need

for confidentiality in newsgathering in a manner that is
inconsistent with the NSAs warrantless surveillance
program.
Government officials at the highest levels have recognized the
fundamental link between democracy and confidential newsgathering. Sen.
Richard Lugar (R-Ind.) said in a July 2006 speech that spreading democracy
abroad has become a pillar of United States foreign policy and that the
example of press freedom that we set in this country is an important beacon
to guide other nations as they try to make the transition from autocratic forms
of government. See Transcript, National Press Club Newsmaker Luncheon
with Senator Richard Lugar (R-Ind.) and Representative Mike Pence (R-Ind.),
Federal News Service, Inc., July 25, 2006. Lugar, who co-sponsored the most
recent version of a federal shield law for journalists, emphasized that
restricting the manner in which appropriate news is gathered is tantamount to
restricting the information that the public has a right to hear. Id; see also
7
Free Flow of Information Act of 2006, S.B. 2831, 109th Cong. (2006)
(proposed shield law legislation stating that journalists should have a
qualified privilege to refuse to testify in court about the identity of their
confidential sources unless certain factors are met); see also H.R. 3323, 109th
Cong. (2006).
In addition, the United States has many long-standing, specific media
protections that demonstrate the countrys commitment to a free press and the
importance of a journalists promise of confidentiality. The U.S. Department
of Justice (DOJ) recognizes the importance of source confidentiality by
employing specific guidelines that govern all subpoenas to and interactions
with the news media. These guidelines protect the publics right to know by
protecting a journalists freedom to report. See generally 28 C.F.R. 50.10
(2003). The guidelines say that [b]ecause freedom of the press can be no
broader than the freedom of reporters to investigate and report the news, the
prosecutorial power of the government should not be used in such a way that
it impairs a reporters responsibility to cover as broadly as possible
controversial public issues. 28 C.F.R. 50.10(a) (2003). Affirming the
principle of public protection through open newsgathering, DOJ employees
are required to strike the proper balance between the publics interest in the
8
free dissemination of ideas and information and the publics interest in
effective law enforcement and the fair administration of justice. Id.
Although the DOJ officially opposes a federal reporters shield law that
would allow journalists to refuse to testify about their confidential sources in
court in some circumstances, DOJ representatives have publicly affirmed that
confidential source newsgathering is vital to a healthy press. For example, in
testimony before the Senate Judiciary Committee regarding the Free Flow of
Information Act of 2006, Deputy Attorney General Paul McNulty said that
the United States is fully capable of both protecting our security and
preserving the medias right to engage in robust reporting on controversial
issues. Security and free speech are not mutually exclusive. See Reporters
Privilege Legislation: Preserving Effective Federal Law Enforcement:
Hearings Before the Senate Comm. on the Judiciary, 109th Cong. (2006)
[hereinafter Shield Law Hearings] (Sept. 20, 2006 testimony of Paul J.
McNulty). He also added that the DOJ continue[s] to regard journalists as a
source of last resort. Id. The NSA, by intercepting communications without
a warrant, is effectively regarding journalists as a source of first resort.
The most prominent indicator of government protection of confidential
source reporting is the number of current and proposed shield laws in the
United States. Thirty-two states and the District of Columbia have shield law
9
statutes that specifically protect a journalist from having to disclose his or her
confidential sources. See New York Times Co. v. Gonzales, 382 F.Supp.2d
457, 502 (S.D.N.Y. 2005) (listing all U.S. state shield laws, except for the
new shield law in Connecticut, Pub. Act No. 06-140 (2006)); see also The
Reporters Committee for Freedom of the Press, Reporters Privilege
Compendium, www.rcfp.org/privilege/index.html (2002). The courts in 16 of
the 18 remaining states have recognized some kind of protection for
journalists. See Gonzales, 382 F.Supp.2d at 503 (listing case law in those
states that confers this protection). While there is currently no federal shield
law, attempts to pass such a law have spanned three decades and bipartisan
support for the guiding principle has been unwaveringly strong. See, e.g.,
Time for a Federal Shield Law, N.Y. TIMES, Jul. 21, 2005 at A28 (addressing
Republican and Democratic lawmakers testify[ing] together about the
need for the federal government to follow the lead of 49 states and guarantee
that journalists are allowed the right to protect the names of confidential
sources).
During 2006 Senate Judiciary Committee hearings regarding the latest
proposed shield law, The Free Flow of Information Act of 2006, bipartisan
proponents spoke forcefully about the need to uphold the free press by
protecting source confidentiality. See generally S.B. 2831, 109th Cong.; H.R.
10
3323, 109th Cong. (2006). Despite the current administrations opposition to
the law, George W. Bushs former Solicitor General Theodore Olson testified
in support of the law. He said that journalists who are working to uncover
stories that would otherwise go untold simply cannot function effectively
without offering some measure of confidentiality to their sources. Shield
Law Hearings (Sept. 20, 2006 testimony of Theodore B. Olson).
In a written statement prepared for the same occasion, Sen. Patrick
Leahy (D-Vt.) said that investigative journalism based on confidential
sources has been critical in exposing to scrutiny many important news stories,
including missteps by the Bush administration. Shield Law Hearings (Sept.
20, 2006 written testimony of Sen. Patrick Leahy (D-Vt.)). What
investigative journalism tells us, he continued, is often not welcome news
think of the pictures at Abu Ghraib. But it is precisely the news that the
people of a democracy need to make informed choices. Id.
The United States recognition of the importance of source protection
to press freedom is not unique among free nations. In 1996, the European
Court of Human Rights declared:
Protection of journalistic sources is one of the basic conditions for press

freedom. Without such protection, sources may be deterred from
assisting the press in informing the public on matters of public interest.
As a result the vital public watchdog role of the press may be
11
undermined and the ability of the press to provide accurate and reliable
information may be adversely affected.
Goodwin v. United Kingdom, 22 E.H.R.R. 123, 143 (1996).
II. International sources who could face serious repercussions,

including torture and death, in their countries for communicating
with the U.S. press will not come forward if they fear they will be
identified.
Although the NSA may not intend to directly imperil confidential
sources, journalists and their sources have no way of knowing with which
foreign governments U.S. intelligence agencies have agreed to share
information. See, e.g., Dana Priest, CIA Holds Secret Terror Suspects in
Secret Prisons, WASH. POST., Nov. 2, 2005 at A1 (reporting that fighting the
war on terror depends on the cooperation of foreign intelligence services.
Those cooperating foreign countries remained unnamed in Priests Pulitzer
Prize-winning article).
American journalists and many of their foreign sources who would talk
to them are often in grave danger due to the lack of legal protections in other
countries. Unlike dissenters and whistleblowers in the United States, those in
other countries who wish to expose the illegal or irresponsible policies,
corruption or wrongdoing within their government or elsewhere have few
options if they choose to take action.
12
In his testimony before the Senate Judiciary Committee, Assistant
Attorney General McNulty referenced the fact that in the United States, some
sources have recourse under the law to blow the whistle on unsatisfactory
government activity before talking to the news media in some circumstances.
See Shield Law Hearings (Sept. 20, 2006 testimony of Paul J. McNulty). He
referred to the Intelligence Community Whistleblower Protection Act of 1998,
which allows some sources to voice dissatisfaction or blow the whistle on
the government as an alternative to going directly to the news media. Id.; see
also Intelligence Community Whistleblower Protection Act, Pub. L. 105-272,
Title. VII, 112 Stat. 2413 (1998). Would-be whistleblowers in many foreign
countries particularly in the Middle East do not have this type of
protection as a first resort, so the journalists role is even more important.
Additionally, when a countrys own news media is being intimidated
into partiality (and often into disappearance), United States-based journalists
can become a whistleblowers only recourse. For example, Iraqi news outlets
are plagued by constant acts of censorship, criminal prosecutions of
journalists, intimidation, and physical threats against the media by Iraqi
officials not to mention acts of violence. See Ann Cooper, Letter to His
Excellency Nouri Kamal al-Maliki, Prime Minister of Iraq, regarding press
freedom recommendations, June 6, 2006, www.cpj.org/protests/06ltrs
13
/mideast/ iraq06june06pl.html (accessed Nov. 16, 2006). The American
military presence in Iraq has not remedied the situation; newspaper offices
and television stations that offer alternatives to the American message have
reportedly been destroyed and shut down by Westerners. See, e.g., Brenner A.
Allen, A Cause of Action Against Private Contractors and the U.S.
Government for Freedom of Speech Violations in Iraq, 31 N.C. J. INT'L L. &
COM. REG. 535, 548-549.
In some cases, foreign governments do more than simply fail to give
dissenting insiders a way to air their grievances; they punish those who would
speak against the government. See, e.g., Iraqi Penal Code, 3rd ed., Ch. 3
1:225-226 (1969, 2006) (stating that anyone who publicly insults a
government official can be sent to prison for up to seven years). According to
the non-profit research group Reporters Without Borders, Iraq, Iran, Pakistan
and Saudi Arabia all rank in the bottom 10 percent in the nonprofits annual
ranking of press-friendly countries; Afghanistan, Israel, the Palestinian
Authority, Egypt and Syria all ranked in the bottom 25 percent. See Reporters
Without Borders, Worldwide Press Freedom Index, www.rsf.org/article.
php3?id_article=19385 (2006). In their 2006 annual report, Reporters
Without Borders cautioned that [i]n Iran, prison often means torture as well.
In Algeria, just a cartoon can land its author in jail. See Reporters Without
14
Borders, 2006 Annual Report at 135 (2006). The group also reported that
governments in Libya, Iran, Syria, Tunisia and Saudi Arabia have total
control over news within their borders and are among the worlds most
repressive regimes. Id.
Laws outlawing government insult are not written to apply specifically
to journalists, so they pose dangers to journalists and their sources alike.
Iraqs current criminal code the same code that was used under Saddam
Hussein mandates that anyone who publicly insults a government official,
government program or the armed forces can be sent to jail for seven years.
See Iraqi Penal Code, 3rd ed., Ch. 3 1:225-226 (1969, 2006). Speaking
against any foreign government or even a corporation that has an office in
Iraq can result in a two-year jail sentence. Id. at 227.
According to the British Broadcasting Corp. (BBC), Algeria and
Egypt also have laws that mandate a prison sentence for defaming
government officials and criticism of government officials is banned in, inter
alia, Saudi Arabia, Syria, and Bahrain. See BBC Country Profiles,
http://news.bbc.co.uk/2/hi/ country_ profiles/default.stm (Aug. 2006).
Kuwaiti journalists can be imprisoned for referencing God and the prophet
Mohammed in publications. Id.
15
In the recent British case Jameel v. Wall Street Journal Europe, a
Middle East-based reporters story was the subject of a libel lawsuit against
the Wall Street Journal Europe. See Jameel v. Wall Street Journal Europe
2006 U.K.H.L. 44; see also James M. Dorsey, Saudi Officials Monitor
Certain Bank Accounts: Focus Is on Those With Potential Terrorist Ties,
WALL ST. J. EUROPE, Feb. 6, 2002 at 1. The reporter, James Dorsey, testified
in court about the dangers of reporting on and from the Middle East. He
recounted that in January 2002, he attended a dinner in Saudi Arabia and later
wrote a story about a Muslim religious minority.
[O]ne of the people I spoke to was arrested and, to the best of my

knowledge, sentenced to prison for seven years Other people were
present at that dinner. The person who was arrested and imprisoned
was actually willing to speak to me on the record and, therefore, was
quoted in the story. There were other people at that dinner who were
not reflected in my story in any form or fashion, and my understanding
is that they too were at least detained for periods of time.
See Testimony of Dorsey, Day 7 Trial Transcript at 1141, Jameel v. Wall
Street Journal, 2006 U.K.H.L. 44. Dorsey added that the experience
reinforced my conviction, and it was blatantly clear that I needed to be as
protective as I could for my sources, particularly if that was a request that had
been put to me. Id.
In September 2006, The New York Times highlighted in both form
and content the difficulties foreign journalists and sources face under a set
16
of restrictive speech laws. See Paul von Zielbauer, Sahar Nageeb and an Iraqi
employee of the N.Y. Times, Iraqi Journalists Add Laws to Their List of
Wars Dangers, N.Y. TIMES, Sept. 29, 2006 at A12. The article, as published,
was attributed to an anonymous Iraqi employee of The New York Times. Id.
According to a source in the article who also spoke on condition of
anonymity, journalists and those with whom they work are taking fire from
every direction. Theyve got the defamation law hanging over their heads.
Theyve got their political opponents gunning for them. Id. The article also
noted that news organizations have been asked to sign a pledge to produce
news that promotes the governments vision of unity. An Iraqi media official
was quoted as saying that the government has the right, as it combats
terrorism, to silence any voice that tries to harm the national unity. Id.
The consequences of both whistleblowing and reporting can go even
beyond prison and torture. The American public will not soon forget the
violent murder of Wall Street Journal reporter Daniel Pearl, who was
kidnapped in Pakistan on his way to meet a source who had ties to al Qaeda.
See, e.g., Free Press News Service, Abducted Writer Dead; U.S., Pakistan Say
Videotape May Show His Execution, DETROIT FREE PRESS, Feb. 22, 2002 at
A1. Pearls death highlighted for the American public the dangers that
journalists and their sources are currently facing abroad. Pearl is not alone; at
17
least 138 journalists have been killed in the Middle East since 1992. See
Committee to Protect Journalists, Journalists killed: Jan. 1, 1992Aug. 15,
2006, www.cpj.org/killed/killed_ archives/stats.html (accessed Nov. 16,
2006). More journalists have been killed in Iraq in the past 15 years than in
any other country. Id. As of November 2006, the Committee to Protect
Journalists (CPJ) reported that 86 journalists of various nationalities have
been killed in just Iraq since March 2003. See Committee to Protect
Journalists, Iraq: Journalists in Danger A statistical profile of journalists
killed on duty since March 2003, www.cpj.org/ Briefings/Iraq/
Iraq_danger.html (accessed Nov. 16, 2006). More than half of these deaths
were murders. Id.
CPJ does not keep statistics on those who act as the journalists sources
in foreign countries, but the animosity and violence towards journalists
unquestionably extends to their sources as well. When an American
journalist cannot offer his or her source a good faith promise of
confidentiality in an overseas communication, that source must, in some cases,
decide whether or not to gamble his or her life. If a source cannot take that
gamble, the journalist must then make a difficult choice travel overseas and,
like Pearl, meet with sources in person, or remain silent and let the story go
unwritten.
18
CONCLUSION
The NSAs warrantless surveillance program is contrary to the United
States democratic commitment to freedom of the press. Given the prohibitive
speech laws in foreign countries most notably the Middle East and the real
dangers that threaten journalists and their sources, American journalists must
be able to make good faith promises of confidentiality to their international
sources. The NSAs warrantless surveillance program prohibits journalists
from making these promises to individuals who could face grave punishment
for speaking with members of the news media.
For these and the foregoing reasons, amicus curiae urges this court to
affirm the district court's judgment insofar as it enjoined the NSA's
warrantless wiretapping program.
_____________________________
Lucy A. Dalglish, Esq.
Counsel of Record
Gregg P. Leslie, Esq.
Elizabeth J. Soja, Esq.
1101 Wilson Blvd., Suite 1100
Arlington, VA 22209-2211
(703) 807-2100
Attorneys for Amicus Curiae

The Reporters Committee for Freedom
of the Press
Date: November 17, 2006
19
CERTIFICATE OF COMPLIANCE WITH

Fed.R.App.P. 32(a)(7)(B)
I hereby certify that pursuant to Fed.R.App.P. 32(a)(7)(B), the

following brief is proportionally spaced, has a typeface of 14-point Times
New Roman, and contains 3,973 words according to the word count of the
word processing system (Microsoft Office Word 2003) used to prepare this
brief.
___________________________________
Lucy A. Dalglish
20
I certify that on November 17, 2006, an original and six (6) copies of
the brief for Amicus Curiae The Reporters Committee for Freedom of the
Press were sent, via Federal Express, to the Clerk of the United States Court
of Appeals for the Sixth Circuit, 540 Potter Stewart U.S. Courthouse, 100 E.
Fifth Street, Cincinnati, Ohio 45202-3988, and two (2) copies were sent via
United States mail, postage prepaid, to:
Ann Beeson Douglas Letter

National Legal Department Civil Division, Room 7513
American Civil Liberties Union U.S. Department of Justice
Foundation 950 Pennsylvania Avenue, N.W.
125 Broad Street, 18th Floor Washington, DC 20530-0001
New York, NY 10004-2400
One (1) copy was sent via e-mail to:
Douglas Letter
douglas.letter@usdoj.gov
_________________________________________________
Lucy A. Dalglish
Counsel for Amicus Curiae
21

AMERICAN CIVIL LIBERTIES UNION, et al.
ts,
Plaintiffs-Appellees/Cross-Appellan
v.
NATIONAL SECURITY AGENCY, et al.
Defendants-Appellants-/Cross-Appellees.
On Appeal from the United States District Court

For the Eastern District of Michigan
BRIEF OF CURTIS A. BRADLEY; DAVID COLE; RONALD

DWORKIN; RICHARD A. EPSTEIN; HAROLD HONGJU KOH; PHILIP
B. HEYMANN; MARTIN S. LEDERMAN; BETH NOLAN; WILLIAM S.
SESSIONS; GEOFFREY R. STONE; LAURENCE H. TRIBE; WILLIAM
W. VAN ALSTYNE; CAROLYN S. BRATT; REBECCA L. BROWN;
MELVYN R. DURCHSLAG; DAVID GOLDBERGER; MADELINE
KOCHEN; JOAN MAHONEY; SAMUEL A. MARCOSSON;
CHRISTOPHER J. PETERS; CEDRIC MERLIN POWELL; ROBERT A.
SEDLER; ENID TRUCIOS-HAYNES; AND JONATHAN WEINBERG
AS AMICI CURLAE IN SUPPORT OF APPELLEES
AND IN SUPPORT OF AFFIRMANCE
Derek L. Shaffer
Constitutional Law Center
Stanford Law School
559 Nathan Abbott Way
November 17,2006 Stanford, California 94305-86 10
TABLE OF CONTENTS
..
TABLE OF AUTHORITIES ..........................................................................ii
INTERESTS OF AMICI CURIAE ..................................................................1
INTRODUCTION AND SUMMARY ...........................................................2
ARGUMENT ..................................................................................................
4
I . FISA WAS ENACTED IN ORDER TO REGULATE ELECTRONIC

SURVEILLANCE PROGRAMS LIKE THE TSP...........................................4
A. Historical background of FISA ..................................................................5
B . Enactment of FISA ........................................................................................9
C. The TSP's Violation of FISA...................................................................10
I1 THE AUMF DOES NOT IMPLICITLY REPEAL OR OTHERWISE

DISPLACE FISA.....................................................................................................13
I11. CANONS OF CONSTITUTIONAL AVOIDANCE FAVOR

CONSTRUING FISA TO PROHIBIT TSP. NOT TO PERMIT IT.......... 18
A. FISA's Limitations Are Consistent with Article I1 and the

Separation of Powers ...........................................................................................19
B Construing FISA and the AUMF to Permit TSP Would Raise

Serious Fourth Amendment Questions......................................................... 28
CONCLUSION .............................................................................................30
CASES
ACLU v . NSA. 438 F . Supp. 2d 754 (E.D. Mich. 2006)..................................3
DeBartolo Corp. v. Florida Gulf Coast Trades Council. 485 U.S. 568 (1988)
.................................................................................................................... 18
Exparte Milligan. 71 U.S. (4 Wall) 2 (1866) .........................................24. 25
Ex parte Yerger 75 U.S. 85 (1868) ............................................................. 14
Hamdan v. Rumsfeld. 126 S.Ct. 2749 (2006)..............................15. 16.25. 27
Hamdi v. Rumsfeld. 542 U.S. 507 (2004) ...............................................17. 26
J.E.M. Supply. Inc. v. Pioneer Hi-Bred Int 1' . Inc.. 534 U.S. 124 (2001)......14
Laird v. Tatum. 408 U.S. 1 (1972) ...............................................................7
Little v. Barreme. 6 U.S. (2 Cranch) 170 (1804) ........................................2 4
Montclair v. Ramsdell. 107 U.S. 147 (1883) ................................................15
Morales v. W A . Inc. 504 U.S. 374 (1992) ................................................... 14
Socialist Workers Party v. Attorney General. 642 F.Supp. 1357 (S.D.N.Y.
1986) ............................................................................................................
7
United States v. United States District Court (Keith). 407 U.S. 297 (1972) . 8.
29
Youngstown Sheet & Tube Co. v. Sawyer. 343 U.S. 579 (1952) ......20.25. 26
STATUTES
10 U.S.C. tj 801 etseq . (2000) ......................................................................15
18 U.S.C. 5 2511 .............................................................................5, 9, 12. 13
5OU.S.C.g 1805 .......................................................................................5. 11
50U.S.C. 5 1809 ........................................................................................... 9
50 U.S.C. 5 1811 ....................................................................................... 9, 14
Authorization for the Use of Military Force ("AUMF"), Pub. L. No . 107-40,
115 Stat. 224 (2001)..................................................................................1 3
USA PATRIOT Act of 2001, P.L. 107-56....................................................10
OTHER AUTHORITIES
2 J. CONT.CONG.96 (June 17, 1775) ............................................................22

4 WRITINGS
OF GEORGE 367 (J. Fitzpatrick ed. 1931) ...........22
WASHINGTON
7 ANNALS OF CONG.57 (1797) (Fifth Cong.) ................................................23
Bruce Stein, The Framers 'Intent and the Early Years of the Republic, 11
HOFSTRA L.REv. 413, 445-447 (1982) ......................................................22
Congressional Research Service, Presidential Authority to Conduct
Warrantless Electronic Surveillance to Gather Foreign Intelligence
Information (Jan. 5 , 2006) .........................................................................13
GEOFFREYSTONE,PERILOUS TMES:FREESPEECH IN WARTIME FROM THE
SEDITIONACTOF 1798 TO THE WAR ON TERRORISM(2004)....................778
JOSEPHSTORY,3 COMMENTARIES 5 1192 (1833).....23
ON THE CONSTITUTION
Letter fi-om Assistant Attorney General William Moschella to Congress
(Dec. 22, 2005) .................................................................................... 11, 12
Press Briefing by Attorney General Alberto Gonzales (December 19,2005)
NO. 47 (James Madison)....................................................30

THEFEDERALIST
NO. 69 (Alexander Hamilton) ............................................2 1
THEFEDERALIST
The National Security Agency and Fourth Amendment Rights: Hearings
Before the Select Comm. to Study Governmental Operations with Respect
to Intelligence Activities, 94th Cong, Vol. 5 (1975) ....................................6
THEROCKEFELLERCOMM'N,REPORTTO THE PRESIDENT BY THE COMM'N ON
CIA ACTIVITIES (1975). ..................................7
WITHIN THE UNITEDSTATES
United States Department of Justice, Foreign Intelligence Service Annual
Report to Congress for the years 1979-2003.............................................10
CONSTITUTIONAL PROVISIONS
U.S. CONST.,arts. I and 11.......................................................................p assim
LEGISLATIVE MATERIALS
H.R. Conf. Rep. 95-1720, reprinted at 1978 U.S.C.C.A.N. 4048 ..................9
Senate Cornrn. On the Judiciary, Foreign Intelligence Service Act of 1977,
S. REP.NO. 95-604, reprinted at 1978 U.S.C.C.A.N. 3904 ..................6, 29
INTERESTS OF AMICI CUNAE
Amici are scholars of constitutional law and former government
officials with extensive experience analyzing questions of statutory
interpretation and separation of powers. While Amici have widely varying
perspectives on many issues, Amici agree that basic statutory and
constitutional principles counsel affirmance of the judgment below. A
number of ~ m i c i 'were among the scholars and former government officials
' Curtis A. Bradley (Richard and Marcy Horvitz Professor of Law, Duke
University; Former Counselor on International Law, Department of State,
Office of the Legal Adviser, 2004); David Cole (Professor of Law,
Georgetown University Law Center); Ronald Dworkin (Frank Henry
Sommer Professor, New York University Law School); Richard A. Epstein
(James Parker Hall Distinguished Service Professor, University of Chicago
Law School; Peter and Kirsten Bedford Senior Fellow, Hoover Institution);
Harold Hongju Koh (Dean and Gerard C. and Bernice Latrobe Smith
Professor of International Law, Yale Law School; Former Assistant
Secretary of State for Democracy, Human Rights and Labor 1998-2001;
Former Attorney Advisor, Office of Legal Counsel, 1983-85); Philip B.
Heymann (James Barr Ames Professor, Harvard Law School; Former
Deputy Attorney General, 1993-94); Martin S. Lederman (Visiting
Professor, Georgetown University Law Center; Former Attorney Advisor,
Office of Legal Counsel, 1994-2002); Beth Nolan (Former Counsel to the
President, 1999-2001; Deputy Assistant Attorney General, Office of Legal
Counsel, 1996-1999; Associate Counsel to the President, 1993-1995;
Attorney Advisor, Office of Legal Counsel, 1981- 1985); William S.
Sessions (Former Director, FBI, 1987-1993; Former United States District
Judge, Western District of Texas, 1974-1987 (Chef Judge, 1981- 1987));
Geoffrey R. Stone (Harry Kalven, Jr. Distinguished Service Professor of
Law, University of Chicago; Former Dean of the University of Chicago Law
School and Provost of the University of Chicago); Laurence H. Tribe (Carl
M. Loeb University Professor and Professor of Constitutional Law, Harvard
who filed detailed letters to Congress on January 9, February 2, and July 11,
2006, concerning the legality of the NSA's electronic surveillance program.2
Other ~ m i c are
i ~ legal scholars who teach, write and practice at law schools
in this Circuit. Amici respectfully submit this brief in their individual
capacities; affiliations are listed for identification purposes only.
INTRODUCTION AND SUMMARY
At issue in this case is a program of warrantless electronic
surveillance (the so-called Terrorist Surveillance Program or "TSP") that the
Law School); William W. Van Alstyne (Lee Professor, William and Mary
Law School; Former Attorney, Department of Justice, 1958).
These letters, responding to Government arguments, are reprinted at
http: //www .law. stanford.edu/program/centers/conlaw/#constitutionalcont
roversies. Lead counsel for Amici was also a signatory to these letters.
Carolyn S. Bratt (W.L. Matthews Professor of Law, University of
Kentucky College of Law); Rebecca L. Brown (Allen Professor of Law,
Vanderbilt Law School; Attorney Advisor, Office of Legal Counsel, 1983-
1985); Melvyn R. Durchslag (Professor of Law, Case Western Reserve
University School of Law); David Goldberger (Isadore and Ida Topper
Professor of Law, Ohio State University College of Law); Madeline
Kochen (Assistant Professor of Law, University of Michigan Law School);
Joan Mahoney (Professor of Law, Wayne State University Law School);
Samuel A. Marcosson (Professor of Law, Louis D. Brandeis School of
Law, University of Louisville); Christopher J. Peters (Associate Professor
of Law, Wayne State University Law School); Cedric Merlin Powell
(Professor of Law, Louis D. Brandeis School of Law, University of
Louisville); Robert A. Sedler (Distinguished Professor of Law, Wayne
State University); Enid Trucios-Haynes (Professor of Law, Louis D.
Brandeis School of Law, University of Louisville); Jonathan Weinberg
(Professor of Law, Wayne State University).
Executive Branch is conducting in violation of express provisions of the
Foreign Intelligence Surveillance Act ("FISA"). To the extent that the
Government discusses the merits of this issue-as opposed to arguing that it
need not be reached for plaintiffs' want of standing or the Government's
sheld of privilege4-it argues that FISA's prohibitions of warrantless
domestic spying are either superseded by Congress's Authorization for the
Use of Military Force ("AUMF") or prohibited by Article I1 and the
separation of powers as an incursion upon the inherent powers of the
President. The Government thus asks this Court to sanction an exercise of
Executive prerogative without check by either coordinate Branch.
The decision below rejected the Government's defense of the TSP,
holding that the program violates "the APA; the Separation of Powers
doctrine; the First and Fourth Amendments of the United States
Constitution; and the statutory law." ACLU v. NSA, 438 F.Supp. 2d 754,
782 (E.D. Mich. 2006). Amici respectfblly submit that the decision may be
affirmed on narrower, strictly statutory grounds.
Those narrow grounds are straightforward and require no departure
fiom existing practices of statutory construction or settled constitutional
norms. The TSP violates the express prohibitions of FISA, and is exactly
4
Amici express no position on the standing or state secret issues presented
here.
the sort of program FISA was enacted to corral. See Part I. Nothing in the
AUMF supersedes FISA with respect to domestic surveillance. See Part 11.
FISA and the AUMF are clear and unambiguous, but if any ambiguity
remains, it should be resolved against the Government's construction.
Whatever inherent powers the President might have under Article 11, they do
not include the power to conduct a warrantless domestic surveillance
campaign, of indefinite duration and unlimited scope, where a duly enacted
statute expressly prohibits such conduct. Thus, no separation of powers
concern requires deference to the Government's implausible statutory
construction. To the contrary, deference to the Government's position
would itself cast doubt on the constitutionality of the statute. See Part 111.
The decision below should be affirmed.
ARGUMENT
I. FISA Was Enacted In Order To Regulate Electronic

Surveillance Programs Like the TSP.
FISA provides that the Executive may not engage in electronic
surveillance within the United States, or targeted at a U.S. person in the
United States, even for foreign intelligence purposes, except in accord
with the prescribed requirements of FISA (or other provisions of the
federal criminal code not relevant here). Repealing a provision of Title I11
of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title 111")
that had allowed for the exemption of national security surveillance from
requirements of warrants and probable cause, see 18 U.S.C. 8 251l(3)

(1977), FISA extended to spy operations certain constraints on electronic
surveillance like those required in law enforcement. Where FISA applies,
it requires inter alia that a neutral judge on the Foreign Intelligence
Surveillance Court find probable cause to believe that the surveillance
target is a foreign power or an agent of a foreign power. See 50 U.S .C. 8

1805(a)(3).
The Government argues that FISA's general prohibition of
warrantless domestic electronic surveillance should not apply to the TSP.
This argument not only lacks a plausible textual basis, but also ignores the
history that led to FISA's enactment three decades ago. The TSP, as it has
been publicly described, is precisely the sort of program against which FISA
was historically directed.
A. Historical Background of FISA.
FISA was enacted in 1978 in order to end decades of abuse of
executive power through warrantless domestic surveillance. Senate Cornrn.
On the Judiciary, Foreign Intelligence Service Act of 1977, S.Rep 95-
604(I), reprinted in 1978 U.S.C.C.A.N. 3904. As a contemporaneous
Senate Judiciary Committee report noted, FISA was "a response to the
revelations that warrantless electronic surveillance in the name of national
security has been seriously abused," and was designed to ensure "that the
abuses of the past will remain in the past." Id. at 7, 1978 U.S.C.C.A.N. at
3908.
Prior to FISA, the Executive's use of warrantless surveillance in
pursuit of national security interests had been commonplace. Operation
SHAMROCK, begun by the military during World War I1 to intercept
international telegraph communications, persisted long after the war, with
the National Security Agency ("NSA") assuming concealed control. See
The National Securiv Agency and Fourth Amendment Rights: Hearings
Before the Select Cornm. to Study Governmental Operations with Respect to
Intelligence Activities, 94th Cong, Vol. 5 (1975). The NSA also
superintended project MINARET, conducting surveillance of many
thousands of individuals engaged in domestic political activity involving
"civil disturbances, anti-war movements, [or] demonstrations" before the
project's termination in 1973. Id. at 150.
The FBI ran its own unsupervised surveillance program,
COINTELPRO, monitoring domestic political and advocacy organizations
for many decades. See Socialist Workers Party v. Attorney General, 642
F.Supp. 1357 (S.D.N.Y. 1986). As with operations SHAMROCK and
MINARET, the scope of surveillance expanded as the program progressed,
fiom socialist groups in the 1940's, see id. at 1389, to the civil rights
movement, black nationalist groups, and Students for a Democratic Society
by the 1960's, see id. at 1383-85, 1393.
The CIA likewise pursued domestic counterintelligence initiatives.
Operation CHAOS grew fiom pressure applied by the Johnson and Nixon
Administrations during the war in Vietnam to find a link between the anti-
war movement and overseas actors. See GEOFFREY

STONE,PERILOUS
TIMES:
FREESPEECH
IN WARTIME
FROM THE SEDITION
ACTOF 1798 TO THE WARON
TERRORISM
483-87 (2004). Under the program, the CIA placed more than
300,000 American citizens under surveillance, with an average of 1,000
individual reports per month flowing to the FBI and some information to the
President. See id.; THE ROCKEFELLER

COMM'N,REPORTTO THE PRESIDENT
BY THE COMM'NON CIA ACTIVITIES

WITHIN THE UNITEDSTATES
(1975).
The military also conducted its own warrantless domestic surveillance
prior to FISA. Operation CONUS maintained files on more than 100,000
political activists and exchanged data among some 350 military posts. See
Laird v. Tatum, 408 U.S. 1, 6-8 (1972); STONE,supra, at 487. The list of
targets included senators, congressional leaders, civil rights leaders, and civil
liberties organizations. Drawing upon law enforcement databases and
reports by army intelligence agents who attended associational meetings, the
files discussed targets' political views, sex lives and financial conditions.
In 1972, the United States Supreme Court reviewed some of these
exercises of claimed Executive power, holding that warrantless wiretapping
by the Executive of domestic groups under the auspices of national security
violated the Fourth Amendment. United States v. United States District
Court (Keith), 407 U.S. 297 (1972). As Justice Powell wrote for the Court,
"Fourth Amendment freedoms cannot properly be guaranteed if domestic
security surveillances may be conducted solely within the discretion of the
Executive Branch." Id. at 3 16-17.
After a series of prominent hearings conducted from 1973 to 1976, a
Senate select committee chaired by Senator Frank Church concluded that,
"[slince the 19303, intelligence agencies have frequently wiretapped and
bugged American citizens without the benefit of judicial warrant in the
absence of any genuine threat to national security," and that "vast amounts
of information-unrelated to any legitimate government interest-about the
personal and political lives of American citizens" might be used "for
partisan political and other improper ends by senior administration
officials." Senate Comrn. On the Judiciary, Foreign Intelligence Service Act
of 1977, S. REP. NO. 95-604, at 270, reprinted at 1978 U.S.C.C.A.N. 3904,
3909.
B. Enactment of FISA.
In response to these mounting public criticisms of executive abuses of
domestic surveillance, FISA was enacted in 1978 with broad bipartisan
support. Precisely in order to limit electronic surveillance undertaken under
the President's Article I1 authority, FISA specifically provided that it (and
specified criminal code provisions) supply "the exclusive means by which
electronic surveillance . . . may be conducted," 18 U.S.C. 5 25 11(2)(f)
(emphasis added), prohibiting domestic electronic surveillance "except as
authorized by statute," 50 U.S.C. 5 1809(a)(l).

FISA expressly contemplates operation of its restrictions upon the
Executive even in times of war. Upon declaration of war by Congress, it
authorizes electronic surveillance without court order for 15 days, see 50
U.S.C. 5 1811, a period calculated to permit "consideration of any
amendment to this Act that may be appropriate during a wartime
emergency." H.R. Conf. Rep. 95-1720, 34, reprinted at 1978 U.S.C.C.A.N.
40488, 4063. Congress has never suspended the application of FISA in
times of war or other armed conflict, nor altered this 15-day limit on
emergency wiretaps without court order, even though it has amended FISA
to increase the Executive's authority in other ways, for example by
permitting "roving" wiretaps and expanded use of pen register devices. See
USA PATRIOT Act of 2001, P.L. 107-56 @ 206, 214, as amended by Pub.
L. 109-177 5 102, 108, 128 (2006), (codified as amended at 50 U.S.C. @
1805 and 18 U.S.C. @ 1842). Indeed, the Attorney General acknowledged
that explicit congressional authorization for a program like the TSP would
"be difficult, if not impossible" to obtain. Press Briefing by Attorney
General Alberto Gonzales (December 19, 2005), available at
1219 - 1.htrnl.
www.whitehouse.gov/news/releases/2005112/2005
FISA has not unduly constrained the Executive branch. Wl-ule the
Executive submitted an average of just over five hundred new warrant
applications to the FISA Court annually between 1978 and 1995, the
numbers increased to 1,228 in 2002 and 1,727 in 2003. Between 1979 and
2003, the FISC denied only three of the Executive's 16,450 applications for
a warrant. See United States Department of Justice, Foreign Intelligence
Service Annual Report to Congress for the years 1979-2003, available at
http :/Ifas .org/irp/agency/doj/fisa.
C. The TSP's Violation of FISA.
FISA requires a judicial determination, based upon a showing of
probable cause, that a target is an "agent of a foreign power," before a
"surveillance device" may be used to intercept, e.g., (i) "any wire or radio
cornmunication" that is "sent by or intended to be received by a particular,
known United States person who is in the United States," (ii) "any wire
communication to or from a person in the United States," and (iii) any other
communication as to which "a person has a reasonable expectation of
privacy." 50 U.S.C. 1801(f), 1805(a).
Under publicly disclosed accounts of the TSP, the program plainly
violates these provisions. The Department of Justice has conceded that the
TSP involves "warrantless" "e1ectronic surveillance" of "communications
into and out of the United States." Letter from Assistant Attorney General
William Moschella to Congress (Dec. 22, 2005), available at
122205.pdf.
http://www.epic.org/privacy/terrorism/fisa~nsaletter The
Government has never suggested that surveillance under the TSP would
satisfy the substantive showing required by FISA, nor made TSP subject to
any judicial approval to ensure that FISA's substantive standards are
satisfied.
The Government now seeks to retreat from its public concessions,
suggesting for the first time that plaintiffs cannot prove, without classified
information shielded by the state secret privilege, "that the TSP implicates
'electronic surveillance' regulated by FISA." Govt. Br. at 42. This newly
minted suggestion that the TSP might not have been covered by FISA in the
first place cannot be reconciled with the Administration's prior public
statements that "FISA could not have provided" the tools required to
conduct the TSP and that the AUMF "allows electronic surveillance in the
conflict with a1 Qaeda without complying with FISA." Letter from William
Moschella, supra, at 4. The Administration's extended efforts to justify the
TSP under the AUMF would have been wholly beside the point if the
Government could have said all along that, "for reasons we can't publicly
disclose, the TSP does not involve any electronic surveillance withn the
meaning of FISA."
Nor does invalidation of the TSP under FISA depend, as the
Government's state secret argument incorrectly suggests, upon further
discovery of any specific classified details of precisely how or why the
Executive may be intercepting "domestic, wire, oral, and electronic
communications." There simply can be no such interception outside of
FISA. Congress has constituted FISA as the "exclusive means" by which a
program like the TSP might lawfully proceed. 18 U.S.C. fj 25 11(2)(f).
For these reasons, FISA prohibits the TSP, irrespective of any further
discovery in this case.
I1 The AUMF Does Not Implicitly Repeal Or Otherwise

Displace FISA.
The Government argues that even if FISA might otherwise prohibit
the TSP, Congress's Authorization for the Use of Military Force ("AUMF"),
Pub. L. No. 107-40, 115 Stat. 224 (2001), supersedes FISA's prohibitions.
See Govt. Br. 42-45. FISA makes warrantless surveillance unlawful "except
as authorized by statute," 50 U.S.C. 5 1809(a), and the Government argues
that the AUMF satisfies this exception.
The Government's argument misreads this exception, for Congress
apparently intended the phrase "authorized by statute" to refer to
amendments "to FISA itself, rather than having a broader meaning."
Congressional Research Service, Presidential Authority to Conduct
Warrantless Electronic Surveillance to Gather Foreign Intelligence
Information, at 40 (Jan. 5, 2006). But even if the Government's
construction were plausible, construing the AUMF to provide the
authorization required by 5 1809(a) would nonetheless violate standard
canons of statutory construction and require stretching the AUMF beyond all
recognition.
To begin with, FISA specifically and comprehensively addresses the
use of domestic wiretaps, providing in 18 U.S.C. 5 2511(2)(f) that its
procedures are "the exclusive means by which electronic surveillance . ..

may be conducted." The AUMF's generic authorization of force does not
affect $2511(2)(f), regardless of its impact on $ 1809(a). The Government's
theory depends on the notion that the AUMF has implicitly repealed the
"exclusive means" provision of $2511(2)(f). But "[rlepeals by implication
are not favored," Ex parts Yerger 75 U.S. 85, 105 (1868), and may be found
only "'when the earlier and later statutes are irreconcilable,"' J.E.M. Supply,
Inc. v. Pioneer Hi-Bred Int 1' , Inc., 534 U.S. 124, 141-42 (2001) (quoting
Morton v. Mancari, 417 U.S. 535, 550 (1974)). The AUMF and FISA are
readily reconciled; FISA limits the means by which the Executive may
discharge his duties in the process of implementing the AUMF, just as FISA
does with respect to any number of other statutes conferring general
authorization upon the Executive.
Moreover, FISA expressly anticipates wartime usage, authorizing
warrantless electronic surveillance to acquire foreign intelligence, but only
"for a period not to exceed fiAeen calendar days following a declaration of
war by the Congress." 50 U.S.C. $ 1811. A specific and "carefully drawn"
statute prevails over a general statute when there is a conflict. Morales v.
TWA, Inc. 504 U.S. 374, 384-85 (1992) (quoting International Paper Co. v.
Ouelette, 479 U.S. 481,494 (1987)). The AUMF's generic authorization of
force must yield to this more specific provision, especially as Congress has
had multiple opportunities to amend FISA specifically to authorize the
Government's program and has pointedly declined to do so.
Reading the AUMF as overriding FISA would render the 15-day
provision mere surplusage. Every declaration of war is, as a matter of
course, accompanied by authorization to use military force. Thus, were the
Government's argument here correct, then FISA's prescription for wartime
would have no practical operation; times of war would entail military
authorization, which would suspend FISA irrespective of its 15-day window.
The Government's statutory construction is foreclosed by the basic canon
that courts should "give effect, if possible, to every clause and word of a
statute." Montclair v. Ramsdell, 107 U.S. 147, 152 (1883).
If any doubt remained that the AUMF cannot be stretched to fit the
Government's construction, the Supreme Court's decision in Hamdan v.
Rumsfeld, 126 S.Ct. 2749 (2006), resolved it. Hamdan rejected a similar
attempt by the Government to use the AUMF as carte blanche for evading
existing statutory checks. Article 21 of the Uniform Code of Military Justice
sets out the conditions under which the President may convene military
commissions in place of courts-martial. 10 U.S.C. 5 801 et seq. (2000). As
the Court held, Hamdan was set to be tried in a military commission set up
by an Executive directive that transgressed the specific limitations imposed
by Article 21-in particular, that such tribunals must comply with the
international laws of war, including treaty obligations imposed by the
Geneva Conventions. 126 S. Ct. at 2774, 2786, 2795-97; see also id. at
2799, 2802-04 (Kennedy, J., concurring). The Government argued that the
Court could find in the AUMF "specific, overriding authorization" for the
commission. Hamdan, 126 S. Ct. at 2774-75. But the Court concluded
otherwise. It declined to read the AUMF as implicitly empowering the
President to override the specific, governing statute: "there is nothing in the
text or legislative history of the AUMF even hinting that Congress intended
to expand or alter the authorization set forth in Article 21 of the UCMJ." Id.
at 2775.
The Government's argument here with respect to FISA fares no
better. Here, as in Hamdan, "there is nothing in the text or legislative
history of the AUMF even hinting that Congress intended to expand or alter
the authorization set forth" in FISA. Moreover, FISA's limitations on
electronic surveillance are pellucid in comparison to the more ambiguous
provisions of the UCMJ that the Court construed in Hamdan. If the AUMF
could not be construed to authorize Executive conduct contrary to limits
implicit in the UCMJ, then surely it cannot be construed to authorize
Executive conduct contrary to limits set forth explicitly in FISA.
Nor can warrantless surveillance inside the United States be properly
characterized as the sort of "incident of war" within the compass of the
AUMF that might supersede the specific restrictions of FISA. To be sure,
Hamdi v. Rumsfeld, 542 U.S. 507 (2004), held that the AUMF authorized the
detention of enemy combatants captured on the battlefield in Afghanistan.
Id. at 5 16 (plurality opinion). Hamdi made clear, however, that detention
was authorized only in the "narrow circumstances considered here"-
namely, the incapacitation of enemies who could otherwise return to the
battlefield. Id. at 519. The Court declined to hold that the AUMF
authorized detention for other purposes like interrogation. Id. at 52 1. And
Hamdi did not stop the Court from upholding statutory limits on Executive
power over trial of enemy combatants in Hamdan--even though, as Hamdi
itself acknowledged, such trial is '"by universal agreement and practice"' an
"'important incident of war,"' id. at 5 18 (quoting Ex parte Quirin, 3 17 U.S.
1'28 (1942)).
Given that military detention and trial are far more closely incident to
war than electronic surveillance, the inapplicability of the AUMF here
follows a fortiori from Hamdan. Domestic surveillance is a far cry from the
capture of enemy combatants on a battlefield. If the AUMF could not be
stretched from authorizing detention of enemy combatants to authorizing the
procedures for trylng them in derogation of existing statutory limits, then
surely it cannot be stretched to spying on the electronic communications of
persons withn the United States who were never on the battlefield at all, in
violation of FISA's specific restrictions.
For these reasons, the AUMF ,cannot plausibly be read to have
implicitly repealed or otherwise amended FISA.
111. Canons of Constitutional Avoidance Favor Construing

FISA to Prohibit the TSP, Not To Permit It.
For the reasons stated above, Amici respectfully submit that this case
can and should be decided as a matter of straightforward statutory
construction. The statutory scheme barring warrantless wiretapping except
for a limited 15-day period on wartime is clear and unambiguous, and the
statute specifically instructs that it provides the "exclusive means" of
electronic surveillance. Congress has not amended these sections of FISA
even while amending other sections since 911 1. There is no need, therefore,
for this Court to invoke the canon that an ambiguous statute should be
reasonably construed to avoid a serious constitutional question. See
DeBartolo Corp. v. Florida Gulf Coast Trades Council, 485 U.S. 568, 575
(1988).
The Government nonetheless invokes this canon, suggesting that
reading "the AUMF and FISA to foreclose the President's authority to
authorize the TSP would present a grave constitutional question" concerning
the scope of the President's Article I1 authority during armed conflicts. Govt.
Br. at 45-46.
The Government, however, has it exactly backwards. Contrary to the
Government's argument, construing FISA and the AUMF to prohibit
unchecked warrantless domestic surveillance raises no serious constitutional
questions under Article I1 or the structural separation of powers, but is
entirely consistent with Congress's longstanding role in the Nation's defense
under the many war powers (and other powers) conferred by Article I. In
contrast, construing the AUMF to permit unchecked warrantless domestic
surveillance would raise serious questions under the Fourth Amendment.
Were the canon of constitutional avoidance implicated here, therefore, it
would work against the President, not in his favor.
A. FISA's Limitations Are Wholly Consistent with Article

I1 and the Separation of Powers.
The Government's brief reads as if the Nation's war powers centrally
reside in Article I1 of the Constitution. But the Constitution in fact divides
and blends powers between the branches even as to war, and Article I
accords Congress explicit and significant roles in regulating the Nation's
military conduct. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579, 635 (1952) (Jackson, J., concurring) (observing that the Constitution
"enjoins upon its branches separateness but interdependence" and that the
powers of the President "depend[] upon their disjunction or conjunction with
those of Congress"). Thus the Government is incorrect to suggest that the
President's war powers are not only inherent but also exclusive.
Specifically, Article I provides that "[tlhe Congress shall have
power":
"[Tlo. . . provide for the common defense." Sec. 8, C1. 1.
"To declare war. . . and make rules concerning captures on land and
water." C1. 11.
"To raise and support armies. . . " C1. 12.
"To provide and maintain a navy." C1. 13.
"To make rules for the government and regulation of the land and
naval forces." C1. 14.
"To. . . suppress insurrections and repel invasions". C1. 15.

"To provide for organizing, arming, and disciplining, the militia, and
for governing such part of them as may be employed in the service of
the United States." C1. 16.
"To make all Laws which shall be necessary and proper for carrying
into Execution the foregoing Powers, and all other Powers vested by
t h s Constitution in the Government of the United States, or in any
Department or Officer thereof." C1. 18
Thus, Congress is expressly empowered to make laws in the military and
defense context, binding even upon the President. FISA is one such law.
Contemporaneous historical sources confirm the intent expressed in
the Constitution's text to empower the Legislature to regulate the
Executive's conduct of war. Alexander Hamilton emphasized that the
Constitution would effectuate an important break from Great Britain,
separating the Executive's powers to command the armies from the
Legislature's ability to regulate them:
The President is to be commander-in-chief of the army and

navy of the United States. In this respect his authority would be
nominally the same with that of the king of Great Britain, but in
substance much inferior to it. It would amount to nothing more
than the supreme command and direction of the military and
naval forces, as first General and admiral of the Confederacy;
while that of the British lung extends to the DECLARING of
war and to the RAISING and REGULATING of fleets and
armies -- all which, by the Constitution under consideration,
would appertain to the legislature.
NO. 69 (Hamilton).
THEFEDERALIST
The first Continental Congress noted and exercised its power to
regulate the conduct of war. The commission granted to George
Washington as Commander in Chief required that he conform his means of
waging war to civilian, legislative control: <'And you are to regulate your
conduct in every respect by the rules and disciplines of war (as herewith
given to you) and punctually to observe and follow such orders and
directions from time to time as you shall receive from this or a future
Congress of the said United Colonies. . . ." 2 J. CONT.CONG.96 (June 17,
1775).
In turn, Washington showed great deference to Congress. In a letter
to Joseph Reed, he made clear that, "if the Congress [says] 'thus far and no
farther you shall go,' I will promise not to offend whilst I continue in their
service." 4 WRITINGS
OF GEORGE
WASHINGTON
367 (J. Fitzpatrick ed. 1931).
Washington then demonstrated his solicitude for legislative control over the
means of war when he sought Congress's approval before burning New
York City. When Congress denied permission to leave scorched earth for
the advancing British, Washington called the decision a "capital error[]," but
dutifully obeyed. Bruce Stein, The Framers' Intent and the Early Years of
L.REv. 4 13,445-47 (1982).

the Republic, 11 HOFSTRA
The Constitution subsequently gave the Executive the power of the
veto, limiting Congress's control thereafter to statutory constraints. But that
did not change the fundamental understanding that the President would be
obliged to conform the prosecution of war to duly enacted law. In 1797,
President Adams confronted a naval war between France and Britain that
threatened to compromise the Nation's interests with one or both. He waited
for Congress to suspend commercial relations with France and to establish
the rules by which American shps were to engage others at sea. In the face
of Congressional action mandating open trade, Adams admitted that "it
remains for Congress to prescribe such regulations as will enable our
seafaring citizens to defend themselves against violations of the law of
nations . . . ." 7 ANNALS

OF CONG.57 (1797) (Fifth Cong.).
Other contemporaneous commentators likewise recognized that
Congress's power to regulate the armed forces was key to the constitutional
structure: "In Great Britain, the king, in h s capacity of generalissimo of the
whole kingdom, has the sole power of regulating fleets and armies. . . The
whole power is far more safe in the hands of congress, than of the
executive." JOSEPHSTORY,3 COMMENTARIES 5 1192

ON THE CONSTITUTION
(1833). St. George Tucker, a Virginia law professor and district court judge,
noted that "The power of declaring war, with all its train of consequences,
direct and indirect, forms the next branch of the powers confided to
congress." 1 WILLIAMBLACKSTONE, "269 (1803) (emphasis

COMMENTARIES
added).
An unbroken line of decisions by the Supreme Court confirms this
text and history. These precedents confirm that Congress may impose a
wide range of statutory restrictions on the President's conduct of war
without raising constitutional difficulty, and that the President's role as
Commander in Chief does not negate congressional authority in the military
sphere.
Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804), recognized that the
President does not have authority to ignore acts of Congress during wartime.
There, the Court held that a congressional directive authorizing the capture
of ships traveling to French ports barred the Executive from capturing ships
travelingfrom French ports pursuant to a claim of inherent authority. See id.
at 177-78 ("[Tlhe legislature seem to have prescribed that the manner in
which this law shall be carried into execution was to exclude a seizure of
any vessel not bound to a French port.").
Ex parte Milligan, 71 U.S. (4 Wall) 2 (1866), likewise held
presidential war powers subject to congressional check. The Court
unanimously held that the Habeas Corpus Act of 1863 barred the
Commander in Chief fi-om denying habeas corpus rights to a detainee
captured outside the area of active conflict. Congress had authorized
President Lincoln's suspension of the Great Writ in 1863, but provided for a
modified form of habeas corpus limiting the availability of military tribunals
in areas in which civilian courts still functioned. Habeas Corpus Act of
March 3, 1863, ch. 81, 5 2, 12 Stat. 755. After Milligan was convicted by
military tribunal and sentenced to death by hanging, he petitioned the
Supreme Court for a writ of habeas corpus, asserting that the Executive had
acted outside the limitations imposed by Congress.
The Executive argued that the statute should be construed broadly,
such that "[dluring the war [the President's] powers [would] be without
limit." 71 U.S. (4 Wall.) at 18. But the Court held that Congress had, by
statute, given Milligan a right to petition for habeas corpus, contrary to the
President's judgment that such a right would undermine the war effort. See
id. at 133 (Chase, J., concurring) ("The constitutionality of this act has not
been questioned and is not doubted," even though the act "limited this
authority [of the President to suspend habeas] in important respects.").
The great Steel Seizure case, Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579 (1952), striking down President Truman's executive
order seizing steel production facilities in order to avert a strike during the
Korean Conflict, confirmed that the scope of the President's exclusive
authority as Commander in Chief is narrow, and does not extend to
regulating private domestic activities that are only indirectly connected to
the actual conduct of war:
The order cannot properly be sustained as an exercise of the

President's military power as Commander in Chief of the
Armed Forces. The Government attempts to do so by citing a
number of cases upholding broad powers in military
commanders engaged in day-to-day fighting in a theater of war.
Such cases need not concern us here. Even though 'theater of
war' be an expanding concept, we cannot with faithfulness to

our constitutional system hold that the Commander in Chief of
the Armed Forces has the ultimate power as such to take
possession of private property in order to keep labor disputes
from stopping production. This is a job for the Nation's
lawmakers, not for its military authorities.
Id. at 587. Four of the Justices in the majority stressed that the President's
conduct was inconsistent with Congress's prescribed means of addressing
such a labor crisis. Id. at 639-40 (Jackson, J., concurring), id. at 656-60
(Burton, J., concurring); id. at 662-64 (Clark, J., concurring in the judgment)
("where Congress has laid down specific procedures to deal with the type of
crisis confronting the President, he must follow those procedures in meeting
the crisis"); id. at 609 (Frankfurter, J., concurring) ("To find authority so
explicitly withheld is. . . to disrespect the whole legislative process and the
constitutional division of authority between President and Congress.").
Nothing in the terrible events of 9/11 altered the fundamental
structural principles laid out in these cases. In Hamdi v. Rumsfeld, 542 U.S.
507 (2004), which reversed on due process grounds the dismissal of a citizen
enemy combatant's petition for habeas corpus, the Court cautioned that "we
have long since made clear that a state of war is not a blank check for the
President when it comes to the rights of the Nation's citizens." Id. at 536
(plurality opinion); see id. at 545 (Souter, J. concurring in part and
dissenting in part) ("In a government of separated powers, deciding finally
on what is a reasonable degree of guaranteed liberty whether in peace or war
(or some condition in between) is not well entrusted to the Executive Branch
of Government, whose particular responsibility is to maintain security.").
Most recently, Hamdan v. Rumsfeld confirmed that the President lacks
any power over the tial of enemy combatants that could override Congress's
specific enactment of contrary procedures under the Uniform Code of
Military Justice:
Congress had simply preserved what power, under the

Constitution and the common law of war, the President already
had to convene military commissions-with the express
condition that he and those under his command comply with the
law of war.
126 S. Ct. at 2754. As the Court noted, even assuming the President has
"independent power, absent congressional authorization, to convene military
commissions," nevertheless "he may not disregard limitations that Congress
has, in proper exercise of its own war powers, placed on his powers." Id. at
2774 n.23 (citing Youngstown, 343 U.S. at 637 (Jackson, J., concurring)).
Thus the Government's argument that Article I1 or the separation of
powers compels a lenient construction of FISA is misplaced. Even if the
Government's construction were more plausible, it is in any event incapable
of avoiding constitutional concerns. Any construction that resolved
ambiguity by favoring the inherent powers of the President would raise
serious concerns about usurping the legislative powers of the Congress. The
predictable upshot of the Government's constitutional avoidance argument
would be to skew the balance of power in favor of the Executive vis a vis the
Legislature.
Finally, the Government's attempt to bootstrap a constitutional
defense from its assertion of state secret privilege is unavailing. The
Government argues that "[tlhe constitutionality of any limits placed on the
President's authority to gather foreign intelligence against the enemy in
wartime" requires factual knowledge the state secret privilege makes it
impossible to obtain. Govt. Br. 47. But no further discovery of classified
details is needed to dispense with the Government's constitutional defense.
Whatever inherent power the President might have to take a particular
discrete action in wartime, such as protecting the homeland by repelling a
sudden attack, any such power clearly cannot sustain a systematic and
premeditated program like TSP that defies an express statutory prohbition.
Thus, the Government's constitutional avoidance argument fails.
B. Construing FISA and the AUMF to Permit the TSP

Would Raise Serious Fourth Amendment
Questions.
As the preceding section shows, the construction urged by the
Appellees is wholly consistent with Article I and raises no serious Article I1
or separation of powers concerns. In contrast, construing FISA and the
AUMF to allow unlimited warrantless wiretapping of communications to
and from persons in the United States would raise serious constitutional
questions under the Fourth Amendment. The TSP as publicly described
lacks both crucial safeguards required by the Fourth Amendment:
individualized probable cause and judicial warrant. The Supreme Court held
unconstitutional under the Fourth Amendment similar domestic wiretaps,
involving similar assertions of unbridled executive discretion, in United
States v. United States District Court (Keith), 407 U.S. at 321 (noting that
national security concerns do not alter "customary Fourth Amendment
requirement of judicial approval prior to initiation of a search or
surveillance").
These concerns over the constitutionality of domestic electronic
surveillance were one motivation behind FISA. See Part 1.A supra. In
enacting FISA, Congress legislated in the shadow of the Fourth Amendment,
h i s h i n g a "secure framework by which the executive branch may conduct
legitimate electronic surveillance for foreign intelligence purposes within the
context of t h s nation's commitment to privacy and individual rights." S.
Rep. No. 95-604 at 15, reprinted at 1978 U.S.C.C.A.N. 3904,3916.
Whether or not the TSP frontally violates the Fourth Amendment-as
Appellees argue, see ACLU Br. at 42-52-the canon of constitutional
avoidance clearly counsels against construing FISA and the AUMF so as to
test the Fourth Amendment's outer boundary.
For these reasons, the canons of constitutional avoidance, if reached,
work against the Government, not in its favor.
CONCLUSION
The Executive's claim to unilateral, inherent and indefeasible
authority-unanswerable to Congress and unreviewable by the Courts-
would depart markedly from the basic constitutional premise that "[tlhe
accumulation of all powers. . . in the same hands. . . may justly be
No. 47 (James
pronounced the very definition of tyranny." THEFEDERALIST
Madison). No such constitutional question, however, need be reached to
decide this case. The judgment below can and should be affirmed on
straightforward statutory grounds. Accordingly, if this Court reaches the
merits of the judgment below, that judgment should be affirmed.
Derek L. Shaffer
Constitutional Law Center
Stanford Law School
559 Nathan Abbott Way
Stanford, California 94305-8610
November 17,2006
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 29, Fed. R. App. P. 32(a)(7)(C), and this
Court's Rule 32, I hereby certify that this brief complies with the type-
volume limitation of Fed. R. App. P. 32(a)(7)(B), as read in conjunction with
Fed. R. App. P. 29. In reliance on the word count of the word-processing
system used to prepare this brief, I hereby certify that the portions of this
brief subject to the type-volume limitation contain 6,435 words.
I -
DATED: November 17,2006
I hereby certify that a true and correct copy of the foregoing brief has
been served this 17th day of November 2006 upon the following via FedEx
delivery:
Douglas N. Letter
Thomas N. Bondy
Anthony A. Yang
Attorneys, Appellate Staff
Civil Division, Room 75 13
950 Pennsylvania Ave., N.W.
(202) 5 14-3602
Ann Beeson
Jameel Jaffer
Legal Department
New York, NW 10004
(2 12) 549-2500
Kathledn M. Sullivan

SOUTHERN DIVISION
AMERICAN CIVIL LIBERTIES UNION;

AMERICAN CIVIL LIBERTIES UNION
FOUNDATION; AMERICAN CIVIL
LIBERTIES UNION OF MICHIGAN;
COUNCIL ON AMERICAN-ISLAMIC
RELATIONS; COUNCIL ON AMERICAN-
ISLAMIC RELATIONS MICHIGAN; Case No. 2:06cv10204
GREENPEACE, INC.; NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE Hon. Anna Diggs Taylor
LAWYERS; JAMES BAMFORD; LARRY
DIAMOND; CHRISTOPHER HITCHENS;
TARA MCKELVEY; and BARNETT R.
RUBIN,
Plaintiffs,
v.

GENERAL KEITH B. ALEXANDER, in his
official capacity as Director of the National
Security Agency and Chief of the Central
Security Service,
Defendants.
STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF

PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT
ANN BEESON
Attorney of Record
JAMEEL JAFFER
SCOTT MICHELMAN (admission pending)
New York, NY 10004-2400
(212) 549-2500
annb@aclu.org
KARY L. MOSS
(313) 578-6814
msteinberg@aclumich.org
Attorneys for Plaintiffs
March 9, 2006
1. In the fall of 2001, the President authorized the NSA to launch a secret electronic
surveillance program (the Program).
A. President Bush has stated: In the weeks following the terrorist attacks on our
Nation, I authorized the National Security Agency, consistent with U.S. law
and the Constitution, to intercept the international communications of people
with known links to Al Qaida and related terrorist organizations. Exh. A at
1881.
B. Attorney General Gonzales has stated: The President has authorized a

program to engage in electronic surveillance . . . . Exh. B.
2. Under the Program, the NSA intercepts electronic communications.
A. General Michael Hayden, Principal Deputy Director for National Intelligence,

has acknowledged that international calls are intercepted under the Program.
Exh. C.
B. President Bush has noted that calls are intercepted. Exh. D at 1889.
C. Assistant Attorney General William E. Moschella has said: As described by

the President, the NSA intercepts certain international communications . . . .
Exh. F.
3. Under the Program, the NSA intercepts communications of people inside the United
States.
A. Vice President Cheney has described the Program as follows: It is the

interception of communications, one end of which is outside the United
States, and one end of which, either outside the United States or inside, we
have reason to believe is al-Qaeda-connected. Exh. E.
B. Assistant Attorney General William E. Moschella has said: As described by

the President, the NSA intercepts certain international communications into
and out of the United States . . . . Exh. F.
C. In describing surveillance under the Program, Attorney General Alberto

Gonzales has said: To the extent that there is a moderate and heavy
communication involving an American citizen, it would be a communication
where the other end of the call is outside the United States and where we
believe that either the American citizen or the person outside the United States
is somehow affiliated with al Qaeda. Exh. B.
4. President Bush has reauthorized the Program more than thirty times. He has stated:
I've reauthorized this program more than 30 times since the September the 11th
attacks . . . . Exh. D at 1885.
5. President Bush intends to continue reauthorizing the Program. He has stated:

I intend to [reauthorize the Program] for so long as our Nation is for so long as the
Nation faces the continuing threat of an enemy that wants to kill American citizens.
Exh. D at 1885.
6. Under the Program, the NSA intercepts electronic communications without probable
cause.
A. General Hayden has stated that the NSA targets for interception calls . . . [the
government has] a reasonable basis to believe involve al Qaeda or one of its
affiliates. Exh. C.
B. President Bush has said: I authorized the interception of international

communications of people with known links to Al Qaida and related terrorist
organizations. Exh. D at 1885.
C. President Bush has said: Before we intercept these communications, the

government must have information that establishes a clear link to these terrorist
networks. Exh. A at 1881.
D. Vice President Cheney has said: It is the interception of communications, . . .

one end of which . . . we have reason to believe is al-Qaeda-connected. Exh. E.
E. Assistant Attorney General William E. Moschella has said: As described by the

President, the NSA intercepts certain international communications into and out
of the United States of people linked to al Qaeda or an affiliated terrorist
organization. Exh. F.
F. Attorney General Gonzales has stated that the NSA intercepts international
communications involving someone we reasonably believe is associated with al
Qaeda . . . . Exh. G.
G. Attorney General Gonzales has stated that the NSA intercepts communications
where we have to have a reasonable basis to conclude that one party to the
communication is a member of al Qaeda, affiliated with al Qaeda, or a member of
an organization affiliated with al Qaeda, or working in support of al Qaeda. Exh.
B.
H. General Hayden has said: We are going after very specific communications that
our professional judgment tells us we have reason to believe are those associated
with people who want to kill Americans. Exh. C.
I. General Hayden has stated that the NSA intercepts calls that we have a
reasonable basis to believe involve al Qaeda or one of its affiliates. Exh. C.
J. During his congressional testimony, when Attorney General Gonzales was asked
about the standard for intercepting calls under the Program, he responded as
follows: I think it's probable cause. But it's not probable cause as to guilt Or
probable cause as to a crime being committed. It's probable cause that a party to
the communication is a member or agent of Al Qaida. The precise language that
I'd like to refer to is, There are reasonable grounds to believe that a party to
communication is a member or agent or Al Qaida or of an affiliated terrorist
organization. It is a probable cause standard, in my judgment. Exh. H.
K. General Hayden has said: Inherent foreign intelligence value is one of the
metrics we must use to ensure that we conform to the Fourth Amendment's
reasonableness standard when it comes to protecting the privacy of these kinds of
people. Exh. C.
7. The Attorney General has refused to specify the number of Americans whose
communications are intercepted under the Program. During a press briefing by
Attorney General Gonzales, the following exchange occurred:
Q General, are you able to say how many Americans were caught in this
surveillance?
ATTORNEY GENERAL GONZALES: I'm not -- I can't get into the specific
numbers because that information remains classified. Again, this is not a situation
where -- of domestic spying. To the extent that there is a moderate and heavy
communication involving an American citizen, it would be a communication
where the other end of the call is outside the United States and where we believe
that either the American citizen or the person outside the United States is
somehow affiliated with al Qaeda.
Exh. B.
8. The Attorney General has said that under the Program, information is collected,
information is retained and information is disseminated . . . . Exh. H.
9. The Program is intercepting communications that are subject to the requirements of

the Foreign Intelligence Surveillance Act of 1978 (FISA). In describing the Program,
Attorney General Gonzales has stated that the Foreign Intelligence Surveillance Act
. . . requires a court order before engaging in this kind of surveillance . . . unless
otherwise authorized by statute or by Congress. Exh. B.
10. The Program does not operate in accordance with the procedures set forth in FISA.
A. General Hayden has said: I can say unequivocally that we have used this
program in lieu of [the FISA process] and this program has been successful.
Exh. B.
B. General Hayden has stated: If FISA worked just as well, why wouldn't I use
FISA? To save typing? No. There is an operational impact here, and I have two
paths in front of me, both of them lawful, one FISA, one the presidential -- the
president's authorization. And we go down this path because our operational
judgment is it is much more effective. So we do it for that reason. Exh. C.
C. General Hayden has said: [T]his is a more . . . aggressive program than would
be traditionally available under FISA. Exh. B.
D. General Hayden has said, [t]he trigger [to intercept communications] is quicker
and a bit softer than it is for a FISA warrant . . . . Exh. C.
E. General Hayden has said in response to a question about the Program: What
you're asking me is, can we do this program as efficiently using the one avenue
provided to us by the FISA Act, as opposed to the avenue provided to us by
subsequent legislation and the President's authorization. Our operational
judgment, given the threat to the nation that the difference in the operational
efficiencies between those two sets of authorities are such that we can provide
greater protection for the nation operating under this authorization. Exh. B.
F. General Hayden has said: In the instances where this program applies, FISA
does not give us the operational effect that the authorities that the president has
given us give us. Exh. C.
G. Assistant Attorney General William E. Moschella has said: [T]he President

determined that it was necessary following September 11 to create an early
warning detection system. FISA could not have provided the speed and agility
required for the early warning detection system. Exh. F.
11. Under the Program, the NSA intercepts communications without obtaining a warrant
or any other type of judicial authorization.
A. Attorney General Gonzales has stated: [T]he program is triggered [by] a career
professional at the NSA. Exh. H
B. General Hayden has stated that [t]he period of time in which we do this [i.e.
intercept a communication] is, in most cases, far less than that which would be
gained by getting a court order. Exh. B.
C. During a press briefing by General Hayden, the following exchange occurred:
QUESTION: . . . Just to clarify sort of what's been said, from what I've heard
you say today and an earlier press conference, the change from going around
the FISA law was to -- one of them was to lower the standard from what they
call for, which is basically probable cause to a reasonable basis; and then to
take it away from a federal court judge, the FISA court judge, and hand it
over to a shift supervisor at NSA. Is that what we're talking about here -- just
for clarification?
GEN. HAYDEN: You got most of it right. The people who make the
judgment, and the one you just referred to, there are only a handful of people
at NSA who can make that decision. They're all senior executives, they are all
counterterrorism and al Qaeda experts. So I -- even though I -- you're actually
quoting me back, Jim, saying, shift supervisor. To be more precise in what
you just described, the person who makes that decision, a very small handful,
senior executive. So in military terms, a senior colonel or general officer
equivalent; and in professional terms, the people who know more about this
than anyone else.
QUESTION: Well, no, that wasn't the real question. The question I was
asking, though, was since you lowered the standard, doesn't that decrease the
protections of the U.S. citizens? And number two, if you could give us some
idea of the genesis of this. Did you come up with the idea? Did somebody in
the White House come up with the idea? Where did the idea originate from?
Thank you.
GEN. HAYDEN: Let me just take the first one, Jim. And I'm not going to talk
about the process by which the president arrived at his decision. I think you've
accurately described the criteria under which this operates, and I think I at
least tried to accurately describe a changed circumstance, threat to the nation,
and why this approach -- limited, focused -- has been effective.
Exh. C (emphasis added).
D. Attorney General Gonzales has said: [T]he Supreme Court has long held that
there are exceptions to the warrant requirement in -- when special needs outside
the law enforcement arena. And we think that that standard has been met here.
Exh. B.
12. Under the Program, neither the President nor the Attorney General authorizes
specific instances of surveillance. General Hayden has said of the communications
intercepted under the Program: These are communications that we have reason to
believe are Al Qaeda communications: a judgment made by American intelligence
professionals, not folks like me or political appointees . . . . Exh. C.
13. Under the Program, an NSA shift supervisor is authorized to approve interceptions
of communications.
A. General Hayden has stated that the judgment to target a communication is made
by the operational work force at the National Security Agency using the
information available to them at the time, and the standard that they apply -- and
it's a two-person standard that must be signed off by a shift supervisor, and
carefully recorded as to what created the operational imperative to cover any

target, but particularly with regard to those inside the United States. Exh. B.
B. Attorney General Gonzales has said of the Program: The decision as to which
communications will be surveilled are made by intelligence experts out at NSA.
Exh. H.
14. Attorney General Alberto Gonzales has refused to rule out the possibility that the
Administration has engaged in warrantless physical searches of homes or offices in
pursuit of its national policies.
SCHUMER: OK. Good. Now, here's the next question I have: Has the
government done this? Has the government searched someone's home, an
American citizen, or office, without a warrant since 9/11, let's say?
GONZALES: To my knowledge, that has not happened under the

terrorist surveillance program, and I'm not going to go beyond that.
SCHUMER: I don't know what that -- what does that mean, under
the terrorist surveillance program? The terrorist surveillance
program is about wiretaps. This is about searching someone's home. It's different.
So it wouldn't be done under the surveillance program. I'm asking you if it has
been done, period.
GONZALES: But now you're asking me questions about operations or

possible operations, and I'm not going to get into that, Senator.
Exh. G.
15. The Program has irreparably harmed the First Amendment rights of Plaintiffs and
others.
A. Plaintiffs are a group of prominent journalists, scholars, attorneys, and national

nonprofit organizations who frequently communicate by telephone and email with
people outside the United States, including in the Middle East and Asia. Exh. I,
Diamond Decl. 2-8; Exh. J, Hollander Decl. 2-12, 14-15; Exh. K, McKelvey
Decl. 2-7; Exh. L, Swor Decl. 2, 4, 7, 10.
B. Some of the plaintiffs, in connection with scholarship, journalism, or legal

representation, communicate with people whom the United States government
believes or believed to be terrorist suspects or to be associated with terrorist
organizations. Exh. I, Diamond Decl. 9; Exh. J, Hollander Decl. 12-14, 17-24;
Exh. K, McKelvey Decl. 8-10; Exh. L, Swor Decl. 5-7, 10.
C. Because of the nature of their calls and emails, and the identities and locations of
those with whom they communicate, plaintiffs have a well-founded belief that
their communications are being intercepted under the Program. Exh. I, Diamond
Decl. 10; Exh. J, Hollander Decl. 12-13, 16-24; Exh. K, McKelvey Decl. 8-
10, 12; Exh. L, Swor Decl. 8-11.
D. Plaintiffs have ceased engaging in certain conversations on the phone and by

email. Exh. I, Diamond Decl. 12; Exh. J, Hollander Decl. 16, 20, 23-25; Exh.
K, McKelvey Decl. 16; Exh. L, Swor Decl. 9, 11-16.
E. The Program is disrupting the ability of the plaintiffs to talk with sources, locate
witnesses, conduct scholarship, engage in advocacy, and engage in other activity
protected by the First Amendment. Exh. I, Diamond Decl. 11, 13-15; Exh. J,
Hollander Decl. 12, 16, 25; Exh. K, McKelvey Decl. 14-15; Exh. L, Swor
Decl. 9, 11-12, 14-16.
F. The Program has exacted a financial cost from plaintiffs as well. Because the
Program inhibits their ability to speak by telephone with sources, clients and
others essential to their work, several of the plaintiffs now must travel long
distances to meet personally with these individuals. Exh. I, McKelvey Decl.
16-17; Exh. J, Hollander Decl. 20, 23-25; Exh. L, Swor Decl. 13-14.
_s/Ann Beeson_______________
ANN BEESON
Attorney of Record
JAMEEL JAFFER
New York, NY 10004-2400
(212) 549-2500
annb@aclu.org
s/Michael J. Steinberg__________
KARY L. MOSS
(313) 578-6814
March 9, 2006

SOUTHERN DIVISION
AMERICAN CIVIL LIBERTIES UNION; AMERICAN

CIVIL LIBERTIES UNION FOUNDATION;
AMERICAN CIVIL LIBERTIES UNION OF
MICHIGAN; COUNCIL ON AMERICAN-ISLAMIC
RELATIONS; COUNCIL ON AMERICAN-ISLAMIC
RELATIONS MICHIGAN; GREENPEACE, INC.; Case No. 2:06cv10204
NATIONAL ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS; JAMES BAMFORD; LARRY Hon. Anna Diggs Taylor
DIAMOND; CHRISTOPHER HITCHENS; TARA
MCKELVEY; and BARNETT R. RUBIN,
Plaintiffs,
v.

GENERAL KEITH B. ALEXANDER, in his official
capacity as Director of the National Security Agency
and Chief of the Central Security Service,
Defendants.
MEMORANDUM IN SUPPORT OF
ANN BEESON
Attorney of Record
JAMEEL JAFFER
New York, NY 10004-2400
(212) 549-2500
annb@aclu.org
KARY L. MOSS
(313) 578-6814
March 9, 2006
2
TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................................................... i
INTRODUCTION .......................................................................................................................... 1
LEGAL AND FACTUAL BACKGROUND ................................................................................. 1
A. Statutory Provisions ................................................................................................. 1
B. The Program............................................................................................................. 2
C. The Harm to Plaintiffs.............................................................................................. 4
ARGUMENT.................................................................................................................................. 8
I. THE PROGRAM VIOLATES THE ADMINISTRATIVE PROCEDURES

ACT BECAUSE IT AUTHORIZES SURVEILLANCE THAT IS
PROHIBITED BY STATUTE ............................................................................... 9
A. FISA and Title III were enacted in response to a history of unchecked

and abusive surveillance by the Executive ..................................................... 9
B. FISA and Title III provide the exclusive means by which the
Executive can engage in electronic surveillance within the United
States. ............................................................................................................ 11
C. The Program fails to comply with the requirements of FISA and

Title III .......................................................................................................... 16
II. THE PROGRAM VIOLATES THE PRINCIPLE OF SEPARATION

OF POWERS BECAUSE IT INVOLVES SURVEILLANCE THAT
CONGRESS HAS SPECIFICALLY PROHIBITED ............................................ 17
A. The Presidents power is at its lowest ebb because Congress has

expressly prohibited his actions.. ................................................................. 17
B. The Presidents power as Commander-in-Chief does not authorize

him to disregard acts of Congress............................................................... 23
III. THE PROGRAM VIOLATES THE FOURTH AMENDMENT BECAUSE

IT AUTHORIZES THE INTERCEPTION OF PRIVATE
COMMUNICATIONS WITHOUT A WARRANT AND IS
MANIFESTLY UNREASONABLE ...................................................................... 25
A. The Program violates the Fourth Amendment because it

authorizes the interception of phone calls and emails without a
warrant ......................................................................................................... 25
B. The warrant requirement applies with full force to foreign

intelligence surveillance within the United States. ...................................... 28
C. The Program violates the Fourth Amendment because it does not

require executive officials to satisfy the probable cause standard
before surveillance begins............................................................................ 33
D. The Program violates the Fourth Amendment because neither the

President nor the Attorney General authorizes each electronic
surveillance .................................................................................................. 34
IV. THE PROGRAM VIOLATES THE FIRST AMENDMENT BY

PERMITTING THE NSA TO INTERCEPT PROTECTED
COMMUNICATIONS WITHOUT COMPLYING WITH
CONSTITUTIONALLY MANDATED SAFEGUARDS ................................... 36
A. The Program authorizes the interception of private communications

that are protected by the First Amendment.................................................. 36
B. The Program violates the First Amendment because it authorizes

the NSA to intercept private conversations without first
demonstrating a compelling interest and narrowly tailoring its
interceptions to that interest ......................................................................... 39
C. The Program violates the First Amendment because it authorizes the

NSA to intercept private conversations without judicial oversight ............. 40
CONCLUSION............................................................................................................................. 42
4
Cases
A Quantity of Copies of Books v. Kansas, 378 U.S. 205 (1964)....................................... 41
Afroyim v. Rusk, 387 U.S. 253 (1967) .............................................................................. 18
Alliance To End Repression v. City of Chicago, 627 F. Supp. 1044 (N.D. Ill. 1985) ...... 40
Almeida-Sanchez v. United States, 413 U.S. 266 (1973).................................................. 33
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ....................................................... 9
Bates v. City of Little Rock, 361 U.S. 516 (1960)............................................................. 39
Berger v. New York, 388 U.S. 41 (1967) .................................................................... 26, 28
Blake v. Wright, 179 F.3d 1003 (6th Cir. 1999). .............................................................. 25
Brown v. Socialist Workers 74 Campaign Comm., 459 U.S. 87 (1982).......................... 39
Camara v. Municipal Court, 387 U.S. 523 (1967) ..................................................... 27, 34
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ................................................................... 8
Chimel v. California, 395 U.S. 752 (1969)....................................................................... 26
City of Lakewood v. Plain Dealer Publg Co., 486 U.S. 750 (1988) ............................... 41
Clark v. Library of Congress, 750 F.2d 89 (D.C. Cir. 1984)............................................ 40
Clinton v. Jones, 520 U.S. 681 (1997).............................................................................. 18
Dalia v. United States, 441 U.S. 238 (1979). ................................................................... 27
Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866)............................................................ 23, 25
Florida v. J.L., 529 U.S. 266 (2000)................................................................................. 34
Freedman v. Maryland, 380 U.S. 51 (1965)..................................................................... 41
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990)....................................................... 41
Gibson v. Fla. Legislative Investigative Comm., 372 U.S. 539 (1963) ............................ 39
i
Gonzales v. Oregon, 126 S. Ct. 904 (2006) ...................................................................... 14
Griffin v. Wisconsin, 483 U.S. 868 (1987)........................................................................ 34
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ............................................................. 14, 23, 24
Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934)...................................... 23
In re First Natl Bank, 701 F.2d 115 (10th Cir. 1983) ..................................................... 40
In re Grand Jury Proceedings, 776 F.2d 1099 (2d Cir. 1985) ......................................... 40
In re Grand Jury Subpoena to Kramerbooks & Afterwords Inc., 26 Med. L. Rptr. 1599 40
J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Intl, Inc., 534 U.S. 124 (2001) ................... 14
Katz v. United States, 389 U.S. 347 (1967) ............................................................... passim
Kirk v. Louisiana, 536 U.S. 635 (2002)............................................................................ 34
Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636 (1968) .................................................... 41
Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804) .............................................................. 25
Marcus v. Search Warrant, 367 U.S. 717 (1961) ....................................................... 36, 41
Marshall v. Bramer, 828 F.2d 355 (6th Cir. 1987)........................................................... 40
Maryland v. Garrison, 480 U.S. 79 (1987)................................................................. 27, 28
McDonald v. United States, 335 U.S. 451 (1948). ..................................................... 26, 27
Miller v. French, 530 U.S. 327 (2000) ....................................................................... 17, 18
Mistretta v. United States, 488 U.S. 361 (1989)............................................................... 18
Morales v. TWA, Inc., 504 U.S. 374 (1992)...................................................................... 14
NAACP v. Alabama, 357 U.S. 449 (1958)........................................................................ 38
New Jersey v. T.L.O., 469 U.S. 325 (1985) ...................................................................... 33
OConnor v. Ortega, 480 U.S. 709 (1987) ....................................................................... 34
Olmstead v. United States, 277 U.S. 438 (1928) .............................................................. 37
ii
Osborn v. United States, 385 U.S. 323 (1966).................................................................. 26
Paton v. La Prade, 469 F. Supp. 773 (D.N.J. 1978)......................................................... 40
Payton v. New York, 445 U.S. 573 (1980) ........................................................................ 26
Roaden v. Kentucky, 413 U.S. 496 (1973)........................................................................ 41
Shelton v. Tucker, 364 U.S. 479 (1960)............................................................................ 39
Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968)................................................ 18
Sigley v. City of Parma Heights, __ F.3d __, 2006 WL 305524 (6th Cir. Feb. 10, 2006).. 9
Skinner v. Ry. Labor Executives Assn, 489 U.S. 602 (1989)....33, 34
Stanford v. Texas, 379 U.S. 476 (1965)............................................................................ 36
Stanley v. Georgia, 394 U.S. 557 (1969).......................................................................... 36
Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002) .............................. 39
Terry v. Ohio, 392 U.S. 1 (1968) ...................................................................................... 34
United States v. Belfield, 692 F.2d 141 (D.C. Cir. 1982) ................................................. 11
United States v. Brown, 484 F.2d 418 (5th Cir. 1973)................................................ 33, 35
United States v. Buck, 548 F.2d 871 (9th Cir. 1977) ........................................................ 33
United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) .............................................. 33, 35
United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). .............................. 18
United States v. Dionisio, 410 U.S. 1 (1973).................................................................... 39
United States v. Ehrlichman, 546 F.2d 910 (D.C. Cir. 1976)........................................... 35
United States v. Hoffman, 334 F. Supp. 504 (D.D.C. 1971)............................................. 31
United States v. Karo, 468 U.S. 705 (1984) ..................................................................... 26
United States v. Nixon, 418 U.S. 683 (1974) .................................................................... 17
United States v. Robel, 389 U.S. 258 (1967) .................................................................... 24
iii
United States v. Smith, 27 F. Cas. 1192 (C.C.D.N.Y. 1806) (No. 16,342)....................... 17
United States v. Truong, 629 F.2d 908 (4th Cir. 1980) .............................................. 33, 34
United States v. U.S. Dist. Ct., 407 U.S. 297 (1972) ................................................. passim
Watkins v. United States, 354 U.S. 178 (1957)................................................................. 38
Whitney v. California, 274 U.S. 357 (1927) ..................................................................... 36
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ............................... passim
Zurcher v. Stanford Daily, 436 U.S. 547 (1978) ........................................................ 37, 41
Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975) ............................................ 31, 32, 37
Statutes
5 U.S.C. 706 9....9

18 U.S.C. 2510............................................................................................................. 1, 9
18 U.S.C. 2511............................................................................................... 1, 12, 14, 21
18 U.S.C. 2516................................................................................................................. 2
18 U.S.C. 2518........................................................................................................... 2, 10
18 U.S.C. 2520............................................................................................................... 12
50 U.S.C. 1801................................................................................................. 1, 2, 11, 12
50 U.S.C. 1803................................................................................................................. 2
50 U.S.C. 1805............................................................................................................... 16
50 U.S.C. 1809............................................................................................................... 12
50 U.S.C. 1810............................................................................................................... 12
50 U.S.C. 1811............................................................................................................... 13
Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) ....... 13
Detainee Treatment Act of 2005, Pub. L. No. 109-148, Div. A, tit. X, 1003, 119 Stat.
2739-2740 (2005).......................................................................................................... 22
National Security Act of 1947, Pub. L. No. 80-253 (1947).............................................. 22
USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001) ...................................... 22
Other Authorities
James Madison, The Federalist No. 47............................................................................. 18

Legislative Materials
FISA Annual Reports to Congress 1979-2004 ........................................................... 15, 16

Foreign Intelligence Surveillance Act of 1976: Hearings Before the Subcomm. On
Criminal Laws and Procedures of the Senate Comm. On the Judiciary, 94th Cong. 2d
Sess. 16 (1976).............................................................................................................. 20
iv
The National Security Agency and Fourth Amendment Rights: Hearings Before the Select
Committee To Study Governmental Operations with Respect to Intelligence Activities,
94th Cong. 2 (1975)...10
Intelligence Activities and the Rights of Americans, Book II, Final Report of the Select
Committee to Study Governmental Operations with Respect to Intelligence Activities,
United States Senate, S. REP. NO. 94-755 (1976)10
H. CONF. REP. NO. 95-1720 (1978), reprinted in 1978 U.S.C.C.A.N. 4048........... 20, 22
H. REP. NO. 95-1283 (1978)............................................................................................ 12
S. REP. NO. 95-604(I) (1977), reprinted in 1978 U.S.C.C.C.A.N. 3904 ...... 10, 11, 20, 21
S. REP. NO. 95-701 (1978), reprinted in 1978 U.S.C.C.A.N. 3973 .......................... 20, 21
v
INTRODUCTION
This lawsuit challenges the constitutionality of a secret government program,
authorized by President Bush in 2002, in which the National Security Agency (NSA)
intercepts the international telephone and Internet communications of Americans without
court approval (hereinafter the Program). The Program violates the Administrative
Procedures Act because it authorizes warrantless electronic surveillance that is expressly
prohibited by two federal statutes. The Program also violates separation of powers
because it was authorized by the President in excess of his executive authority and is
contrary to limits imposed by Congress. Finally, by seriously compromising the free
speech and privacy rights of the plaintiffs and others, the Program violates the First and
Fourth Amendments of the United States Constitution. In this Motion for Partial
Summary Judgment, plaintiffs seek a declaration that a central aspect of the Program is
unlawful, and a permanent injunction against its use.
LEGAL AND FACTUAL BACKGROUND
A. Statutory Provisions
Congress has enacted two statutes that together supply the exclusive means by
which electronic surveillance . . . and the interception of domestic wire, oral, and
electronic communications may be conducted. 18 U.S.C. 2511(2)(f) (emphasis
added). The first is Title III of the Omnibus Crime Control and Safe Streets Act of 1968
(Title III), 18 U.S.C. 2510 et seq., and the second is the Foreign Intelligence
Surveillance Act, 50 U.S.C. 1801 et seq. (FISA).
1
Title III authorizes the government to intercept wire, oral, or electronic
communications in investigations of certain enumerated criminal offenses, see 18 U.S.C.
2516, with prior judicial approval, see id. 2518. FISA governs the use of electronic
surveillance against foreign powers and their agents inside the United States, and defines
foreign agent to include individuals engaged in terrorism.1 The statute created the
Foreign Intelligence Surveillance Court, a court composed of seven (now eleven) federal
district court judges, and empowered this court to grant or deny government applications
for electronic surveillance orders in foreign intelligence investigations. See 50 U.S.C.
1803(a).
B. The Program
In the fall of 2001, the NSA launched a secret program to engage in electronic
surveillance, without prior judicial authorization, of the communications of people inside
the United States.2 President Bush authorized the Program in 2001 and has reauthorized
it more than thirty times.3
The NSA intercepts communications under the Program without obtaining a
warrant or any other type of judicial authorization.4 Nor does the President or the
1
FISA defines foreign agent to include a non-U.S. person a person who is not a U.S. citizen
or permanent resident who engages in international terrorism or activities in preparation
therefor. 50 U.S.C. 1801(b)(1)(C). FISA also defines foreign agent to include a U.S. citizen
or permanent resident who knowingly engages in . . . international terrorism, or activities that
are in preparation therefore, for or on behalf of a foreign power. Id. 1801(b)(2)(C). A
foreign power, includes a group engaged in international terrorism or activities in preparation
therefor. Id 1801(a)(4).
2
Plaintiffs Statement of Undisputed Facts (hereinafter SUF) 1A (Exh. A at 1881); SUF 1B
(Exh. B); SUF 11A (Exh. H); SUF 11B (Exh. B); SUF 11C (Exh. C); SUF 11D (Exh. B); SUF
2A (Exh. C); SUF 2B (Exh. D at 1889); SUF 2C (Exh. F); SUF 3A (Exh E); SUF 3B (Exh. F);
SUF 3C (Exh. B).
3
SUF 1A (Exh. A at 1881); SUF 4 (Exh. D at 1885)
4
SUF 11A (Exh. H); SUF 11B (Exh. B); SUF 11C (Exh. C); SUF 11D (Exh. B).
2
Attorney General authorize the interceptions.5 Instead, an NSA shift supervisor is
authorized to approve interceptions of communications.6
Under the Program, the NSA intercepts communications without probable cause
to believe that the surveillance targets have committed or are about to commit any crime,
and without probable cause to believe that the surveillance targets are foreign agents.7
Rather, the NSA intercepts communications when the agency has, in its own judgment,
merely a reasonable basis to conclude that one party to the communication is a member
of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al
Qaeda, or working in support of al Qaeda.8 Attorney General Alberto Gonzales has
conceded that the standard used is not criminal probable cause.9 General Michael
Hayden, Principal Deputy Director for National Intelligence, has suggested that the
standard is merely [i]nherent foreign intelligence value.10
Information collected under the Program is sometimes retained and sometimes
disseminated.11 The Attorney General has refused to specify the number of Americans
whose communications are being intercepted under the Program.12
The NSA is intercepting communications that are subject to the requirements of
FISA.13 As the Attorney General has acknowledged, the Foreign Intelligence
Surveillance Act . . . requires a court order before engaging in this kind of
5
SUF 12 (Exh. C).
6
SUF 13A (Exh. B); see also SUF 13B (Exh. H).
7
SUF 6J (Exh. H).
8
SUF 6G (Exh. B) (emphasis added); see also SUF 6A (Exh. C); SUF 6I (Exh. C); SUF 6B (Exh.
D at 1885); SUF 6C (Exh. A at 1881); SUF 6D (Exh. E); SUF 6E (Exh. F); SUF 6F (Exh. G);
SUF 6H (Exh. C).
9
SUF 6J (Exh. H); see also SUF 11C (Exh. C).
10
SUF 6K (Exh. C).
11
SUF 8 (Exh. H).
12
SUF 7 (Exh. B).
13
SUF 9 (Exh. B).
3
surveillanceunless otherwise authorized by statute or by Congress.14 Nonetheless, the
Program has been used in lieu of the procedures specified under the FISA.15 In the
words of General Michael Hayden, the Principal Deputy Director for National
Intelligence, this is a moreaggressive program than would be traditionally available
under FISA, in part because [t]he trigger is quicker and a bit softer than it is for a FISA
warrant.16
C. The Harm to Plaintiffs
Plaintiffs are a group of prominent journalists, scholars, attorneys, and national
nonprofit organizations who frequently communicate by telephone and email with people
outside the United States, including in the Middle East and Asia.17 Some of the plaintiffs,
in connection with scholarship, journalism, or legal representation, communicate with
people whom the United States government believes or believed to be terrorist suspects
or to be associated with terrorist organizations.18 Because of the nature of their calls and
emails, and the identities and locations of those with whom they communicate, plaintiffs
have a well-founded belief that their communications are being intercepted under the
Program.19
The Program is causing concrete and specific injury to plaintiffs and others. The
Program is disrupting the ability of the plaintiffs to talk with sources, locate witnesses,
14
Id.
15
SUF 10A (Exh. B); see also SUF 10B (Exh. C); SUF 10E (Exh. B); SUF 10F (Exh. C); SUF
10G (Exh. F).
16
SUF 10C (Exh. B); SUF 10D (Exh. C).
17
SUF 15A (Exh. I, Diamond Decl. 2-8; Exh. J, Hollander Decl. 2-12, 14-15; Exh. K,
McKelvey Decl. 2-7; Exh. L, Swor Decl. 2, 4, 7, 10).
18
SUF 15B (Exh. I, Diamond Decl. 9; Exh. J, Hollander Decl. 12-14, 17-24; Exh. K,
McKelvey Decl. 8-10; Exh. L, Swor Decl. 5-7, 10).
19
SUF 15C (Exh. I, Diamond Decl. 10; Exh. J, Hollander Decl. 12-13, 16-24; Exh. K,
McKelvey Decl. 8-10, 12; Exh. L, Swor Decl. 8-11).
4
conduct scholarship, engage in advocacy, and engage in other activity protected by the
First Amendment.20 Because of the Program, plaintiffs have ceased engaging in certain
conversations on the phone and by email.21 For example, the Program has limited the
ability of plaintiff Professor Larry Diamond to obtain sensitive information from his pro-
democracy activist contacts and throughout the Middle East, Africa and Asia.22 Because
the exposure of the confidential or sensitive information that these contacts provide
may cause their governments to retaliate against them, Professor Diamond has
stopped discussing such topics in [his] international phone calls and emails with these
individuals.23 The Program likewise interferes with the journalistic work of plaintiff
Tara McKelvey, who must communicate confidentially with sources in the Middle East
as an essential part of her work.24 Ms. McKelveys inability, because of the NSA
Program, to assure anonymity or privacy to her sources, many of whom are quite
frightened of the United States government and military, has prevented [her] from
obtaining information from some of these individuals.25
The program is also impairing the ability of attorneys who are members of
plaintiff National Association of Criminal Defense Lawyers to serve their clients
effectively.26 For example, the Program has interfered with Nancy Hollanders
communications with clients and other individuals in the Middle East and Europe; these
20
SUF 15E (Exh. I, Diamond Decl. 11, 13-15; Exh. J, Hollander Decl. 12, 16, 25; Exh. K,
McKelvey Decl. 14-15; Exh. L, Swor Decl. 9, 11-12, 14-16).
21
SUF 15D (Exh. I, Diamond Decl. 12; Exh. J, Hollander Decl. 16, 20, 23-25; Exh. K,
McKelvey Decl. 16; Exh. L, Swor Decl. 9, 11-16).
22
SUF 15E (Exh. I, Diamond Decl. 15).
23
SUF 15D (Exh. I, Diamond Decl. 12).
24
SUF 15E (Exh. K, McKelvey Decl. 14).
25
SUF 15E (Exh. K, McKelvey Decl. 15).
26
SUF 15E (Exh. J, Hollander Decl. 12, 16, 25; Exh. K, Swor Decl. 9, 11-12, 14-16).
5
communications are necessary to Ms. Hollanders effective representative of her clients.27
Likewise, William Swor cannot discuss factual issues with witnesses over the phone for
fear of interception and as a result he cannot obtain exculpatory and other helpful
evidence that could be vital to the defense of his clients.28 As Mr. Swor explains, he
would violate his ethical obligations by discussing via international telephone call or
email some particularly sensitive information that may assist his clients, because he
cannot be certain that such communications are confidential.29
The Program has exacted a financial cost from plaintiffs as well. Because the
Program inhibits their ability to speak by telephone with sources, clients and others
essential to their work, several of the plaintiffs now must travel long distances to meet
personally with these individuals.30 The Program is forcing McKelvey, Hollander, and
Swor to take such trips at substantial cost to fulfill their professional
responsibilities.31
SUMMARY OF ARGUMENT
The Program empowers executive officers to engage in unchecked surveillance
that is profoundly undemocratic: secret electronic eavesdropping on Americans without
court approval. To guard against abusive surveillance practices by the Executive that
threatened our democracy in the past, Congress passed two statutes Title III and the
Foreign Intelligence Surveillance Act which together provide the exclusive means by
which the government can engage in electronic surveillance. These statutes require the
27
SUF 15E (Exh. J, Hollander Decl. 25).
28
SUF 15E (Exh. L., Swor Decl. 9, 16).
29
Id.
30
SUF 15F (Exh. K, McKelvey Decl. 16-17; Exh. J, Hollander Decl. 20, 23-25; Exh. L,
Swor Decl. 13-14).
31
Id.
6
government to obtain court approval, establish probable cause, and satisfy other
procedural requirements before it can eavesdrop on the private conversations of
Americans. Because the Program authorizes the NSA to conduct warrantless electronic
surveillance that is expressly prohibited by FISA and Title III, it violates the
Administrative Procedures Act.
The Program also violates separation of powers because it authorizes the NSA to
engage in activity that Congress has expressly prohibited. The division of power among
the three branches of government was designed to create a system of checks and balances
that would prevent any one branch of government from having absolute power.
Consistent with this principle, the Supreme Court has held that the Presidents power is at
its lowest ebb when the President acts contrary to the express will of Congress. Congress
clearly intended that FISA and Title III would provide the exclusive means by which the
Executive could engage in electronic surveillance even in times of war or emergency.
Moreover, nothing in Article II of the Constitution allows the President, even when
acting as Commander-in-Chief, to authorize warrantless interceptions of Americans
private conversations unilaterally and contrary to the express will of Congress. Indeed,
one of the core purposes behind our system of checks and balances is to ensure that no
one branch of government has too much power in times of war.
Furthermore, regardless of whether the Program is prohibited or authorized by
Congress, any government interception of the private phone calls and emails of
Americans must comply with the Fourth and First Amendments. The Supreme Court has
cautioned that electronic eavesdropping poses a particularly grave threat to liberty
because of its potential for abuse. Eavesdropping, with its broad, intrusive sweep, is
7
dangerously similar to the general searches the framers drafted the Fourth Amendment to
prevent. Under the Program, NSA officers execute warrantless searches at their own
discretion. No neutral judge reviews the search, or requires executive officers to satisfy
the probable cause requirement or limit the scope and duration of the surveillance. In
Keith, the Supreme Court held that the warrant requirement was a constitutionally
mandated safeguard even for wiretaps intended to protect domestic national security.
United States v. U.S. Dist. Ct., 407 U.S. 297 (1972) (hereinafter Keith). The Supreme
Courts reasoning in Keith applies with equal force to foreign intelligence surveillance
conducted inside the United States. The Program clearly violates the Fourth
Amendments protection against unreasonable searches.
The Fourth Amendment protection against unwarranted searches and the First
Amendment right to speak freely without government intrusion are closely linked.
Because of the threat to free speech, a long line of cases holds that the government cannot
investigate First Amendment activity unless it first establishes a compelling interest and
proves its investigation is substantially related to that interest. The Program fails to
satisfy this heightened scrutiny. The Program also fails to satisfy the strict procedural
requirements of the First Amendment because it permits the NSA to obtain
constitutionally protected information with no judicial oversight.
ARGUMENT
Summary judgment is appropriate if there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a matter of law. Fed. R. Civ.
P. 56(c); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v.
8
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sigley v. City of Parma Heights, __ F.3d
__, 2006 WL 305524 (6th Cir. Feb. 10, 2006) (slip copy).
Administration officials have conceded publicly that the Program authorizes the
NSA to conduct electronic surveillance that is subject to FISA without complying with
the requirements of FISA. Because there is no genuine issue of material fact as to this
aspect of the Program, plaintiffs are entitled to judgment as a matter of law on their claim
that this aspect of the Program violates the Administrative Procedures Act, separation of
powers, and the First and Fourth Amendments to the United States Constitution.32
I. THE PROGRAM VIOLATES THE ADMINISTRATIVE PROCEDURES

ACT BECAUSE IT AUTHORIZES SURVEILLANCE THAT IS
PROHIBITED BY STATUTE.
Under the Administrative Procedures Act (APA), a court shall hold unlawful
and set aside agency action that is otherwise not in accordance with law, that is taken
in excess of statutory . . . limitations, or that is in excess of statutory . . . authority. 5
U.S.C. 706(2)(A), 706(2)(C). The Program violates the APA because it authorizes
warrantless electronic surveillance that is expressly prohibited by FISA and Title III.
A. FISA and Title III were enacted in response to a history of unchecked

and abusive surveillance by the Executive.
In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court held that
individuals have a constitutionally protected privacy interest in the content of their
telephone calls. In response, Congress enacted Title III in 1968. See 18 U.S.C. 2510
et. seq. Through Title III, Congress imposed a strict warrant requirement and other
32
Plaintiffs label this motion one for partial summary judgment because plaintiffs Complaint
alleges that the NSA is also engaged in some datamining practices that, while unconstitutional,
may not fall within FISA. See, e.g., Complaint, 53.
9
procedural standards on electronic surveillance conducted in law enforcement
investigations. See 18 U.S.C. 2518.
Even after passage of Title III, in the 1960s and 1970s the executive branch
continued to engage in widespread warrantless electronic surveillance of people in the
United States, claiming that such surveillance was justified to protect the nations
security. After extensive congressional investigation of these practices by the Church
and Pike Committees, the public learned that the Executive had engaged in warrantless
wiretapping of numerous United States citizens including journalists, activists, and
members of Congress who engaged in no criminal activity and who posed no genuine
threat to the national security. S. REP. NO. 95-604(I), at 6 (1977), reprinted in 1978
U.S.C.C.A.N. 3904, 3909 (quoting Church Committee Report, Book II, 12).
Among the most troubling practices Congress investigated and eventually sought
to safeguard against through FISA were certain domestic spying activities by the NSA
that bear a striking resemblance to those conducted under the current Program. See
Intelligence Activities and the Rights of Americans, Book II, Final Report of the Select
Committee to Study Governmental Operations with Respect to Intelligence Activities,
United States Senate, S. REP. NO. 94-755, 96 (1976) (hereinafter Church Comm. Book.
II) (In the late 1960s . . . NSA, acting in response to presidential pressure, turned their
technological capacity and great resources toward spying on certain Americans.); The
National Security Agency and Fourth Amendment Rights: Hearings Before the Select
Committee To Study Governmental Operations with Respect to Intelligence Activities,
94th Cong. 2 (1975) (hereinafter Church Comm. Rep. Vol. 5), at
http://cryptome.org/nsa-4th.htm (Senator Church noting that Congress had a particular
10
obligation to examine the NSA, in light of its tremendous potential for abuse). In its
final report, the Church Committee warned that [u]nless new and tighter controls are
established by legislation, domestic intelligence activities threaten to undermine our
democratic society and fundamentally alter its nature. Church Comm. Rep. Book II, at
1.
In response to the abuses documented by the Church Committee, as well as the
Supreme Courts decision in Keith, 407 U.S. 297 (1972), Congress enacted the Foreign
Intelligence Surveillance Act of 1978. 50 U.S.C. 1801 et. seq.; see also United States
v. Belfield, 692 F.2d 141, 145 (D.C. Cir. 1982) (Responding to post-Watergate concerns
about the Executives use of warrantless electronic surveillance, Congress, with the
support of the Justice Department, acted in 1978 to establish a regularized procedure for
use in the foreign intelligence and counterintelligence field.). As the Senate Judiciary
Committee explained, FISA was meant to spell out that the executive cannot engage in
electronic surveillance within the United States without a prior Judicial warrant. S.
REP. NO. 95-604(I), 1978 U.S.C.C.A.N. at 3908; see also id. at 3910 (FISA designed to
curb the practice by which the Executive branch may conduct warrantless electronic
surveillance on its own unilateral determination that national security justifies it).
Congress enacted Title III and FISA with the express intention of prohibiting the
executive branch from engaging in the activity the President has now authorized the NSA
to conduct under the Program: unchecked electronic surveillance in the name of national
security.
B. FISA and Title III provide the exclusive means by which the Executive
can engage in electronic surveillance within the United States.
11
Together, FISA and Title III supply the exclusive means by which electronic
surveillance . . . and the interception of domestic wire, oral, and electronic
communications may be conducted. 18 U.S.C. 2511(2)(f) (emphasis added). FISA
provides that no one may engage in electronic surveillance except as authorized by
statute, 50 U.S.C. 1809(a)(1), and both FISA and Title III impose civil and criminal
penalties for electronic surveillance undertaken without statutory authority, see id.
1809, 1810; 18 U.S.C. 2511, 2520.
FISA and Title III define electronic surveillance to include the interception of
any wire or radio communication by intentionally targeting the communications to or
from a particular United States person.33 Electronic surveillance also includes the
interception of any wire communication that occurs within the United States without the
consent of any party to the communication.34 Under this definition, either a wholly
domestic telephone call or an international telephone call can be the subject of electronic
surveillance . . . if the acquisition of the content of the call takes place in the United
States. H. REP. NO. 95-1283, at 51 (1978). Executive branch officials have publicly
acknowledged that the Program involves electronic surveillance as defined by FISA.35
33
50 U.S.C. 1801(f)(1) (electronic surveillance includes the acquisition by an electronic,
mechanical, or other surveillance device of the contents of any wire or radio communication sent
by or intended to be received by a particular, known United States person who is in the United
States, if the contents are acquired by intentionally targeting that United States person, under
circumstances in which a person has a reasonable expectation of privacy and a warrant would be
required for law enforcement purposes); see also 18 U.S.C. 2511(2)(f) (Title III adopts the
FISA definition of electronic surveillance).
34
50 U.S.C. 1801(f)(2) (electronic surveillance includes the acquisition by an electronic,
mechanical, or other surveillance device of the contents of any wire communication to or from a
person in the United States, without the consent of any party thereto, if such acquisition occurs in
the United States).
35
SUF 9 (Exh. B).
12
FISA governs electronic surveillance of Americans even in times of war. While
FISA generally prohibits surveillance without prior judicial authorization, FISA allows
the Executive to engage in warrantless surveillance for fifteen days after a formal
declaration of war.36 After fifteen days, the Executive must obtain a FISA warrant to
continue the electronic surveillance.37 Congress specifically rejected a proposal that
would have allowed for warrantless surveillance for periods of up to one year after a
formal declaration of war.38 FISA and Title III also provide the exclusive means, strictly
limited to 72 hours, to conduct warrantless surveillance in the event of an emergency.39
Title III contains a similar emergency provision. 18 U.S.C. 2518.
Despite the clear language of FISA and Title III, the Administration has argued
publicly that Congress authorized the President to engage in warrantless wiretapping
when it passed the Authorization for Use of Military Force (AUMF) against al Qaeda.40
The Administrations reading of the AUMFs general language is in direct conflict with
FISAs specific and unequivocal prohibition on electronic surveillance conducted outside
of the bounds of FISA and Title III. Well-accepted rules of statutory interpretation favor
specific provisions over general ones in cases of conflict. See, e.g., Morales v. TWA, Inc.,
36
50 U.S.C. 1811 (Notwithstanding any other law, the President, through the Attorney
General, may authorize electronic surveillance without a court order under this subchapter to
acquire foreign intelligence information for a period not to exceed fifteen calendar days following
a declaration of war by the Congress.).
37
Id.
38
See H.R. CONF. REP. NO. 95-1720, at 16 (1978), reprinted in 1978 U.S.C.C.A.N. 4048, 4063.
The 15-day period was intended to allow time for consideration of any amendment to [FISA]
that may be appropriate during a wartime emergency. Id. at 4063.
39
50 U.S.C. 1805(f) (Attorney General may authorize warrantless surveillance where an
emergency situation exists, but must inform a FISA judge not more than 72 hours later, and
must obtain a FISA warrant to continue the surveillance).
40
Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (authorizing
the President to use all necessary and appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred
on September 11, 2001, or harbored such organizations or persons).
13
504 U.S. 374, 384-85 (1992). The AUMF language of authorization all necessary and
appropriate force is of the most general nature. Electronic surveillance inside the
United States is not mentioned at all.41 By contrast, the unmistakable congressional
command in FISA that FISA and the criminal wiretap laws are to be the exclusive
means by which electronic surveillance . . . may be conducted, 18 U.S.C. 2511(2)(f)
is aimed precisely and directly at the type of conduct in which the Administration has
engaged. The contention that Congress intended to brush aside such a specific and
deliberate scheme of regulation with the most vague and general of authorizations defies
common sense. As the Supreme Court has recently admonished, Congress does not
alter the fundamental details of a regulatory scheme in vague terms or ancillary
provisions it does not, one might say, hide elephants in mouseholes. Gonzales v.
Oregon, 126 S. Ct. 904, 921 (2006) (citation and internal quotation marks omitted).42
The Administrations position requires a finding that Congress implicitly repealed
three key components of FISA and Title III when it passed the AUMF: the exclusive
means provision, FISAs limited fifteen-day wartime exemption, and the emergency
provisions of FISA and Title III. Repeals by implication are rarely recognized, and can
be established only by overwhelming evidence that Congress intended the repeal.
J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Intl, Inc., 534 U.S. 124, 137 (2001). Here
there is no such evidence. Moreover, Congress had ample opportunity to amend FISA
41
In fact, the Administration sought to include the words in the United States after the words
appropriate force so that the authorization would apply to domestic as well as foreign actions.
Congress flatly rejected the request. See Tom Daschle, Power We Didnt Grant, WASH. POST,
Dec. 23, 2005, at A21.
42
The Administration has relied on Hamdi v. Rumsfeld, 542 U.S. 507, 508 (2004), to support its
expansive interpretation of the AUMF, but that case held only that the necessary and appropriate
force authorized in the AUMF included authority to detain combatants on a foreign battlefield,
not that it included the much broader authority to engage in warrantless wiretapping on American
soil.
14
along the lines the Administration wishes it had: in response to the September 11 attacks,
Congress expanded FISA in both the Patriot Act, Pub. L. No. 107-56, 115 Stat. 272
(2001) (amending FISA through, inter alia, Section 218s and 215) and Intelligence
Reform and Terrorism Prevention Act., Pub. L. No. 108-458, 118 Stat. 3638 (2004)
(amending, inter alia, the definition of foreign agent under FISA). Notably, neither
legislative enactment repealed the exclusive means provision. In fact, the
Administration has acknowledged that Congress would not have agreed to amend or
repeal provisions of FISA; it decided not to ask Congress to amend FISA to authorize the
Program because Congress had indicated it would likely reject such an amendment.43
For over twenty-five years, the Executive branch has successfully used the FISA
process to intercept the communications of alleged terrorists and spies in the United
States. Statistics released annually by the Justice Department suggest that the Executive
branch has not been hampered in any way in its ability to seek and obtain FISA warrants.
Justice Department statistics indicate that, between 1978 and 2004, the government
submitted almost 19,000 surveillance applications to the FISA Court. See FISA Annual
Reports to Congress 1979-2004, at http://www.fas.org/irp/agency/doj/fisa/#rept. The
FISC denied only four of these applications; granted approximately 180 applications with
modifications; and granted the remaining 18,451 without modifications. Moreover, the
43
Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal
Deputy
Director for National Intelligence (Dec. 19, 2005), available at
http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html (We have had discussions
with
Congress in the past -- certain members of Congress -- as to whether or not FISA could be
amended to
allow us to adequately deal with this kind of threat, and we were advised that that would be
difficult, if not
impossible.).
15
number of applications made by the Justice Department and approved by the FISA Court
has dramatically increased since 2001. See id.
C. The Program fails to comply with the requirements of FISA and Title
III.
Both FISA and Title III require the Executive Branch to satisfy strict procedural
requirements before it may engage in electronic surveillance of Americans. To obtain a
court order for electronic surveillance under Title III, the Executive must demonstrate
probable cause for belief that an individual is committing, has committed, or is about to
commit one of the enumerated criminal offenses. 18 U.S.C. 2518(3)(a). The
Executive must also demonstrate, among other things, probable cause for belief that
particular communications concerning [the enumerated] offense will be obtained through
[the] interception, id. 2518(3)(b), and that normal investigative procedures have been
tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too
dangerous, id. 2518(3)(c).
To obtain an order from the FISA Court authorizing electronic surveillance of
foreign agents inside the United States, the Executive must demonstrate, among other
things, probable cause to believe that the target of the electronic surveillance is a foreign
power or an agent of a foreign power and that each of the facilities or places at which
the electronic surveillance is directed is being used, or is about to be used, by a foreign
power or an agent of a foreign power. 50 U.S.C. 1805(a)(3).
Although FISA and Title III require prior judicial approval of electronic
surveillance, under the Program the NSA is intercepting communications inside the
United States without prior judicial approval.44 Although Title III and FISA require a
44
SUF 11A (Exh. H); SUF 11B (Exh. B); SUF 11C (Exh. C); SUF 11D (Exh. B).
16
showing of probable cause before a court will authorize electronic surveillance, under the
Program the NSA is intercepting communications inside the United States without first
demonstrating probable cause.45 The Program wholly fails to meet the requirements of
FISA and Title III, and thus violates the Administrative Procedures Act.
II. THE PROGRAM VIOLATES THE PRINCIPLE OF SEPARATION OF

POWERS BECAUSE IT INVOLVES SURVEILLANCE THAT CONGRESS
HAS SPECIFICALLY PROHIBITED.
A. The Presidents power is at its lowest ebb because Congress has

expressly prohibited his actions.
The Constitution enumerates and separates the powers of the three branches of
Government . . . and it is this very structure of the Constitution that exemplifies the
concept of separation of powers. Miller v. French, 530 U.S. 327, 341 (2000) (internal
quotation marks omitted). At the same time, the Constitution enjoins upon its branches
separateness but interdependence, autonomy but reciprocity. Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). The President is not
free to disregard the laws enacted by Congress. See United States v. Nixon, 418 U.S. 683,
715 (1974) (noting that the President is not above the law); United States v. Smith, 27
F. Cas. 1192, 1230 (C.C.D.N.Y. 1806) (No. 16,342) (The president of the United States
cannot control the statute, nor dispense with its execution, and still less can he authorize a
person to do what the law forbids. If he could, it would render the execution of the laws
dependent on his will and pleasure; which is a doctrine that has not been set up, and will
not meet with any supporters in our government.).
The separation of powers doctrine also prohibits one branch from assuming all
power for itself at the expense of the others, especially where authority is meant to be
45
SUF 6J (Exh. H).
17
shared. See James Madison, The Federalist No. 47 (The accumulation of all powers . . .
in the same hands . . . may justly be pronounced the very definition of tyranny.); Clinton
v. Jones, 520 U.S. 681, 699 (1997) (The Framers built into the tripartite Federal
Governmenta self-executing safeguard against the encroachment or aggrandizement of
one branch at the expense of the other.) (quoting Buckley v. Valeo, 424 U.S.1, 122
(1976)); Miller, 530 U.S. at 342 (While the boundaries between the three branches are
not hermetically sealed, the Constitution prohibits one branch from encroaching on the
central prerogatives of another.) (internal quotation marks and citations omitted);
Mistretta v. United States, 488 U.S. 361, 382 (1989) (Concern of encroachment and
aggrandizementhas animated our separation-of-powers jurisprudence.).
Under the Constitution, Congress and the President share authority over foreign
intelligence gathering, as well as war powers.46 Because of these shared powers, any
evaluation of the Presidents authority to authorize the Program and disregard the express
will of Congress must begin with Youngstown, 343 U.S. 579. In Youngstown, the Court
held that that President lacked inherent authority to seize the nations steel mills even
46
The Constitution grants Congress substantial authority to legislate in the areas of foreign
intelligence gathering, war powers, and foreign affairs. See U.S. Const. art. I, 8, cl. 18
(necessary and proper clause); id. 8, cl. 1 (granting Congress power to provide for the common
Defence and general Welfare of the United States); id. 8, cl. 11 (granting power "[t]o declare
War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and
Water); id. 8, cl. 12 (granting power [t]o raise and support Armies); id. 8, cl. 13 (granting
power [t]o provide and maintain a Navy); id. 8, cl. 14 (granting power [t]o make Rules for
the Government and Regulation of the land and naval Forces); see also Afroyim v. Rusk, 387
U.S. 253, 256 (1967) (noting Congress has an implied power to deal with foreign affairs).
Congress also enjoys substantial authority to legislate in order to protect individual rights and
liberties, as it has done through FISA. See, e.g., Shelton v. United States, 404 F.2d 1292, 1298 n.
17 (D.C. Cir. 1968) (recognizing the broad power in Congress to legislate to protect civil and
individual liberties). The President has the authority to engage in foreign intelligence gathering
pursuant to his foreign affairs powers and his authority as Commander-in-Chief. See U.S. Const.
Art. II, 2 (The President shall be Commander in Chief of the Army and Navy of the United
States.); see also United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).
18
though he believed that a strike would cripple the war effort in Korea. Congress had
previously refused to adopt that method of settling labor disputes when it enacted the
comprehensive Labor Management Relations Act (LMRA). Id. at 586. The Court held
that the President lacked the authority for the seizure because the LMRA implied that
Congress intended to prohibit such actions.
In a concurring opinion, Justice Jackson noted that Presidential powers are not
fixed but fluctuate, depending upon their disjunction or conjunction with those of
Congress. Id. at 635. He then set forth an oft-cited paradigm for evaluating the proper
constitutional balance between congressional and executive authority. He distinguished
between 1) presidential action pursuant to an express or implied authorization of
Congress, in which case presidential authority is at its maximum; 2) presidential
action in the absence of either a congressional grant or denial of authority, which
Justice Jackson characterized as a zone of twilight; and 3) presidential action
incompatible with the expressed or implied will of Congress, in which case presidential
power is at its lowest ebb. Id. at 635-37 (emphasis added). Justice Jackson considered
the seizure of the steel mills to fall under the third category because Congress ha[d] not
left seizure of private property an open field but ha[d] covered it by three statutory
policies inconsistent with this seizure. Id. at 639.
Any evaluation of the legality of the Program must start from the recognition that
the Presidents power is at its lowest ebb because Congress has expressly prohibited
the conduct the President has authorized.47 By enacting FISA, Congress placed the
Presidents authority to intercept the calls and emails of people in the United States
47
For the reasons stated supra in Section I.B, the Authorization to Use Military Force did not
amend or repeal the relevant provisions of FISA or Title III.
19
squarely into Justice Jacksons third category. As the Senate Judiciary Committee
explained, the basis for FISA was
the understanding concurred in by the Attorney General that

even if the President [h]as an inherent Constitutional power to
authorize warrantless surveillance for foreign intelligence
purposes, Congress has the power to regulate the exercise of this
authority by legislating a reasonable warrant procedure governing
foreign intelligence surveillance.
S. REP NO. 95-604(I), 1978 U.S.C.C.A.N. at 3917.48 Indeed, Congress even explicitly
stated its intention to place the Presidents authority at its lowest ebb. See, e.g., H.
CONF. REP. NO. 95-1720, 1978 U.S.C.C.A.N. at 4064 (noting that the conferees intent
in adopting a broad exclusive means provision was to apply the standard set forth in
Justice Jacksons concurring opinion in the steel seizure case: When a President takes
measures incompatible with the express or implied will of Congress, his power is at the
lowest ebb); S. REP. NO. 95-701 at 64-65 (1978), reprinted in 1978 U.S.C.C.A.N.
3973, 4040-41.49 As Justice Jackson noted, the President does not have the authority
simply to ignore the law.
Notably, when Congress passed FISA, it also repealed a provision of Title III that
had been used by successive administrations to claim inherent power to engage in
48
See also id. at 3965 (emphasizing that [a]s to methods of acquisition which come within the
definition of electronic surveillance in [FISA], the Congress has declared that [FISA and Title
III], not any claimed presidential power, controls).
49
In addition, when testifying before a Senate Judiciary subcommittee in support of FISA, then-
Attorney General Levi stated, in response to the question whether a later President could come
along and disregards its terms: I really cannot imagine a President, if this legislation is in effect,
going outside the legislation for matters which are within the scope of this legislationbecause I
really do not think it is quite appropriate to describe the Presidential authority as being absolute
on the one hand, or nonexistent on the other[T]here is a middle category where, assuming
Presidential authority, that authority nevertheless, can be directed by the Congress. Foreign
Intelligence Surveillance Act of 1976: Hearings Before the Subcomm. On Criminal Laws and
Procedures of the Senate Comm. On the Judiciary, 94th Cong., 2d Sess. 16 (1976).
20
warrantless national security surveillance. Prior to the enactment of FISA, Title III
provided that,
[n]othing contained in this chapter. . . shall limit the constitutional

power of the President to take such measures as he deems
necessary to protect the Nation against actual or potential attack or
other hostile acts of a foreign power, to obtain foreign intelligence
information deemed essential to the security of the United States,
or to protect national security information against foreign
intelligence activities. Nor shall anything contained in this chapter
be deemed to limit the constitutional power of the President to take
such measures as he deems necessary to protect the United States
against the overthrow of the Government by force or other
unlawful means, or against any other clear and present danger to
the structure or existence of the Government.
18 U.S.C. 2511(3) (1977), repealed by FISA 201(c). FISA repealed that language and
replaced it with the exclusive means provision. 50
As the Senate Intelligence Committee emphasized, FISA establish[ed] the
exclusive United States law governing electronic surveillance in the United States for
foreign intelligence purposes, and prohibited the Executive from engaging in
warrantless surveillance outside the scope of the statute. S. REP. NO. 95-701, 1978
U.S.C.C.A.N. at 4016 (emphasizing that the President lacked any independent, or
inherent, authority to authorize electronic surveillance in any way contrary to the
provisions of [FISA]).51
50
Prior to the repeal of 2511(3), the Supreme Court recognized in Keith that electronic
surveillance is within the scope of congressional authority even when the Presidents authority
over national security is implicated. The Court found that the provision was neutral and that
Congress left presidential powers (over electronic surveillance) where it found them. 407 U.S.
at 303.
51
See also S. REP. NO. 95-604(I), 1978 U.S.C.C.A.N. at 3907 (noting that FISA does not
provide statutory authorization for the use of any technique other than electronic surveillance, and
combined [with Title III] it constitutes the exclusive means by which electronic surveillance . . .
may be conducted; the bill recognizes no inherent power of the President in this area); S. REP.
NO. 95-701, 1978 U.S.C.C.A.N. at 3977 (Senate Intelligence Committee explaining FISA is to
21
The House Conference Report also supports the conclusion that Congress
intended FISA and Title III to limit the Executives ability to engage in warrantless
surveillance. The conferees rejected language that would have made Title III and FISA
the exclusive statutory means by which electronic surveillance could be conducted, and
instead adopted language that makes the statutes the exclusive means. H.R. CONF.
REP. NO. 95-1720, 1978 U.S.C.C.A.N. at 4064 (emphasis added). Congresss decision
to omit the word statutory is further evidence that Congress intended to preclude claims
of inherent authority to engage in warrantless wiretapping.
Upholding the Presidents authority to authorize the Program would require the
Court to declare that the Presidents power over electronic surveillance in the United
States is exclusive. See Youngstown, 343 U.S. at 640 (Jackson, J., concurring) (noting
that Presidents seizure could be upheld only by holding that seizure of such strike-
bound industries is within his domain and beyond control by Congress). Such a holding
would render FISA unconstitutional or merely hortatory and would call into question the
constitutionality of a wide range of congressional enactments that regulate matters
involving intelligence, national security, and war. See, e.g., National Security Act of
1947, Pub. L. No. 80-253 (1947) (establishing the statutory framework for the U.S.
intelligence community); USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001)
(expanding the Executives surveillance powers, including its powers under FISA);
Detainee Treatment Act of 2005, Pub. L. No. 109-148, Div. A, tit. X, 1003, 119 Stat.
2739-40 (2005) (prohibiting the use of cruel, inhuman, and degrading treatment in
provide legislative authorization and regulation for all electronic surveillance conducted within
the United States for foreign intelligence purposes); id. at 4040 (Title III and FISA to be the
sole and exclusive statutory authority for electronic surveillance).
22
detention and interrogation). The separation of powers doctrine exists to ensure that such
an immense concentration of power never lies in one branch of government.52
B. The Presidents power as Commander-in-Chief does not authorize

him to disregard acts of Congress.
The President may not disregard acts of Congress even when exercising his
powers as Commander-in-Chief or during times of war or emergency. War and
emergency do not create or enhance constitutional powers. As the Supreme Court
emphasized in Home Building & Loan Assn v. Blaisdell:
Emergency does not create power. Emergency does not increase granted
power or remove or diminish the restrictions imposed upon power granted
or reserved. The Constitution was adopted in a period of grave emergency.
Its grants of power to the federal government and its limitations of the
power of the States were determined in the light of emergency, and they
are not altered by emergency. . . . [E]ven the war power does not remove
constitutional limitations safeguarding essential liberties.
290 U.S. 398, 425-26 (1934). Rather, one of the core purposes behind a system of
separation of powers is to ensure that even in times of war or emergency, one branch of
government cannot appropriate too much power. See, e.g., Ex parte Milligan, 71 U.S. (4
Wall.) 2, 120-21 (1866) (The Constitution of the United States is a law for rulers and
people, equally in war and in peace, and covers with the shield of its protection all classes
of men, at all times, and under all circumstances. No doctrine, involving more pernicious
consequences, was ever invented by the wit of man than that any of its provisions can be
suspended during any of the great exigencies of government.).
52
The Executives consolidation of power through the Program raises additional separation of
powers problems vis a vis the judiciary because it allows the Executive to infringe upon
individual constitutional rights without any judicial safeguard. See, e.g., Hamdi, 542 U.S. at 536
(plurality opinion) (Whatever power the United States Constitution envisions for the Executive
in its exchanges with other nations or with enemy organizations in times of conflict, it most
assuredly envisions a role for all three branches when individual liberties are at stake.).
23
As the Supreme Court recently warned, a state of war is not a blank check for the
President when it comes to the rights of the Nation's citizens. Hamdi, 542 U.S. at 536
(plurality opinion). Indeed, the courts must be especially vigilant where the Executive
justifies its actions in the name of national security. The Court has recognized that the
national security underpinnings of the war on terror, although crucially important, are
broad and malleable and particularly susceptible to abuse, id. at 520.
Striking the proper constitutional balance here is of great importance to

the Nation during this period of ongoing combat. But it is equally vital that
our calculus not give short shrift to the values that this country holds dear
It is during our most challenging and uncertain moments that our
[foundational constitutional principles are] most severely tested; and it is
in those times that we must preserve our commitment at home to the
principles for which we fight abroad.
Id. at 532; see also United States v. Robel, 389 U.S. 258, 264 (1967) (It would indeed be
ironic if, in the name of national defense, we would sanction the subversion of one of
those liberties which makes the defense of the Nation worthwhile); Youngstown, 343
U.S. at 642 (Jackson, J., concurring) ([N]o doctrine that the Court could promulgate
would seem to me more sinister and alarming than that a President whose conduct of
foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge
his mastery over the internal affairs of the country by his own commitment of the
Nations armed forces to some foreign venture.). Justice Jackson noted that separation
of powers concerns are heightened when the Commander in Chiefs powers are exercised
in the domestic sphere, 343 U.S. at 645, and emphasized that the Constitution did not
contemplate that the title Commander-in-Chief of the Army and Navy will constitute him
also Commander-in-Chief of the country, its industries and its inhabitants, id. at 643.
In the very few cases in which the Supreme Court has considered the
24
constitutionality of presidential actions taken under the war power that were either
unauthorized or prohibited by Congress, it has rejected the Presidents power to act.
Youngstown, 343 U.S. 579 (1952) (war in Korea did not authorize President to seize the
countrys steel mills, where Congress had impliedly prohibited such action); Little v.
Barreme, 6 U.S. (2 Cranch) 170 (1804) (where Congress had authorized the seizure of
vessels bound to French ports, the President could not authorize the capture of vessels
coming from French ports); see also Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866)
(rejecting claim of authority to try by military commission civilian accused of violating
the law of war in non-hostile territory).
Because the President had no authority to ignore FISA and Title III, the Program
violates separation of powers.
III. THE PROGRAM VIOLATES THE FOURTH AMENDMENT BECAUSE

IT AUTHORIZES THE INTERCEPTION OF PRIVATE
COMMUNICATIONS WITHOUT A WARRANT AND IS MANIFESTLY
UNREASONABLE.
Because the Program violates FISA and Title III, it is unlawful and should be
enjoined. Regardless of whether or not the Program violates these statutes, however, the
Program must be enjoined because it violates the most basic requirements of the Fourth
Amendment.
A. The Program violates the Fourth Amendment because it authorizes

the interception of phone calls and emails without a warrant.
It has been settled law for almost forty years that the Fourth Amendment prohibits
the government from indiscriminately listening to the telephone conversations of private
citizens. See Katz, 389 U.S. at 352; Blake v. Wright, 179 F.3d 1003, 1008 (6th Cir.
1999). The framers drafted the Fourth Amendment in large part to prevent the executive
25
Branch from engaging in the kind of general searches the fishing expeditions used by
King George to harass and invade the privacy of the colonists. Berger v. New York, 388
U.S. 41, 58 (1967). Electronic eavesdropping [b]y its very nature . . . involves an
intrusion on privacy that is broad in scope, Berger, 388 U.S. at 56, and thus bears a
dangerous similarity to the general warrants out of which our Revolution sprang. id. at
64 (Douglas, J., concurring).
Indeed, [f]ew threats to liberty exist which are greater than that posed by the use
of eavesdropping devices. Berger, 388 U.S. at 63. Electronic surveillance constitutes a
dragnet, sweeping in all conversations within its scope without regard to the
participants or the nature of the conversations. It intrudes upon the privacy of those not
even suspected of crime and intercepts the most intimate of conversations. Id. at 65
(Douglas, J., concurring). Because of the grave constitutional questions posed by
electronic surveillance, courts bear a heavier responsibility in supervising the
procedures that limit such surveillance. Osborn v. United States, 385 U.S. 323, 329 n.7
(1966).
The warrant requirement is no mere formalit[y] it is a crucial safeguard
against abuses by executive officers. McDonald v. United States, 335 U.S. 451, 455
(1948). As the Supreme Court has emphasized repeatedly, any search conducted without
a warrant is presumptively unreasonable. See United States v. Karo, 468 U.S. 705, 717
(1984); Payton v. New York, 445 U.S. 573, 586 (1980); Chimel v. California, 395 U.S.
752, 762-63 (1969). Over and again this Court has emphasized that the mandate of the
Fourth Amendment requires adherence to judicial processes, and that searches conducted
outside the judicial process, without prior approval by judge or magistrate, are per se
26
unreasonable under the Fourth Amendment subject only to a few specifically
established and well-delineated exceptions. Katz, 389 U.S. at 357 (citation, internal
punctuation, and footnotes omitted).
The Constitution requires that a warrant be issued by a neutral, disinterested
magistrate; that it be based on a demonstration of probable cause to believe that the
evidence sought will aid in a particular apprehension for a particular offense; and that it
particularly describe the things to be seized as well as the place to be searched. See Dalia
v. United States, 441 U.S. 238, 255 (1979). Each of these requirements serves a vital
interest in protecting an individuals privacy from government intrusion.
The requirement of a neutral, disinterested magistrate reflects the fundamental
constitutional premise that executive officers cannot be trusted to police themselves.
The right of privacy was deemed too precious to entrust to the discretion of those whose
job is the detection of crime and the arrest of criminals. Power is a heady thing; and
history shows that the police acting on their own cannot be trusted. McDonald, 335
U.S. at 455-56. Thus, the Constitution requires that the deliberate, impartial judgment
of a judicial officer be interposed between the citizen and the police. Katz, 389 U.S. at
357 (quoting Wong Sun v. United States, 371 U.S. 471, 481-82 (1963)) (internal
punctuation omitted). Probable cause, of course, is the standard by which a particular
decision to search is tested against the constitutional mandate of reasonableness.
Camara v. Municipal Court, 387 U.S. 523, 534 (1967). Its basic function is to ensure
that baseless searches shall not proceed. Keith, 407 U.S. at 316. Finally, the
particularity requirement limit[s] the authorization to search to the specific areas and
things for which there is probable cause to search in order to ensure[] that the search
27
will be carefully tailored. Maryland v. Garrison, 480 U.S. 79, 84 (1987). The
importance of the particularity requirement is especially great in the case of
eavesdropping because eavesdropping inevitably leads to the interception of intimate
conversations that are unrelated to the investigation. Berger, 388 U.S. at 56. Thus, with
respect to eavesdropping devices and wiretaps, the particularity requirement demands not
simply that the government describe in detail the communications it intends to intercept,
but also that it strictly limit the duration of the intercept. Id. at 58-60.
The Program is presumptively invalid under the Fourth Amendment because it
complies with none of the vital safeguards encompassed by the warrant requirement.
Under the Program, executive officers initiate warrantless searches at their own
discretion. No neutral, disinterested magistrate reviews surveillance conducted under the
Program and consequently there is no check against unlawful invasions of privacy. Nor
do executive officers satisfy any other aspect of the warrant requirement by limiting their
searches to instances in which they have probable cause or by delineating beforehand the
scope and duration of the search.53 The net effect of the Program is thus to render
individuals secure from Fourth Amendment violations only in the discretion of the
police. Katz, 389 U.S. at 358-59 (citation and internal quotation marks omitted).
B. The warrant requirement applies with full force to foreign intelligence

surveillance within the United States.
In Keith, the Supreme Court specifically held that the Fourth Amendment reaches
even electronic surveillance carried out in the name of national security. The Keith case
53
Although the Supreme Court suggested in Keith that Congress could tailor the predicate of the
probable cause requirement to the context of national security, Keith, 407 U.S. at 322-23 as
indeed Congress has done in FISA the Supreme Court made no suggestion that the quantum of
justification required by the Fourth Amendment is diminished when the national security is at
stake.
28
involved surveillance of a domestic organization and the Court had no occasion to
express an opinion as to the issues which may be involved with respect to activities of
foreign powers or their agents. Id. at 322. Nevertheless, the Courts rationale for
rejecting a national security exception to the Fourth Amendments warrant requirement
is the logical starting point for any analysis into whether the Fourth Amendment applies
to domestic surveillance for foreign intelligence purposes.
In Keith, the Court concluded that the Fourth Amendments promise of privacy
cannot properly be guaranteed if security surveillances may be conducted solely within
the discretion of the Executive Branch, because, in light of their responsibilities as law-
enforcers, investigators, and prosecutors, executive branch officials simply cannot
function as neutral and disinterested magistrates. Id. at 316-17. The historical
judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion
may yield too readily to pressures to obtain incriminating evidence and overlook
invasions of privacy and protected speech. Id. at 317.
The Court rejected the governments arguments that a warrant would unduly
frustrate the governments objective in collecting domestic security intelligence. Indeed,
it noted that security surveillances are especially sensitive because of the inherent
vagueness of the domestic security concept, the necessarily broad and continuing nature
of intelligence gathering, and the temptation to utilize such surveillances to oversee
political dissent. Id. at 320. The Court was likewise unpersuaded by the governments
claim that the judiciary lacked competence to handle security matters, which the
government posited would be too subtle and complex for judicial evaluation. Id. In
response, the Court noted that [c]ourts regularly deal with the most difficult issues of
29
our society, and the Court found no reason to believe that federal judges will be
insensitive to or uncomprehending of the issues involved in domestic security cases. Id.
The Court suggested instead that [i]f the threat is too subtle or complex for our senior
law enforcement officers to convey its significance to a court, one may question whether
there is probable cause for surveillance. Id. Nor would the process of obtaining a
warrant fracture the secrecy essential to official intelligence gathering, the Court
explained, as the judiciary has substantial experience handling sensitive and confidential
issues in other contexts. Id. at 320-321. Additionally, the non-public, non-adversary
nature of warrant application proceedings would help maintain confidentiality. Id. at
321.
All of the Courts reasons for refusing to exempt national security surveillance
from the warrant requirement apply with equal force in the context of investigations of
suspected foreign agents inside the United States. The indiscriminate wiretapping and
bugging of law-abiding citizens that the Keith Court rightly feared, see id. at 321, are no
less likely simply because executive agents may suspect that targets are foreign agents.
In the absence of judicial oversight, no one can be sure that surveillance targets are in fact
foreign agents. The executive branch simply asks the judiciary to trust it. But such an
abdication of oversight responsibility by the judiciary would be inconsistent with the very
nature of our constitutional system of checks and balances. Id. at 317 (The Fourth
Amendment contemplates a prior judicial judgment, not the risk that executive discretion
may be reasonably exercised. This judicial role accords with our basic constitutional
doctrine that individual freedoms will best be preserved through a separation of powers
30
and division of functions among the different branches and levels of Government.
(footnote omitted)).
The foundational premise of the Keith decision that a neutral and detached
magistrate is a necessary intermediary between Americans and executive officers is
equally strong where the targets of the investigation are suspected of being foreign
agents. If anything, executive officers can be expected to err more frequently when
investigating threats they believe to be foreign, because the officers may not believe
Americans rights are at stake. In addition, the concept of foreign security threats
contains at least as much inherent vagueness as the domestic security concept. Id. at
320. Nor is there any reason to believe the investigation of foreign agents inside the
United States is any less susceptible to the necessarily broad and continuing nature of
intelligence gathering, and the temptation to utilize such surveillances to oversee political
dissent. Id. Moreover, in light of the inherent vagueness of both concepts, judicial
efforts to distinguish between domestic and foreign threats would serve only to
introduce confusion and vagueness into the law. As the Supreme Court observed in Keith
itself, [n]o doubt there are cases where it will be difficult to distinguish between
domestic and foreign unlawful activities directed against the Government of the
United States where there is collaboration in varying degrees between domestic groups or
organizations and agents or agencies of foreign powers. Id. at 309 n.8.54
54
In fact, prior to the Keith decision, the government itself contended both in its briefing before
the Supreme Court in Keith, and elsewhere that an analytical distinction between domestic
and foreign threats was ill-advised because such threats were often intertwined. See Zweibon v.
Mitchell, 516 F.2d 594, 652 (D.C. Cir. 1975) (en banc) (plurality opinion) (discussing the
Solicitor Generals brief in Keith); United States v. Hoffman, 334 F. Supp. 504, 506 (D.D.C.
1971) (The government contends that foreign and domestic affairs are inextricably intertwined
and that any attempt to legally distinguish the impact of foreign affairs from the matters of
internal subversive activities is an exercise in futility.).
31
The judiciary is just as competent to handle sensitive information regarding
foreign national security threats as domestic. Warrant proceedings are just as secret in
the context of foreign intelligence gathering, so leaks are no more likely. In fact, more
than twenty-five years worth of experience with the FISA Court demonstrates that
members of the nations judiciary are fully capable of understanding the need to issue
warrants for national security purposes and of keeping secret the information they learn
in doing so.
It is worth noting, finally, that were the courts to recognize a foreign intelligence
exception to the warrant requirement, there would be no principled basis upon which to
confine such an exception to electronic surveillance alone. As one circuit court
explained, if the Executive can eavesdrop on the conversations of Americans without a
warrant in the name of foreign intelligence gathering, it is difficult to see why the
Executive lacks the prerogative to rummage through the books, papers, and other
effects of dissidents in the United States based on an Executive determination that they
posed a threat to national security. Zweibon, 516 F.2d at 618 n.67 (en banc) (plurality
opinion) (holding that warrant requirement applied to surveillance of Jewish Defense
League even where authorized by the Attorney General in the name of foreign
intelligence gathering for protection of the national security).55
55
Indeed, Attorney General Alberto Gonzales, when pressed on the point before the Senate
Judiciary Committee, refused to rule out the possibility that the present administration has
engaged in warrantless physical searches of homes or offices in pursuit of its national security
policies.
SENATOR SCHUMER: Has the government searched someone's home, an American
citizen, or office, without a warrant since 9/11, let's say?
ALBERTO GONZALES: To my knowledge, that has not happened under the terrorist
surveillance program, and I'm not going to go beyond that.
SENATOR SCHUMER: I don't know what that what does that mean, under the
terrorist surveillance program? The terrorist surveillance program is about wiretaps. This
32
In the wake of Keith, but before the passage of FISA, some cases held that there
was a foreign intelligence exception to the warrant requirement.56 These cases do not
apply in this Circuit. More importantly, they are inconsistent with the Supreme Courts
rationale in Keith, and their rationale has now been undermined by over twenty-five years
of experience under FISA. Indeed, FISA judges have had no difficulty understanding the
delicate and complex decisions that lie behind foreign intelligence surveillance, United
States v. Truong, 629 F.2d 908, 913 (4th Cir. 1980), well enough to grant the executive
nearly all the warrants it claimed to need.
C. The Program violates the Fourth Amendment because it does not

require executive officials to satisfy the probable cause standard
before surveillance begins.
The Supreme Courts Fourth Amendment cases clearly indicate that even a
search that may be performed without a warrant must be based, as a general matter, on
probable cause. Skinner v. Ry. Labor Executives Assn, 489 U.S. 602, 604 (1989); see
also New Jersey v. T.L.O., 469 U.S. 325, 340 (1985). For example, the Court has
cautioned that the constitutional allowance for warrantless searches of automobiles does
not declare a field day for the police in searching automobiles, because [a]utomobile or
no automobile, there must be probable cause for the search. Almeida-Sanchez v. United
States, 413 U.S. 266, 269 (1973). Likewise, [a]s Payton [v. New York, 445 U.S. 573
(1980)] makes plain, police officers need either a warrant or probable cause plus exigent
is about searching someone's home. It's different. So it wouldn't be done under the
surveillance program. I'm asking you if it has been done, period.
ALBERTO GONZALES: But now you're asking me questions about operations or
possible operations, and I'm not going to get into that, Senator.
Wartime Executive Power and the NSAs Surveillance Authority Before the Senate Judiciary
Committee, 109th Congress (Feb. 6, 2006).
56
See., e.g., Truong, 629 F.2d at 912-15; United States v. Butenko, 494 F.2d 593, 604-05 (3d Cir.
1974) (en banc); United States v. Buck, 548 F.2d 871, 875 (9th Cir. 1977); United States v.
Brown, 484 F.2d 418, 426 (5th Cir. 1973).
33
circumstances in order to make a lawful entry into a home. Kirk v. Louisiana, 536 U.S.
635, 638 (2002) (per curiam) (emphasis added). Certain warrantless searches, to be sure,
are permitted upon a lesser quantum of suspicion, but those cases generally involve stop
and frisk searches, see, e.g., Terry v. Ohio, 392 U.S. 1 (1968), administrative searches,
see, e.g., Camara, 387 U.S. 523, or searches for special needs, see, e.g., Skinner, supra.
Listening in on private phone conversations is far more intrusive than a stop and frisk,
see, e.g., Terry, 392 U.S. at 26, does not satisfy the criteria for administrative searches,
see, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873 (1987), and does not fall within the
narrow exception articulated in the special needs cases, see, e.g., OConnor v. Ortega,
480 U.S. 709, 720, 725 (1987) (plurality opinion) (citation and internal quotation marks
and alterations omitted) (noting that special needs doctrine is available only where the
warrant and probable cause requirement [are] impracticable.).
By the governments own admissions, under the Program an NSA shift supervisor
need not have probable cause of any kind before approving warrantless electronic
surveillance. Probable cause means probable cause and not merely reasonable grounds
or reasonable suspicion. See, e.g., Florida v. J.L., 529 U.S. 266, 272-73 (2000) (noting
distinction between reasonable suspicion and the higher standard of probable cause).
D. The Program violates the Fourth Amendment because neither the

President nor the Attorney General authorizes each electronic
surveillance.
Even courts that contrary to the rationale of Keith, and before the enactment of
FISA have recognized a foreign intelligence exception to the warrant requirement have
narrowly circumscribed its scope. See, e.g., Truong, 629 F.2d at 915 (exception limited
to surveillance conducted primarily for foreign intelligence reasons); Butenko, 494
34
F.2d at 606 (same). Some circuits have held that any foreign intelligence exception to the
warrant requirement is available only if there has been a specific authorization by the
President, or by the Attorney General as his chief legal advisor, for the particular case.
United States v. Ehrlichman, 546 F.2d 910, 925 (D.C. Cir. 1976); accord, Katz, 389 U.S.
at 364 (White, J., concurring) (arguing for a national security exception to the warrant
requirement where the President of the United States or his chief legal officer, the
Attorney General, has considered the requirements of national security and authorized
electronic surveillance as reasonable); Brown, 484 F.2d at 426 ([W]e reaffirm . . . that
the President may constitutionally authorize warrantless wiretaps for the purpose of
gathering foreign intelligence. (emphasis added)).
As the D.C. Circuit recognized, the power surreptitiously to intrude on the
privacy of citizens without the necessity of first justifying [the] action before an
independent and detached member of the judiciary is one easily subject to abuse.
Ehrlichman, 546 F.2d at 926. Therefore, if Presidential approval is to replace judicial
approval for foreign intelligence gathering, the personal authorization of the President or
his alter ego for these matters, the Attorney General is necessary to fix accountability and
centralize responsibility for insuring the least intrusive surveillance necessary and
preventing zealous officials from misusing the Presidents prerogative. Id.
Dispensing with even this minimal measure of accountability and oversight within
the executive branch would strip away all meaningful Fourth Amendment protection and
turn national security into a talisman that the executive could invoke to ward off any
judicial oversight of any kind. Relying on NSA shift supervisors to safeguard the privacy
rights of Americans would resurrect the precise evil against which the Fourth
35
Amendment was directed, by plac[ing] the liberty of every man in the hands of every
petty officer. Stanford v. Texas, 379 U.S. 476, 481 (1965) (quoting Boyd v. United
States, 116 U.S. 616, 625 (1886)) (internal quotation marks omitted). In summary,
because the electronic surveillance conducted under the Program does not comply with
the Fourth Amendments standards, plaintiffs are entitled to judgment as a matter of law.
IV. THE PROGRAM VIOLATES THE FIRST AMENDMENT BY

PERMITTING THE NSA TO INTERCEPT PROTECTED
COMMUNICATIONS WITHOUT COMPLYING WITH
CONSTITUTIONALLY MANDATED SAFEGUARDS.
A. The Program authorizes the interception of private communications

that are protected by the First Amendment.
The Supreme Court has long recognized that the Fourth Amendment protection
against unrestricted searches and the First Amendment guarantee of freedom of speech
are closely linked. The right to speak freely without government intrusion lies at the core
of First Amendment protection. Indeed, [our founders] believed that freedom to think as
you will and to speak as you think are means indispensable to the discovery and spread of
political truth. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J.,
concurring). The Bill of Rights was fashioned against the background of knowledge
that unrestricted power of search and seizure could also be an instrument for stifling
liberty of expression. Marcus v. Search Warrant, 367 U.S. 717, 729 (1961); see also
Stanford, 379 U.S. at 485 (observing that the First, Fourth and Fifth Amendments are
closely related, safeguarding not only privacy and protection against self-incrimination
but conscience and human dignity and freedom of expression as well (citation and
internal quotation marks omitted)); Stanley v. Georgia, 394 U.S. 557, 594 (1969) (The
makers of our Constitution . . . conferred, as against the government, the right to be let
36
alone the most comprehensive of rights and the right most valued by civilized man.
(quoting Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)
(internal quotation marks omitted)). Because of the convergence of First and Fourth
Amendment values, courts have considered the First Amendment implications of
government power to investigate expressive activity when determining whether the
exercise of such power complies with the Fourth Amendment. See, e.g., Zurcher v.
Stanford Daily, 436 U.S. 547, 564 (1978) (requirements of the Fourth Amendment must
be applied with scrupulous exactitude where First Amendment rights implicated). As
the Court cautioned in Keith, The price of lawful public dissent must not be a dread of
subjection to an unchecked surveillance power. 407 U.S. at 314.
The Supreme Court has noted that the danger to free speech is particularly acute
when the government investigates expressive activity because of a potential threat to
national security. Though the investigative duty of the executive may be stronger in
such cases, so also is there greater jeopardy to constitutionally protected speech. Keith,
407 U.S. at 313. The protections of the Fourth Amendment are particularly necessary
where the targets of official surveillance may be those suspected of unorthodoxy in their
political beliefs. Id. at 314. The danger to political dissent is acute where the
Government attempts to act under so vague a concept as the power to protect domestic
security. Given the difficulty of defining the domestic security interest, the danger of
abuse in acting to protect that interest becomes apparent. Id.; see also Zweibon, 516
F.2d at 635-36 (en banc) (plurality opinion) (To allow Executive Branch to make its
own determinations as to such matters invites abuse, and public knowledge that such
37
abuse is possible can exert a deathly pall over vigorous First Amendment debate on
issues of foreign policy.).
When the government investigates protected speech without first complying with
constitutional safeguards, it violates not only the Fourth Amendment but the First
Amendment. As the Supreme Court has explained, [a]buses of the investigative
process may imperceptibly lead to abridgment of protected freedoms because forced
revelations about a persons beliefs, expressions, or associations . . . concern[ing]
matters that are unorthodox, unpopular, or even hateful to the general public can have a
disastrous effect on the person whose private communications are thus disclosed.
Watkins v. United States, 354 U.S. 178, 197 (1957). Noting that compelled disclosure
of affiliation with groups engaged in advocacy may constitute [an] effective . . . restraint
on freedom of association, the Supreme Court has recognized the vital relationship
between freedom to associate and privacy in ones associations. . . . Inviolability of
privacy in group association may in many circumstances be indispensable to
preservation of freedom of association, particularly where a group espouses dissident
beliefs. NAACP v. Alabama, 357 U.S. 449, 462 (1958). Public knowledge that the
government is listening in on individuals most private expressions of their thoughts
creates a subtle and immeasurable effect on others, who begin to adhere to the most
orthodox and uncontroversial views and associations in order to avoid a similar fate at
some future time. Watkins, 354 U.S. at 197-98; see also NAACP v. Alabama, 357 U.S.
at 462-63 (the chilling effect of government investigation on associational freedom may
induce members to withdraw from the Association and dissuade others from joining it
because of fear of exposure of their beliefs shown through their associations and of the
38
consequences of this exposure); Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044,
1053 (Colo. 2002) ([G]overnmental inquiry and intrusion into the reading choices of
bookstore customers will almost certainly chill their constitutionally protected rights.).
B. The Program violates the First Amendment because it authorizes the

NSA to intercept private conversations without first demonstrating a
compelling interest and narrowly tailoring its interceptions to that
interest.
Because of the threat to free speech, a long line of cases holds that the
government must be held to a higher standard when it seeks to use its powers to
investigate expressive activity. Courts have made clear that the government cannot
investigate First Amendment activity unless it first establishes a compelling interest and
proves its investigation is substantially related to that interest.
It is an essential prerequisite to the validity of an investigation

which intrudes into the area of constitutionally protected rights of
speech, press, association and petition that the State convincingly
show a substantial relation between the information sought and a
subject of overriding and compelling state interest.
Gibson v. Fla. Legislative Investigative Comm., 372 U.S. 539, 546 (1963); see also
Brown v. Socialist Workers 74 Campaign Comm., 459 U.S. 87, 91-92 (1982); Shelton v.
Tucker, 364 U.S. 479, 488 (1960); Bates v. City of Little Rock, 361 U.S. 516, 524 (1960);
cf. United States v. Dionisio, 410 U.S. 1, 12 (1973) ([G]rand juries must operate within
the limits of the First Amendment. (quoting Branzburg v. Hayes, 408 U.S. 665, 708
(1972)). Following this line of authority, courts have applied heightened scrutiny to
assess First Amendment challenges to government investigations that trench on
39
expressive and associational interests. See, e.g., Marshall v. Bramer, 828 F.2d 355, 359
(6th Cir. 1987).57
By authorizing the NSA to intercept private conversations with no judicial
oversight and no clear standard, the Program utterly fails to satisfy heightened scrutiny.
Though the protection of national security is certainly a compelling interest in the
abstract, the Program comes nowhere close to meeting the narrow tailoring requirement
that the Constitution demands. Under the Program, an NSA shift supervisor can initiate
eavesdrops of unspecified scope and duration on anyone in America whom the shift
supervisor believes may be affiliated with terrorist organizations. The breadth of the
Program has already had a substantial chilling effect on protected speech. See supra
Legal and Factual Background, Section C.
C. The Program violates the First Amendment because it authorizes the

NSA to intercept private conversations without judicial oversight.
The Program is inconsistent with the First Amendment for the additional reason
that it permits the FBI to obtain constitutionally protected information without judicial
oversight. In a long line of cases, the Supreme Court has held that executive officials
cannot, consistent with the Constitution, be invested with the unilateral authority to
censor communications or seize records protected by the First Amendment. These cases
57
See also In re Grand Jury Proceedings, 776 F.2d 1099, 1102 (2d Cir. 1985) ([J]ustifiable
government goals may not be achieved by unduly broad means having an unnecessary impact on
protected rights of speech, press, or association. (quoting Branzburg, 408 U.S. at 680-81); Clark
v. Library of Congress, 750 F.2d 89 (D.C. Cir. 1984) (recognizing First Amendment claim where
the FBI conducted investigation into a library workers political activities and beliefs); In re First
Natl Bank, 701 F.2d 115, 117 (10th Cir. 1983) ([T]he government must demonstrate a
compelling interest, and a substantial relationship between the material sought and legitimate
governmental goals.); Alliance To End Repression v. City of Chicago, 627 F. Supp. 1044 (N.D.
Ill. 1985) (holding that local law enforcement had violated the First Amendment by infiltrating a
political organization and giving false congressional testimony about it); Paton v. La Prade, 469
F. Supp. 773 (D.N.J. 1978) (holding that FBI violated students First Amendment rights when it
investigated her for sending a letter to the Socialist Workers Party as part of a class project); In
re Grand Jury Subpoena to Kramerbooks & Afterwords Inc., 26 Med. L. Rptr. 1599.
40
have emphasized that First Amendment activity is protected not only by substantive
standards but also by procedural safeguards. [A] State is not free to adopt whatever
procedures it pleases . . . without regard to the possible consequences for constitutionally
protected speech. Marcus, 367 U.S. at 73; see also, e.g., City of Lakewood v. Plain
Dealer Publg Co., 486 U.S. 750 (1988); Zurcher, 436 U.S. 547; Roaden v. Kentucky,
413 U.S. 496, 501 (1973); Freedman v. Maryland, 380 U.S. 51, 57-58 (1965); A Quantity
of Copies of Books v. Kansas, 378 U.S. 205, 211-12 (1964) (plurality opinion).
Because only a judicial determination in an adversary proceeding ensures the
necessary sensitivity to freedom of expression, the First Amendment demands that a
judge, not an executive official, decide whether the executive branch may compel the
disclosure of protected speech. Freedman, 380 U.S. at 58; see also FW/PBS, Inc. v. City
of Dallas, 493 U.S. 215, 223-24 (1990) (plurality opinion). In Marcus, the Supreme
Court held that a warrant for seizing allegedly obscene material could not issue on the
mere conclusory allegations of an executive officer. See Marcus, 367 U.S. at 724; see
also Roaden, 413 U.S. at 506. In Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636 (1968)
(per curiam), the Court rejected a warrant for the seizure of a film issued on the basis of a
police officers summary affidavit. If the First Amendment prevents executive officers
from unilaterally seizing allegedly obscene books and films, then it certainly prevents
executive officers from intercepting Americans most private conversations.
The Program does not require the kind of judicial review that the First
Amendment demands; indeed, it does not require judicial review at all. The decision to
intercept electronic communications is vested solely in the hands of an NSA shift
supervisor rather than an Article III judge. The only check against NSA overreaching is
41
the NSA itself. The Programs utter lack of procedural safeguards is an additional basis
on which this Court should declare that the Program violates the First Amendment.
CONCLUSION
For the foregoing reasons, plaintiffs are entitled to judgment as a matter of law
and plaintiffs motion for partial summary judgment should be granted.
s/Ann Beeson_________
ANN BEESON
Attorney of Record
JAMEEL JAFFER
New York, NY 10004-2400
(212) 549-2500
annb@aclu.org
s/Michael J. Steinberg______
KARY L. MOSS
(313) 578-6814
March 9, 2006
42
Case 2:06-cv-10204-ADT-RSW
A LANDMARK Document
CASE OF OBSTRUCTION 14 CIVIL
OF JUSTICE, Filed 04/20/2006
RIGHTS, Page 3 of 24

SOUTHERN DIVISION
____________________________________
)
American Civil Liberties Union, American )
Civil Liberties Union Foundation; ) Case No. 2:06-cv-10204
American Civil Liberties Union of )
Michigan; Council on American-Islamic )
Relations; Counsel on American-Islamic ) Hon. Anna Diggs Taylor
Relations Michigan; Greenpeace, Inc.; )
National Association of Criminal Defense )
Lawyers; James Bamford; Larry Diamond; )
Christopher Hitchens; Tara McKelvey; and )
Barnett R. Rubin, )
)
Plaintiffs, )
v. )
)
National Security Agency/ )
Central Security Service, and Lieutenant )
General Keith B. Alexander, in his )
official capacity as Director of the National )
Security Agency and Chief of the Central )
Security Service, )
)
Defendants. )
____________________________________)
BRIEF ON BEHALF OF AMICI CURIAE BUSINESS LEADERS IN SUPPORT OF

David W. DeBruin Margaret A. Costello

Theresa A. Chmara DYKEMA GOSSETT PLLC
Julie M. Carpenter 400 Renaissance Center
Michael B. DeSanctis Detroit, MI 48243
Wade B. Gentz tel. (313) 568-5306
JENNER & BLOCK LLP fax (313) 568-6893
601 Thirteenth St., N.W., 12th Floor
tel. (202) 639-6000
fax (202) 639-6066
Counsel for Amici Business Leaders
April 20, 2006
A LANDMARK Document
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii

PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT ....................................5
I. THE INTERESTS OF AMICI ...................................................................................................5
II. THE ACTUAL AND PERCEIVED CONFIDENTIALITY OF WIRE AND

ELECTRONIC COMMUNICATIONS IS AN IMPORTANT BUSINESS ASSET
ON WHICH MANY BUSINESSES DEPEND.........................................................................7
III. THE ADMINISTRATIONS WARRANTLESS WIRETAPPING PROGRAM IS

PATENTLY UNLAWFUL. ....................................................................................................15
CONCLUSION..............................................................................................................................20
i
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CASES
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) .....................................................................................15
Home Building & Loan Assn v. Blaisdell, 290 U.S. 398 (1934) .................................................15
Katz v. United States, 389 U.S. 347 (1967).............................................................................14, 16
United States v. United States District Court for the Eastern District of Michigan,
407 U.S. 297 (1972).....................................................................................................11, 14, 15
STATUTES
18 U.S.C. 2511(2)(f) ...................................................................................................................12
18 U.S.C. 2518............................................................................................................................12
50 U.S.C. 1801............................................................................................................................12
50 U.S.C. 1802............................................................................................................................12
50 U.S.C. 1811............................................................................................................................12
Childrens Online Privacy Protection Act, 15 U.S.C. 6501 (Supp. 2000)....................................9
Childrens Online Privacy Protection Act, 15 U.S.C. 6505 (Supp. 2000)....................................9
Disclosure of Nonpublic Personal Information, 15 U.S.C. 6801-6809 (2000)...........................9
Electronic Communications Privacy Act of 1996, 18 U.S.C. 2510 et seq ...................................9
Financial Modernization Act of 1999 (codified as amended in scattered sections

of 12 U.S.C. and 15 U.S.C.).......................................................................................................9
The Foreign Intelligence Surveillance Act 50 U.S.C. 1801, et seq ............................................12
Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. 2510, et
seq. ...........................................................................................................................................12
Congressional Findings in support of Title III, 18 U.S.C. 2510 et seq., Pub. L.

No. 90-351, 801, Stat. 197, 211 (1968) ...................................................................................8
LEGISLATIVE MATERIAL
S. Rep. No. 95-604(I) (1977), reprinted in 1978 U.S.C.C.A.N. 3904 ...........................................12
ii
A LANDMARK Document
152 Cong. Rec. E90-01 (daily ed. Feb. 8, 2006) .............................................................................9
S. 809, Online Privacy Protection Act of 1999: Hearings Before the Subcomm. on
Commcns of the S. Comm. on Commerce, Science & Transp., 106th Cong.
(1999).....................................................................................................................................8, 9
MISCELLANEOUS
2005 Exports of HS Total All Merchandise, U.S. Dept of Commerce, Office of

Trade & Indus. Info., Intl Trade Admin., available at
http://tse.export.gov/MapFrameset.aspx?
apPage=NTDMapDisplay.aspx&UniqueURL=m3z2taqin51zf1mugkdoghe4-
2006-4-5-16-5-59.......................................................................................................................4
Algerian Pilot Threatens to Sue in 9/11 Case, N.Y. Times, Aug. 15, 2002, at A3........................10
Elizabeth B. Bazan, Report for Congress, Order Code RL30465, The Foreign
Intelligence Surveillance Act: An Overview of the Statutory Framework for
Electronic Surveillance (updated Apr. 21, 2005), available at,
http://www.fas.org/sgp/crs/intel/ L30465.pdf..........................................................................13
Paul Blustein, Mideast Investment Up in U.S., Wash. Post, Mar. 7, 2006, at A1...........................6
Peter S. Canellos, In Reach For Middle Ground, Bush Echoes Clinton, Boston
Globe, Feb. 1, 2006, at A18 .......................................................................................................5
Economic Report of the President (Feb. 2006) available online at

http://a257.g.akamaitech.
net/7/257/2422/13feb20061330/www.gpoaccess.gov/eop/2006/2006_erp.pdf.....................4, 5
Sara Kehaulani Goo, Sen. Kennedy Flagged by No-Fly List, Wash. Post, Aug. 20,
2004, at A1...............................................................................................................................10
Sara Kehaulani Goo, Law Lets Passengers Appeal No-Fly List, Wash. Post, Dec.
18, 2004, at A21.......................................................................................................................11
Luke Harding, Rice Admits U.S. mistakes in War on Terror After Wave of
Criticism Across Europe, The Guardian, Dec. 7, 2005, at 24..................................................10
Steven A. Hetcher, Norm Proselytizers Create a Privacy Entitlement In

Cyberspace, 16 Berkeley Tech. L.J. 877 (2001)........................................................................8
Gayle Horn, Online Search and Offline Challenges: The Chilling Effect,
Anonymity, and the New FBI Guidelines, 60 N.Y.U. Ann. Surv. Am. L. 735
(2005).........................................................................................................................................8
iii
A LANDMARK Document
Mark Larabee & Ashbel S. Green, One Mistaken Clue Sets a Spy Saga in Motion,
The Oregonian, Mar. 26, 2006, at A1 ......................................................................................10
Laura Parker, The Ordeal of Chaplain Yee, USA Today, May 17, 2004, at A1 ...........................10
Joe Sharkey, Jumping Through Hoops to Get Off the No-Fly List, N.Y. Times,
Feb. 14, 2006, at C8 .................................................................................................................10
Peter P. Swire, Efficient Confidentiality for Privacy, Security, and Confidential

Business Information, in Brookings-Wharton Papers on Financial Services
294 (Robert E. Litan & Richard Herring eds., 2003).................................................................9
iv
A LANDMARK Document

Amici Roland Algrant, Adam Kanzer, Michael Kieschnick, Joe Sibilia, Peter Strugatz, and Mal
Warwick are international and domestic business leaders who respectfully submit this brief in
support of Plaintiffs motion for partial summary judgment.
I. THE INTERESTS OF AMICI
It is axiomatic that a governments respect for, and adherence to, the rule of law is a necessary
predicate to maintaining a vibrant and stable economy. This is particularly true in the arena of
international business and finance, in which the risks and uncertainties of doing business are
frequently at their zenith. In order for this countrys international and domestic commerce to
continue to thrive, it is imperative that the United States be perceived on the world stage as
rigorously upholding its own laws, particularly with respect to the confidentiality of telephonic
and electronic communications.
With the proliferation of electronic communications, the amount of sensitive personal,
commercial and financial information that businesses exchange on a daily basis has grown
exponentially. Accordingly, over the past decade, it has become a national priority of both
Congress and federal regulators to ensure the privacy and confidentiality of such
communications in order to foster the economic growth that can be achieved only when
consumers and trading partners can have confidence in the security of their confidential
communications. The administrations recently-exposed program of conducting secret electronic
surveillance of communications to and from American citizens in the United States without
probable cause, without a warrant, and without any judicial oversight is patently unlawful and
risks severely undermining that requisite confidence. As such, it threatens to chill the
5
A LANDMARK Document
international communications and the free flow of electronic information on which thousands of
American businesses depend for their lifeblood.
Amicus Roland Algrant is the Senior Vice President of International Sales at HarperCollins
Publishers (HarperCollins) and is the former Chair of the Freedom to Publish Committee of
the American Association of Publishers. HarperCollins is one of the worlds leading English-
language publishers with over $1 billion in annual revenues. It has operations in the United
States, India, the United Kingdom, Canada, Australia and New Zealand, and it works with
authors and agents all over the world. HarperCollins books are sold world-wide in over 60
languages.
Amicus Adam Kanzer is General Counsel & Director of Shareholder Advocacy of Domini
Social Investments LLC (Domini). Domini is an investment adviser registered with the
Securities and Exchange Commission under the Investment Advisers Act of 1940, specializing
exclusively in socially responsible investing. Domini manages over $1.8 billion in assets for
individual and institutional mutual fund investors who integrate social and environmental criteria
into their investment decisions, and is one of the most well-known investment firms dedicated to
socially responsible investing. Its family of mutual funds invests in both domestic and European
securities. As part of the investment program it offers, Domini also engages in regular
communications both in the United States and abroad with a variety of non-governmental
organizations in order to understand and evaluate the social and environmental performance of
companies in its clients portfolios.
Amicus Michael Kieschnick is President, Chief Operating Officer, and a co-founder of Working
Assets Funding Service, Inc. (Working Assets). Working Assets is a telecommunications,
credit card, and media company with over $100 million in annual revenue. International
6
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OF JUSTICE, FiledRIGHTS,
04/20/2006 Page 10 of 24
telephone service is one of the many services that Working Services provides to its customers.
Mr. Kieschnick has written several books on capital markets and development, most recently
Credit Where It's Due (with Julia Parzen), the authoritative study of development banking.
Amicus Joe Sibilia is the President and CEO of Meadowbrook Lane Capital (MBLC). MBLC
is an investment bank, whose principals have over $17 billion worth of transaction experience.
MBLC provides a wide range of investment banking and other financial and strategic services
for its clients, which have included many Fortune 500 companies with global operations. MBLC
also owns a controlling interest in CSRwire, a global news distribution and resource service.
Amicus Peter Strugatz is the President of Strugatz Ventures, Inc., a private equity investment
firm, and is the founder and co-CEO of IceStone LLC, a leading manufacturer of sustainable
home building products.
Amicus Mal Warwick is founder and Chairman of Mal Warwick & Associates, Inc. (MWA).
MWA is a leading provider of fundraising and marketing consulting services for domestic
nonprofit organizations, many of which are international in focus, including the Global Fund for
Women, East Meets West Foundation, and Corporate Accountability International. Mr.
Warwick consults with major nongovernmental organizations all over the world. He is the
author of numerous books on nonprofit fundraising, and regularly presents at major fundraising
conferences on every continent.
II. THE ACTUAL AND PERCEIVED CONFIDENTIALITY OF WIRE AND

ELECTRONIC COMMUNICATIONS IS AN IMPORTANT BUSINESS ASSET
ON WHICH MANY BUSINESSES DEPEND.
7
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04/20/2006 Page 11 of 24
The administration contends that its warrantless surveillance of American citizens in the United
States is, in fact, directed only against terrorists or the enemy.1 At bottom, however, its
position is no different from the administrations arguing that it should be allowed to conduct
warrantless searches of American citizens in any context. The issue is not whether the
administration may search vel non; the issue is whether the administration must obtain a warrant
and satisfy established standards of probable cause or reasonable suspicion. Despite rhetoric to
the contrary, at risk in this case are not simply communications by terrorists or the enemy, but
rather countless communications between American citizens and persons around the world in a
myriad of contexts. Because a substantial percentage of those communications constitute a
critical component of Americans global and domestic business economy, the privacy and
confidentiality of those communications are central to Americas economic interests.
International commerce and finance is a dominant segment of the United States economy. In
2005, the value of imports and exports of goods alone exceeded $2.5 trillion.2 Indeed, in the
years ahead, international trade and finance is likely to be the most critical component of our
nations economy.3 Myriad positive consequences flow from international commerce, including
higher standards of living (domestically and abroad), greater productivity, increased
1 See ACLU Exhibit B, Press Briefing by Attorney General Alberto Gonzales and General
Michael Hayden, Principal Deputy Director for National Intelligence, Dec. 19, 2005 (Attorney
General Gonzales describing the plan as giving them the authority to confront the enemy that
we are at war with -- and that is al Qaeda and those who are supporting or affiliated with Al
Qaeda. )
2 See 2005 Exports of HS Total All Merchandise, U.S. Dept of Commerce, Office of Trade and
Indus. Info., Intl Trade Admin.
3 Economic Report of the President 5 (Feb. 2006) available online at
http://a257.g.akamaitech.net/7/257/2422/13feb20061330/www.gpoaccess.gov/eop/2006/2006_er
p.pdf (Because 95 percent of the worlds customers live outside of our borders, opening
international markets to our goods and services is critical for our economy.).
8
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technological development and the achievement of foreign policy goals. See, e.g., Economic
Report of the President 155 (Feb. 2006) at (Studies show that firms that are engaged in the
international marketplace tend to exhibit higher rates of productivity growth and pay higher
wages and benefits to their workers. An economy with higher overall productivity growth can
support faster GDP growth without generating inflation. And higher productivity growth means
higher sustainable living standards.); Peter S. Canellos, In Reach For Middle Ground, Bush
Echoes Bill Clinton, Boston Globe, Feb. 1, 2006, at A18 (Bushs speech last night represented
his first major attempt to fuse his vision of an activist foreign policy, seeking to topple tyrants
and promote democracy, with an economic program that recognizes the importance of
international trade and leadership.).4
In order to conduct any large scale business international or domestic in the modern global
economy, international telephonic and electronic communications must be secure and, perhaps
more importantly, must be perceived by customers, investors and business partners to be secure.
The actual and perceived security of business communications, including private financial data
and confidential proprietary business information, are valuable assets for American businesses
assets that are jeopardized by the administrations warrantless surveillance program. Indeed,
a lack of confidence in the security of business communications, prompted by the mere threat of
governmental surveillance that is unfettered by any particularized establishment of probable
4 See also Economic Report of the President at 158 (Firms exposed to global competition are
exposed to the worlds best practices in areas such as supply management, production processes,
technology, and finance. Studies show that firms exposed to the worlds best practices
demonstrate higher productivity through many channels, such as learning from these best
practices, and also creating new products and processes in response to this exposure.).
9
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cause, will significantly chill American businesses communications with their international
customers, investors and business partners.5
One industry in constant need of assurances of confidentiality is the world of international
publishing. As always, many of todays best-selling books are about current political events.
Thus, today, many of those best-selling books are about the wars in Iraq and Afghanistan, the
threat of international terrorism, and the administrations efforts to combat that terrorism. And,
of course, many such works are highly critical of either United States policies or of the foreign
regimes at which those policies are aimed.
In order to produce and distribute such works, publishers and their authors must make thousands
of highly confidential telephonic and electronic communications to and from points outside the
United States. Publishers must be in constant communication with their authors, many of whom
might be on location in foreign countries. Likewise, authors in this country must have repeated
communications with confidential sources in foreign countries. These communications often can
be of an extremely sensitive nature and can expose authors and their sources to grave
professional and personal risk. In turn, to distribute these and other controversial works,
publishers must have frequent telephonic and electronic communications with wholesalers,
retailers and others in countries that neither value nor protect the freedoms of speech and thought
that historically have been valued in this country.
5 Experts have reported that direct investment in the United States from the Middle East in
particular has been significantly less extensive than it otherwise should have been because
Middle Eastern investors are . . . skittish about investing in the United States in part because of
a fear about what might befall their holdings at the hands of U.S. authorities. Paul Blustein,
Mideast Investment Up in U.S., Wash. Post, Mar. 7, 2006, at A1.
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In this environment, the revelation of the administrations unfettered secret electronic
surveillance of international communications has raised the very reasonable perception that no
otherwise private communication can be guaranteed to remain confidential. Additionally, the
administrations refusal to comply with the domestic surveillance limits imposed by Congress,
discussed more fully in Section III infra, undermines confidence in the rule of law. Thus, even
where the law prohibits surveillance and even where, unlike the status quo, the administration
abides by those limits, the fact that the United States has a history of secret wiretapping
regardless of the law as written will cause foreign individuals and groups to question whether
they can trust this nation to abide by its own laws. The administrations secret wiretapping
program has chilled, and will continue to chill, the efficient flow of electronic communications
that are critical to many of the publishing industrys transnational ventures.
The fields of international and domestic finance and trade are equally dependent on the ability of
businesses to assure investors, customers and business partners of the privacy and confidentiality
of their communications. In todays world economy, virtually all foreign and domestic
commerce depends on international communications, and virtually all such communications are
conducted via telephonic and electronic means. The competitive marketplace has increasingly
demanded the immediacy that only telephonic and electronic communications can offer. Those
communications, moreover, involve the exchange of unprecedented volumes of highly
confidential personal financial data, individual and institutional investment profiles, and
proprietary trade secrets.
As early as 1968, Congress recognized that uncertainty regarding the confidentiality of such
private communications is bad for business. As it explained, to prevent the obstruction of
interstate commerce, it is necessary for Congress to define on a uniform basis the circumstances
11
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and conditions under which the interception of wire and oral communications may be
authorized. Congressional Findings in support of Title III, 18 U.S.C. 2510 et. seq., Pub. L.
No. 90-351, 801, Stat. 197, 211 (1968) (emphasis added). More recently, as the spread of
electronic personal financial data and other information has proliferated, industry, consumers and
government all have agreed that guaranteeing the privacy of electronic communications is
critical to fostering an environment in which business can flourish.6 In 1999, during the Senate
hearings on the Online Privacy Protection Act, Senator Burns explained that the single greatest
reason consumers do not buy goods online is because of the concerns of privacy. S. 809,
Online Privacy Protection Act of 1999: Hearings before the Subcomm. on Commcns of the S.
Comm. of the S. Comm. on Commerce, Science & Transp., 106th Cong. 2 (1999) (statement of
Sen. Conrad Burns). As another member of the Subcommittee on Communications explained,
there appears to be agreement that the biggest impediment to commerce on the Internet is the
public concern about privacy. Id. at 4 (comments of Sen. Richard H. Bryan).7
6 See, e.g., Gayle Horn, Online Search and Offline Challenges: The Chilling Effect, Anonymity,
and the New FBI Guidelines, 60 N.Y.U. Ann. Surv. Am. L. 735, 748 n.73 (2005) (Knowledge
that the FBI can perform extensive surveillance (even if covert) or a belief that the FBI will
perform extensive surveillance may chill an individual from acting even if he or she is unaware
that he or she is the target of an investigation.); Steven A. Hetcher, Norm Proselytizers Create a
Privacy Entitlement In Cyberspace, 16 Berkeley Tech. L.J. 877, 878-83 (2001) (discussing, inter
alia, the ways in which consumers expect privacy in their communications and punish
businesses that are perceived as not adequately protecting their confidential information).
7 The recent boom in legislation intended to protect the confidentiality of private financial
information in the electronic marketplace include, among others, the Electronic Communications
Privacy Act of 1996, 18 U.S.C. 2510 et seq.; the Financial Modernization Act of 1999 (also
known as the Gramm-Leach-Bliley Act) (1999) (codified as amended in scattered sections of
12 U.S.C. and 15 U.S.C.); Childrens Online Privacy Protection Act, 15 U.S.C. 6501, 6505
(Supp. 2000); Disclosure of Nonpublic Personal Information, 15 U.S.C. 6801-6809 (2000)).
More recently, Congressman Lamar Smith introduced the Law Enforcement and Phone Privacy
Protection Act of 2006 with the following: Few things are more personal and potentially more
revealing than our phone records. The records of whom we choose to call and how long we
12
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Similarly, it has been widely recognized that just as preserving the privacy and the perception of
privacy of personal financial data is a critical business asset in the modern marketplace, so too is
the preservation of the actual and perceived security of confidential business information.
Confidential business information may include security secrets, trade secrets, and positional
information. See generally Peter P. Swire, Efficient Confidentiality for Privacy, Security, and
Confidential Business Information, in Brookings-Wharton Papers on Financial Services 294
(Robert E. Litan & Richard Herring eds., 2003); id. at 288 (explaining that positional information
the kind of information that improves the position of the company in a negotiation or business
setting is less often litigated [than security or trade secret information] but is perhaps more
important in the business world.). Swire has also examined the economic costs and benefits for
businesses to maintain the confidentiality of business information and has concluded that even
perceived threats of possible insecurity ultimately raise costs for businesses and inevitably
produce a chilling effect on business activity. Id. at 289.
It thus is no solace to American business that the administration claims to eavesdrop only on
communications of persons that NSA employees believe to be affiliated with al Qaeda. See
ACLU Exh. B. Simply put, the administration makes mistakes, often with devastating
consequences. In 2004, for example, Brandon Mayfield, a Portland, Oregon attorney, was
mistakenly targeted as a terror suspect in the March 2004 Madrid train bombing. For Mayfield,
the consequences included months of FBI surveillance (including secret forays into Mayfields
home and office) and physical incarceration. See Mark Larabee & Ashbel S. Green, One
Mistaken Clue Sets a Spy Saga in Motion, The Oregonian, Mar. 26, 2006, at A1. Similarly,
speak with them can reveal much about our business and personal lives. . . . It may even disclose
our physical location. 152 Cong. Rec. E90-01 (daily ed. Feb. 8, 2006).
13
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Army Captain James Yee was the subject of intense investigation and prolonged detention
including 76 days in solitary confinement before the administration dropped all terrorism
charges against him. See Laura Parker, The Ordeal of Chaplain Yee, USA Today, May 17,
2004, at A1; see also Luke Harding, Rice Admits U.S. mistakes in War on Terror After Wave of
Criticism Across Europe, The Guardian, Dec. 7, 2005, at 24 (Khalid Masri, a German national,
was mistakenly kidnapped by the CIA in December 2003 and spent five months in a freezing
Afghan jail). These are by no means isolated incidents: it has been estimated that over 30,000
people have been misidentified and erroneously placed on the administrations terrorist watch
list. See Joe Sharkey, Jumping Through Hoops to Get Off the No-Fly List, N.Y. Times, Feb. 14,
2006, at C8.8 And these are the errors of which the victim is made aware. When the
administration makes mistakes in the context of secret surveillance, no one ever knows.
In the name of protecting national security, the administration has cast such a wide net, to say the
least, that trusting them to eavesdrop only on terrorist is not an option. Any responsible
American business has little choice but to take seriously the possibility that the government
could be eavesdropping on its international telephone calls and electronic communications. It is
precisely this fear that stands to chill American business interests, and it was precisely for that
reason that the Supreme Court made clear that [i]t is, or should be, an important working part of
8 See also, e.g., Algerian Pilot Threatens to Sue in 9/11 Case, N.Y. Times, Aug. 15, 2002, at A3
(after being arrested September 21, based on a request from American investigators, Lotfi
Raissi spent five months in British prison on suspicion of training Sept. 11 hijackers before all
charges were dropped); Sara Kehaulani Goo, Sen. Kennedy Flagged by No-Fly List, Wash. Post,
Aug. 20, 2004, at A1 (Senator Edward Kennedy was stopped and questioned at airports on the
East Coast five times in March because his name appeared on the governments secret no-fly
list. Federal air security officials . . . privatelyacknowledged being embarrassed that it took
the senator and his staff more than three weeks to get his name removed.); Sara Kehaulani Goo,
Law Lets Passengers Appeal No-Fly List, Wash. Post, Dec. 18, 2004, at A21 (Rep. John Lewis
(D-Ga.) has been stopped dozens of times because his name is confused with another on the
TSAs secret no-fly list.).
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our machinery of government . . . to check the well-intentioned but mistakenly over-zealous
executive officers who are a party of any system of law enforcement. United States v. United
States Dist. Court for the Dist. of Mich. (Keith), 407 U.S. 297, 315-16 (1972) (internal
quotation marks omitted).
III. THE ADMINISTRATIONS WARRANTLESS WIRETAPPING PROGRAM IS

PATENTLY UNLAWFUL.
As stated at the outset, it is critical to U.S.-based international business interests that the United
States be perceived as honoring and enforcing its own rule of law with respect to government
surveillance of international communications. Indeed, the mere threat of unlawful government
surveillance risks seriously undermining the confidence that consumers and business partners
have in the security of their communications with American businesses. For the reasons set forth
below, and for the reasons set forth in the Memorandum of Law in Support of Plaintiffs Motion
for Partial Summary Judgment, it is abundantly clear that the administrations warrantless
wiretapping program is patently contrary to the rule of law in this country.
The applicable rule of law in this country is straightforward. The Foreign Intelligence
Surveillance Act (FISA), 50 U.S.C. 1801, et seq. and Title III of the Omnibus Crime Control
and Safe Streets Act (Title III), 18 U.S.C. 2510, et seq. together provide the exclusive
means by which electronic surveillance . . . may be conducted. 18 U.S.C. 2511(2)(f). FISA
was enacted specifically to curb perceived abuses by the executive in conducting surveillance in
the name of national security and made clear that the executive cannot engage in electronic
surveillance within the United States without a prior judicial warrant. S. Rep. No. 95-604(I), at
6 (1978), reprinted in 1978 U.S.C.C.A.N. 3904, 3908. FISA thus provides detailed procedures
that require the Executive to obtain a warrant from a specialized court when conducting foreign
15
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intelligence surveillance,9 including, expressly, surveillance of groups and individuals engaged
in international terrorism.10
Here, the administration has publicly conceded that the challenged wiretapping program does not
comply with FISAs warrant requirement.11 See ACLU Exhibit G (quoting Attorney General
Alberto Gonzales, explaining the differences between the NSA program and FISA). Rather, the
administration contends that Congress meant to ignore FISAs clear command and authorized the
domestic warrantless wiretaps when it authorized the use of all necessary and appropriate force
against the perpetrators of the September 11 attacks. See ACLU Exh. B (citing the
Authorization for Use of Military Force against al Qaeda (AUMF), Pub. L. No. 107-40, 115
Stat. 224 (2001)). That argument is specious.
Nothing in the phrase necessary and appropriate force can be read as evidencing Congresss
intent to jettison the exclusive means of engaging in foreign intelligence surveillance that
Congress carefully spelled out in FISA. Indeed, virtually contemporaneously with its adoption
of the AUMF, Congress amended FISA so that its warrant and other requirements expressly
would apply to intelligence efforts against al Qaeda and suspected al Qaeda operatives.12 The
9 See 50 U.S.C. 1802.

10 See 50 U.S.C. 1801.
11 FISA also provides for limited exceptions to its warrant requirement in times of national
emergency, 18 U.S.C. 2518, and in the immediate aftermath of a formal declaration of war, 50
U.S.C. 1811. The administration has likewise conceded that neither of these exceptions
currently apply.
12 See Elizabeth B. Bazan, CRS Report for Congress, Order Code RL30465, The Foreign
Intelligence Surveillance Act: An Overview of the Statutory Framework for Electronic
Surveillance, at CRS-9 n.19 (Updated Apr. 21, 2005) available at
http://www.fas.org/sgp/crs/intel/RL3046.pdf (Foreign intelligence information is defined in 50
U.S.C. 1801(e) to mean (1) information that relates to, and if concerning a United States person
is necessary to, the ability of the United States to protect against (A) actual or potential attack
or other grave hostile acts of a foreign power or an agent of a foreign power; (B) sabotage or
international terrorism by a foreign power or an agent of a foreign power; (C) clandestine
16
A LANDMARK Document
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administration, moreover, has publicly admitted that it did not seek authorization for warrantless
wiretaps because it believed that Congress would have denied such authorization. 13
Nor can the phrase necessary and appropriate force reasonably be interpreted to suggest
Congresss intent to circumvent over three decades of the Supreme Courts Fourth Amendment
jurisprudence. In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court made clear that
individuals possess a protected reasonable expectation of privacy in their telephonic and
electronic communications. Id. at 351-52. Five years later, the Court extended that proposition
and held that warrantless surveillance of telephonic and electronic communications was
unconstitutional, even where the Executive claimed that such surveillance was in the interest of
domestic national security. Keith, 407 U.S. at 313-14. There, the Court explained that
[n]ational security cases . . . often reflect a convergence of First

and Fourth Amendment values . . . . Fourth Amendment
protections become the more necessary when the targets of official
surveillance may be those suspected of unorthodoxy in their
political beliefs. The danger to political dissent is acute where the
Government attempts to act under so vague a concept as the power
to protect domestic security.
Id. The Court thus concluded that

Fourth Amendment freedoms cannot properly be guaranteed if
domestic security surveillances may be conducted solely within the
discretion of the Executive Branch. The Fourth Amendment does
not contemplate the executive officers of Government as neutral
and disinterested magistrates. . . . The historical judgment, which
the Fourth Amendment accepts, is that unreviewed executive
discretion may yield too readily to pressures to obtain
intelligence activities by an intelligence service or network of a foreign power or by an agent of a

foreign power; or (2) information with respect to a foreign power or foreign territory that relates
to, and if concerning a United States person is necessary to (A) the national defense or the
security of the United States; or (B) the conduct of the foreign affairs of the United States.)
13 ACLU Exhibit B, Press Briefing by Attorney General Alberto Gonzales and General Michael
Hayden, Principal Deputy Director for National Intelligence, ([w]e were advised [by members
of Congress] that [amending FISA] would be difficult, if not impossible.)
17
A LANDMARK Document
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incriminating evidence and overlook potential invasions of privacy

and protected speech. . . . [T]his Court has never sustained a search
upon the sole ground that officers reasonably expected to find
evidence . . . and voluntarily confined their activities to the least
intrusive means . . . . The Fourth Amendment contemplates a prior
judicial judgment, not the risk that executive discretion may be
reasonably exercised.
Id. at 316-17 (internal quotation marks and footnote omitted). Together with FISA, these
bedrock principles of Fourth Amendment law must inform and limit this Courts interpretation of
the scope of the appropriate force that Congress authorized in the AUMF. And against such a
backdrop, the administrations reliance on the AUMF must be rejected.
Finally, it is equally unavailing for the administration to invoke its inherent foreign affairs
authority under Article II of the United States Constitution. Once again, the rule of law in this
country is clear: a state of war is not a blank check for the President when it comes to the rights
of the Nations citizens. Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion). As
the United States Supreme Court has long recognized, emergency does not increase granted
power or remove or diminish the restrictions imposed upon power granted or reserved. . . .
[E]ven the war power does not remove constitutional limitations safeguarding essential
liberties. Home Building & Loan Assoc. v. Blaisdell, 290 U.S. 398, 425-26 (1934). Rather,
[w]hatever power the United States Constitution recognizes for the Executive in its exchanges
with other nations or with enemy organizations in times of conflict, it most assuredly envisions a
role for all three branches when individual liberties are at stake. Hamdi, 542 U.S. at 536
(plurality opinion).
Here, Congress exercised its role by adopting FISA and expressly subjecting the Executives
foreign intelligence efforts to FISAs specialized warrant requirements. Perhaps more
importantly, under the Constitution, it is the institutional role of the judiciary to impose a
meaningful check as the neutral and detached decisionmaker on executive action that
threatens the constitutional liberty and right of the American people to be free from unreasonable
18
A LANDMARK Document
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searches and seizures. See generally Keith, 407 U.S. at 316 (emphasizing fundamental
importance of requiring that a neutral and detached magistrate issue a warrant on a showing of
probable cause); Hamdi, 542 U.S. at 509. (holding that the governments factual assertions, even
in the context of allegations against citizens held on suspicion of terrorist activity against the
United States, must be subject to review before a neutral decisionmaker) (plurality opinion);
Katz, 389 U.S. at 357 (the Constitution requires that the deliberate, impartial judgment of a
judicial officer be interposed between the citizen and the police) (alteration in original,
internal quotation marks omitted). The Constitution requires the judiciary to perform this
institutionally assigned role. The administrations contention that its foreign affairs powers
nevertheless entitle it to circumvent the judiciary altogether when eavesdropping on the private
communications of American citizens lies wholly outside the established rule of law in this
country and cannot be countenanced.
19
A LANDMARK Document
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CONCLUSION
For the foregoing reasons, this Court should grant the Plaintiffs motion for summary judgment.
s/ Margaret A. Costello
David W. DeBruin (P41868)
Theresa A. Chmara DYKEMA GOSSETT PLLC
Julie M. Carpenter 400 Renaissance Center
Michael B. DeSanctis Detroit, MI 48243
Wade B. Gentz tel. (313) 568-5306
JENNER & BLOCK LLP fax (313) 568-6893
601 Thirteenth Street, N.W. mcostello@dykema.com
Suite 1200 South
tel. (202) 639-6000
fax (202) 639-6066
Counsel for Amici Business Leaders
April 20, 2006
20
A LANDMARK Document
04/20/2006 Page 24 of 24
I hereby certify that on April 20, 2006, I electronically filed the foregoing paper with the
Clerk of the Court using the ECF system which will send notification of such filing to the
following: Jameel Jaffer, Ann Beeson, Michael J. Steinberg, Andrew Tannenbaum and Anthony
J. Coppolino, and I hereby certify that I have mailed by U.S. Postal Service the foregoing paper
to the following non-ECF participant:
Kary L. Moss
ACLU Fund of Michigan
60 W. Hancock
Detroit, MI 48201
s/ Margaret A. Costello______
Dykema Gossett PLLC
400 Renaissance Center
313-568-5306
mcostello@dykema.com
(P41868)
DET01\506872.1
ID\MACO
21
DOCUMENT DIVIDER
Case 2:15-cv-00584-RJS-DBP
A LANDMARK CASE OF OBSTRUCTIONDocument 35CIVIL
RIGHTS, AND Page 1 of 20 PROPERTY
INTELLECTUAL
IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH CENTRAL DIVISION
MARY JOSEPHINE (JOSIE) VALDEZ, et MEMORANDUM DECISION

al., AND ORDER
Plaintiffs,
Case No. 2:15-CV-00584-RJS-DBP
vs.
Judge Robert J. Shelby
Magistrate Judge Dustin B. Pead
Defendants.
Plaintiffs are six individuals who lived or worked in Salt Lake City during the 2002 Salt
Lake Winter Olympic Games. They contend Defendant National Security Agency, acting at the
direction of former President George W. Bush and former Vice President Dick Cheney, illegally
engaged in a sweeping warrantless surveillance program during those Games.1 As part of that
program, Plaintiffs allege the NSA unlawfully intercepted, gathered, and monitored all electronic
communications in and around Salt Lake City and all Olympic venues. Because Plaintiffs
utilized email, text message, and telephone communications in these areas during the
surveillance program, they contend their communications and data were necessarily intercepted.2
Plaintiffs allege the NSA continues to store all of the electronic data it collected.
The NSA now moves3 to dismiss Plaintiffs Amended Complaint,4 arguing Plaintiffs
have not pled facts sufficient to establish standing to proceed with their claims. More
1
In their Amended Complaint, Plaintiffs bring constitutional, common law, and statutory claims against the NSA
and several individuals, including former President Bush and former Vice President Cheney. Dkt. 26.
2
Id. 1722.
3
Dkt. 17, Motion to Dismiss.
4
Dkt. 26. When filed, Defendants Motion to Dismiss was drawn to Plaintiffs initial Complaint (Dkt. 1).
Magistrate Judge Dustin Pead, to whom this case is referred pursuant to 28 U.S.C. 636 (b)(1)(A) for the
determination of nondispositive pretrial matters, permitted Plaintiffs to file an Amended Complaint, but stated in his
order that the Motion to Dismiss would be treated as a timely response to the Amended Complaint. (Dkt. 27 at 2.)
INTELLECTUAL
specifically, the NSA submits Plaintiffs have not alleged facts plausibly showing they have
suffered an injury redressable through the relief sought in this lawsuit. While not stated in so
many words, the NSAs central argument is that the Plaintiffs allegations are fanciful and not
worthy of belief.
The NSAs Motion turns on a disagreement between the parties about the legal standard
trial courts must employ when reviewing allegations in pleadings at the motion to dismiss stage.
Motions to dismiss like the one here presented require trial courts to evaluate whether a party
asserting a claim has adequately pled facts plausibly suggesting an entitlement to relief. Courts
perform this analysis in two steps. First, courts must review the complaint and identify any
allegations not entitled to the general presumption of truthsuch as legal conclusions or bare
assertions of the elements of a claim. Second, courts consider whether the remaining allegations,
accepted as true at this stage, are sufficient to plausibly support the claims asserted.
The parties here disagree about what kinds of allegations in pleadings trial courts must
assume to be true when undertaking the first step in this analysis. Plaintiffs argue the court may
not pass on the plausibility of factual allegations, but must accept those allegations as true. The
NSA argues the court cannot assume the truth of factual allegations that appear implausible. The
NSA contends that the allegations in the Amended Complaint supporting Plaintiffs Article III
standing are bare assertions, lack factual support, and are implausible. The NSA argues that, as
such, the court may not accept them as true, and that without these allegations Plaintiffs
Amended Complaint fails to sufficiently plead standing.
But it is generally not the role of trial courts at the motion to dismiss stage to pass on the
plausibility of otherwise well-pled factual allegations in pleadings. Trial judges ordinarily may
not independently perform some undefined truth-testing functionin reliance on unstated
INTELLECTUAL
assumptions, beliefs, and understandings unique to each judgeto determine what claims may
proceed to discovery. While judges are trained to carefully assess the plausibility of legal claims
in view of the facts alleged, they are not well-positioned to evaluate only on the basis of
pleadings the likelihood that those facts can ultimately be proven true.
The instant case illustrates this point. The court is simply in no position to evaluate at
this stage of the proceeding whether the NSA engaged in the massive warrantless surveillance
program Plaintiffs allege, whether any such program was even technologically feasible at the
time, or whether any of the named Defendants played a role in such a program. If the NSA
engaged in the conduct alleged, it is presently unknown whether the Plaintiffs communications
were intercepted or whether the NSA still possesses any of Plaintiffs data. But these are the
allegations pled in Plaintiffs Amended Complaint. They can be tested in time, on the basis of a
fully-developed record, after an opportunity for both sides to conduct discovery. At that point,
any claims lacking evidentiary support can be put to rest.
Because the Amended Complaint includes adequate and sufficiently well-pled factual
allegations to plausibly establish that Plaintiffs have suffered redressable injury, the court
DENIES NSAs Motion to Dismiss.5
BACKGROUND ON THE ALLEGATIONS IN THE AMENDED COMPLAINT
Plaintiffs allege in their Amended Complaint6 that the NSA and other Defendants
violated their constitutional and statutory rights by monitoring their communications and
gathering data during the 2002 Winter Olympic Games, and by continuing to store the data.
Plaintiffs seek both declaratory and injunctive relief for the alleged violations.
First, Plaintiffs ask the court to declare that the NSA violated their rights under the Fourth
5
Dkt. 17.
6
Dkt. 26.
INTELLECTUAL
Amendment7 and the Foreign Intelligence Surveillance Act (FISA).8 Second, under the First and
Fourth Amendments, the Stored Communication Act, the Privacy Act, the Administrative
Procedure Act, and FISA,9 Plaintiffs ask the court to enjoin the NSA from continuing to store
the communications of Plaintiffs and from making such communications accessible in the
future.10 Finally, Plaintiffs ask the court to require Defendant NSA to disclose what has been
stored, subject to future access, and provide assurances that the above-described communications
by Plaintiffs have been deleted and permanently removed from any records and data stored by
Defendant NSA, rendering them inaccessible for future access.11
In response to the NSAs Motion to Dismiss,12 Plaintiffs argue they have sufficiently pled
a redressable injury to support their claims for relief. First, Plaintiffs claim they adequately
allege they were injured because the NSA unlawfully collected their personal communications
during the 2002 Winter Olympics without a warrant. Plaintiffs do not allege that their specific
communications were targeted by the NSA, only that they were swept up in the NSAs extremely
broad surveillance program. Second, Plaintiffs argue they sufficiently allege their injury is
redressable because the NSA continues to store their information.
The parties dispute centers on whether these allegations are entitled to a presumption of
truth at this stage of the case. Therefore, the court recites the relevant allegations directly from
the Amended Complaint.
Allegations in the Amended Complaint Relevant to Injury:
3. Pursuant to authority provided by Bush in October 2001 and later orders,

the NSA and employees and agents of the NSA illegally monitored the
7
Id. 50.
8
Id. 128.
9
Id. 51, 65, 104, 112, 120, 129.
10
Id. 51.
11
Id.
12
Dkt. 17.
INTELLECTUAL
international telephone calls and international e-mail messages of people inside

the United States without warrants. Since October 2001, Bush had authorized and
ordered the NSA, in a program known as the Presidents Surveillance Program,
(and sometimes simply as the Presidents Program), pursuant to which
information gathered during the course of illegal surveillance was maintained in a
security compartment codenamed STELLARWIND, to engage in
widespread, warrantless, unconstitutional, felonious surveillance of email, text,
internet, and telephone communications in the United States.
4. Then-Vice-President Cheney and his legal counsel Addington were

instrumental in authorizing and encouraging the illegal and unconstitutional
surveillance, with Addington drafting a secret written authorization for NSA
Director Hayden to keep in his safe.
5. Later, that surveillance evolved, in part, into blanket, indiscriminate,

warrantless, unconstitutional and otherwise illegal surveillance of the contents of
every email and text message, and the metadata of every telephone call (i.e., the
times, length, and numbers involved in every telephone call), to and from every
person engaging in those types of communications in Salt Lake City, Utah, and in
the vicinity of every other Olympic venue, during the 2002 Salt Lake Winter
Olympic Games.
...
9. As part of the Presidents Surveillance Program, as it evolved to even

broader criminality, the NSA . . . planned and implemented a mass warrantless
surveillance program . . . in which blanket surveillance was attempted and
achieved during a period preceding the commencement of the 2002 Salt Lake
Olympic Games and throughout the period of the games, from at least February 8,
2002 (Opening Ceremony) through at least February 24 (Closing Ceremony),
over everyone utilizing email, text message, and telephone communications
within designated geographical areas, including Salt Lake City, Utah, and the
areas including and in the vicinity of all Olympic venues.
10. That unprecedented surveillance, some of which was first disclosed in a

brief description in The Wall Street Journal on August 20, 2013 (entitled New
Details Show Broader NSA Surveillance Reach, by Siobhan Gorman and
Jennifer Valentino-Devries), included the unconstitutional and otherwise illegal
interception and key-word spotting analysis of the contents of every text message
and email sent and received and information reflecting the time and length of, the
telephone numbers involved in, every telephone conversation involving any
person within the areas subjected to blanket surveillance.
...
INTELLECTUAL
23. During the 2002 Salt Lake Winter Olympic Games, Plaintiffs utilized the
services of one or more telecommunications service providers through which the
NSA and Does 1-50, engaged in illegal and unconstitutional surveillance of
information that included length, times, and telephone numbers involved in each
telephonic communication. Plaintiffs also subscribed to telecommunication
services that allowed the sending of emails and, on a regular basis, sent and
received emails while they were in Salt Lake City and near other Olympic venues,
all of which were subjected by the NSA and FBI, and some of Does 1-50, to . . .
surveillance, interception, and key-word spotting analysis.
...
26. Defendant Hayden was Director of the NSA from 1999 to 2005. Hayden
requested and urged that the NSA be permitted to engage in widespread
warrantless surveillance of electronic communications, including text messages,
emails, and telephone communications. Hayden sought and received written
authorization to engage in the clearly illegal and unconstitutional surveillance and
caused the NSA to engage in such surveillance, including the massive,
indiscriminate, warrantless surveillance of the contents of text messages, emails,
and telephone calls originating or received in Salt Lake City and in the vicinity of
other Olympic venues during the 2002 Salt Lake Winter Olympic Games.13
Allegations in the Amended Complaint Relevant to Redressability:
12. Consistent with the practice and philosophy of the NSA to horde [sic]
everything obtained through surveillance, whether legal or illegal, the
communications illegally and unconstitutionally subjected to surveillance,
interception, and key-word spotting analysis are presently unlawfully stored by
the NSA, subject to unlawful access at any time in the future. That illegal storage
is consistent with the unlawful storage of massive metadata of telephone calls
illegally obtained by the NSA, as recounted recently in American Civil Liberties
Union v. Clapper, 785 F.3d 787 (2d Cir. 2015) (The records sought . . . are
relevant, in the governments view, because there might at some future point be a
need or desire to search them in connection with a hypothetical future inquiry.).
...
44. Defendant NSA has participated or directly engaged in the storage of the
communications illegally subject to surveillance as described herein in connection
with the 2002 Salt Lake Winter Olympic Games and continues to store those
communications, which may be accessed, reviewed, and utilized at any time in
the future, and is thereby irreparably harming Plaintiffs.
...
13
Plaintiffs reiterate these claims at several points in their Amended Complaint. See Dkt. 26 42, 46, 60, 96, 99,
109, 119, 123, 124, 125.
INTELLECTUAL
48. By the acts alleged herein, Defendant NSAs conduct proximately caused,
and continues to cause, significant harm to Plaintiffs, including . . . continuing
anxiety and immensely disturbing uncertainty about what information has been
stored and how it will or might be used at any future time.14
ANALYSIS
The NSA moves under Rule 12(b)(1), Federal Rules of Civil Procedure, to dismiss
Plaintiffs Amended Complaint on the basis that Plaintiffs fail to allege facts sufficient to
establish Article III standing to pursue their claims. The NSA argues Plaintiffs have not
plausibly alleged that their communications were subject to NSA surveillance andeven
assuming Plaintiffs have alleged their communications were collectedthey have failed to
plausibly allege the NSA still retains them.15 Below, the court first identifies the legal standards
that govern its analysis, then takes up the NSAs arguments in turn.
I. Legal Standards
Article III of the Constitution limits the judicial power of the United States to the
resolution of cases or controversies.16 As the parties invoking the courts jurisdiction,
Plaintiffs have the burden of establishing their standing.17 To establish standing under Article
IIIs case or controversy requirement, Plaintiffs must make three showings: first, that they have
14
Plaintiffs re-assert that the NSA continues to store this information in several paragraphs contained in their claims
for relief. See, e.g., Dkt. 26 60, 61, 63, 98, 99, 109, 110, 119, 126, 127.
15
As the parties acknowledge, the filing of the Amended Complaint significantly narrows the issues initially
presented in the Motion to Dismiss. See Dkt. 28 at 56; Dkt. 32 at 13. The NSA and FBI jointly filed a Motion to
Dismiss for Lack of Subject Matter Jurisdiction. Dkt. 17. Before Plaintiffs responded they filed an Amended
Complaint. Dkt. 26. Notwithstanding that the Motion to Dismiss was drawn to the original Complaint, the parties
agreed to complete briefing on that Motion. Though procedurally unusual, Plaintiffs Opposition, dkt. 28, and the
NSAs Reply, dkt. 32, both address the Amended Complaint. In the Amended Complaint, the FBI is no longer
named as a defendant. While the Amended Complaint contains claims against the FBI, see Dkt. 26 at 24, 33 (listing
the FBI under Count V and VIII), Plaintiffs have stated that the FBIs inclusion was inadvertent and that they are no
longer pursuing these claims. Dkt. 28 at 14 n.5. Therefore, the court grants the Governments motion as it pertains
to the FBI and dismisses the FBI from this lawsuit. Plaintiffs also dropped the class action allegations, the monetary
damages claims against the NSA, and the claims against the Government under the Wiretap Act.
16
See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982).
17
Dias v. City & Cty. of Denver, 567 F.3d 1169, 1176 (10th Cir. 2009).
INTELLECTUAL
suffered an injury in fact which is concrete and particularized, and actual or imminent; second,
that there is a causal connection between the injury and the challenged conduct; and third, that
the injury is likely to be redressed by a favorable decision.18
The Supreme Court has noted that its standing inquiry has been especially rigorous
when reaching the merits of the dispute would force [the Court] to decide whether an action
taken by one of the other two branches of the Federal Government was unconstitutional.19 And
the Court observed that it has often found a lack of standing in cases in which the Judiciary has
been requested to review actions of the political branches in the fields of intelligence gathering
and foreign affairs.20
At the motion to dismiss stage, Plaintiffs must establish their standing and the courts
jurisdiction under the pleading standards found in Rule 8(a)(1), Federal Rules of Civil
Procedure.21 Rule 8(a)(1) requires only that a complaint contain a short and plain statement of
the grounds for the courts jurisdiction. The Tenth Circuit instructs that at the outset of a case
it is enough to allege the facts . . . establishing standing and that [g]eneral allegations suffice at
the pleading stage.22 If the allegations supporting standing are challenged, then the facts have
to be litigated.23
The NSAs Rule 12(b)(1) Motion to Dismiss is a facial challenge focused exclusively on
the sufficiency of the allegations in Plaintiffs Amended Complaint, without reference to
18
Id.
19
Clapper v. Amnesty Intl USA, 133 S. Ct. 1138, 1147 (2013) (internal quotation marks omitted).
20
Id.
21
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) ([E]ach element [of standing] must be supported in
the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree
of evidence required at the successive stages of litigation.).
22
Predator Intl, Inc. v. Gamo Outdoor USA, Inc., 793 F.3d 1177, 1184 (10th Cir. 2015).
23
Id.
INTELLECTUAL
declarations, affidavits, or other evidence. 24 To survive such a motion, the Amended Complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.25 The Supreme Court in Ashcroft v. Iqbal26 articulated a two-step analysis courts
must apply when evaluating a motion to dismiss challenging the adequacy of a complaint.27
First, the court must identify[] the allegations in the complaint that are not entitled to the
assumption of truth.28 And second, the court considers whether the remaining allegations,
which the court assumes are true, plausibly suggest an entitlement to relief.29
The NSAs argument focuses on the first Iqbal step, and requires the court to determine
what kinds of allegations in pleadings are not entitled to an assumption of truth at the motion to
dismiss stage. The court here turns to the Supreme Court for guidance.
The Supreme Court instructs that trial courts generally must accept as true all the
allegations contained in a complaint . . . .30 To benefit from the general assumption of truth, the
allegations must be well-pleaded31 and amount to more than legal conclusions32 or bare
assertions33 that are a formulaic recitation of the elements of a . . . claim.34 When well-
24
Rule 12(b)(1) motions to dismiss may take two forms, facial and factual. United States v. Rodriguez-Aguirre, 264
F.3d 1195, 1203 (10th Cir. 2001) (citing Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995)). In a facial
challenge, the movant questions the sufficiency of the complaint itself, while in a factual challenge the movant may
go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction
depends. Id. (internal quotation marks omitted). If the challenge is facial, the court generally accepts the
allegations in the complaint as true. In contrast, when addressing a factual challenge the court does not presume
the truthfulness of the complaints factual allegations, but has wide discretion to allow affidavits, other documents,
and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). Id. (internal quotation
marks omitted).
25
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
26
556 U.S. 662 (2009).
27
Although the Court in Iqbal was analyzing a defendants 12(b)(6) motion, the Tenth Circuit has held that the same
standards apply to a 12(b)(1) motion. See, e.g., Muscogee (Creek) Nation v. Okla. Tax Commn, 611 F.3d 1222,
1227 n.1 (10th Cir. 2010) ([W]e apply the same standards [to a facial challenge] under 12(b)(1) that are applicable
to a Rule 12(b)(6) motion to dismiss for failure to state a cause of action.).
28
Iqbal, 556 U.S. at 680.
29
Id.
30
Id. at 678.
31
Id. at 679.
32
Id. at 678.
33
Id. at 681.
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01/10/17
ANDPage 10 of 20 PROPERTY
INTELLECTUAL
pleaded factual allegations are within these bounds, this court is told to assume their veracity
and proceed to the next step of the Iqbal two-step analysisdetermin[ing] whether they
plausibly give rise to an entitlement to relief.35 This is so even if it strikes a savvy judge that
actual proof of those facts is improbable36 or the allegations are doubtful in fact.37 Indeed, the
Court has emphasized in finding untenable bald allegations that it was not reject[ing] these . .
. allegations on the ground that they are unrealistic or nonsensical.38 It was their conclusory
nature . . . rather than their extravagantly fanciful nature[] that disentitle[d] them to the
presumption of truth.39 Still, in a dissenting opinion in Iqbal, Justice Souter suggested the
compellingly logical point that courts need not accept as true allegations that are sufficiently
fantastic to defy reality as we know it: claims about little green men, or the plaintiffs recent trip
to Pluto, or experiences in time travel.40
The court extracts a widely accepted governing principle from these binding Supreme
Court pronouncements and Justice Souters persuasive, non-contradictory point. At the pre-
discovery motion to dismiss stage, this court must assume the truth of well-pleaded factual
allegations that are not simply legal conclusions or bare assertions of the elements of a claimso
long as the allegations do not defy reality as we know iteven if, in the courts own judgment,
those facts seem at the outset incredible, unbelievable, or highly unlikely to be true.
The NSA argues the case law compels a different approach. It maintains that trial courts
are instead required under Iqbal to test plausibility twice when evaluating a motion to dismiss.
34
Id. (quoting Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007)).
35
Id. at 679.
36
Twombly, 550 U.S. at 556.
37
Id. at 555 (noting that [f]actual allegations must be enough to raise a right to relief above the speculative level on
the assumption that all the allegations in the complaint are true (even if doubtful in fact). (citations omitted)).
38
Iqbal, 556 U.S. at 681.
39
Id.
40
Id. at 696 (Souter, J., dissenting). While Justice Souter makes this statement in the dissent, he also states that he
does not understand the majority to disagree with this understanding of plausibility under Twombly. Id. at 697.
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As part of the first Iqbal step, the NSA submits trial judges must evaluate the plausibility of the
facts alleged, and disregard those facts the court finds implausible. Then, after excluding those
factual allegations, the court must separately evaluate the plausibility of the legal claims asserted
in view of the surviving allegations. The NSA cites as support for this approach three decisions
from the Tenth Circuit.41 This court reads these cases differently.
While there is some language in these cases from which one could infer that the Tenth
Circuit is assessing the plausibility of the facts alleged,42 the standards the court sets forth43 and
the analysis it employs44 are consistent with this courts interpretation articulated above.
Importantly, when discussing the plausibility standard recently announced in Bell Atlantic
Corporation v. Twombly45before that standard was applied and developed in Iqbalthe Tenth
Circuit clarified that [t]his is not to say that the factual allegations must themselves be plausible;
41
Al-Owhali v. Holder, 687 F.3d 1236 (10th Cir. 2012); Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210 (10th
Cir. 2011); Cohon v. N.M. Dept of Health, 646 F.3d 717 (10th Cir. 2011).
42
See Al-Owhali, 687 F.3d at 1241 ([H]e simply needed to plead some plausible facts supporting his claim . . . .);
Id. at 1242 ([W]e dismissed the claim because the inmate failed to offer plausible allegations showing that the
restrictions were imposed in violation of prison regulations or that the regulations invoked were unconstitutional in
the circumstances.).
43
Al-Owhali, 687 F.3d at 123940 (Under Iqbal, a complaint must contain enough allegations of fact, taken as
true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged. Although we must accept as true all factual allegations asserted in the complaint, dismissal is appropriate
where the well-pleaded facts do not permit the court to infer more than a mere possibility of misconduct.
(citations omitted)); Kan. Penn Gaming, 656 F.3d at 1214 ([I]n ruling on a motion to dismiss, a court should
disregard all conclusory statements of law and consider whether the remaining specific factual allegations, if
assumed to be true, plausibly suggest the defendant is liable.); Cohon, 646 F.3d at 724 (We accept as true all well-
pleaded facts and construe all reasonable allegations in the light most favorable to the plaintiff. . . . Dismissal of a
complaint is appropriate only if, accepting all facts alleged as true, Cohon has not pled enough facts to state a claim
to relief that is plausible on its face. The complaint must set forth more than an unadorned, the-defendant-
unlawfully-harmed-me accusation. Our function is not to weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiffs complaint alone is legally sufficient to state a claim for which relief may be
granted. (citations omitted)).
44
Al-Owhali, 687 F.3d at 1243 (accepting that plaintiffs allegation that he had been restricted from receiving a book
in prison as true but concluding that this was not enough to plausibly state a claim for relief under the First and Fifth
Amendments); Kan. Penn Gaming, 656 F.3d at 1220 (concluding that an allegation in a complaint alleging nuisance
was a merely a formulaic recitation of a legal conclusion and, thus, not accepting it as true); Cohon, 646 F.3d at
727 (concluding that an allegation that a budget allotment was money-based rather than need-based was
conclusory when considering plaintiffs claim that a Medicaid program offered by the state violated Title II of the
ADA, Section 504 of the Rehabilitation Act, as well as plaintiffs substantive and procedural due process rights
under the U.S. and New Mexico Constitutions).
45
550 U.S. 544.
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after all, they are assumed to be true. It is just to say that relief must follow from the facts
alleged.46
Having explained the standards it will apply, the court turns now to the NSAs challenge.
Because the NSAs Motion to Dismiss attacks the sufficiency of Plaintiffs allegations
supporting Article III standing, the courts analysis below focuses on injury and redressability.
First, the court analyzes whether the allegations in the Amended Complaint that establish injury
are entitled to the assumption of truth. Next, the court analyzes whether the allegations in the
Amended Complaint that establish redressability are entitled to the presumption of truth.
II. Plaintiffs Allegations of Injury are Entitled to the Assumption of Truth
To establish standing, Plaintiffs must show they have suffered an injury in fact which is
concrete and particularized, and actual or imminent.47 Plaintiffs argue they were injured
because the NSA illegally conducted warrantless surveillance of their communications.
Plaintiffs assertion that the NSA collected their communications turns on their allegation that
the NSA conducted blanket surveillance of every email, text message, and the metadata from
every telephone call from every person in Salt Lake City and the surrounding Olympic venues
during the 2002 Winter Olympic Games.
The NSA does not argue that warrantless surveillance of Plaintiffs communications is an
insufficient basis to establish injury for standing purposes. Rather, the NSA contends Plaintiffs
allegation that the Government intercepted their communications during the 2002 Winter
Olympics is based on a bare assertion, and the Complaint contains no factual enhancement
to support this assertion. For this reason, the NSA argues, under the plausibility standard of
46
Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).
47
Dias, 567 F.3d at 1176.
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pleading, [these allegations are] not entitled to a presumption of truth.48 The court disagrees.
As discussed above, the first step of the Iqbal analysis requires the court to decide which
allegations in the Amended Complaint are entitled to the generally-applicable assumption of
truth. At this step, it is irrelevant whether the allegations strike the court as simply unbelievable
or unlikely to be supported. Instead, the court must consider whether the allegations are bare
assertions of the elements of a claim, or in this instance, a bare assertion of injury in fact. The
NSA seizes on the bare assertion and conclusory language from Iqbal to argue Plaintiffs
must provide factual support for their allegations before they may be assumed true. But the
NSAs use of these terms divorces them from the context in which they were used by the
Supreme Court. The Iqbal Court used these terms not when discussing support for factual
allegations, but rather when specifically addressing bare recitation of the elements of a claim or
conclusory statements of the same.49
In their Amended Complaint, Plaintiffs describe the Presidents Surveillance Program
and the illegal surveillance that occurred as part of this program:
Later, that surveillance evolved, in part, into blanket, indiscriminate, warrantless,

unconstitutional and otherwise illegal surveillance of the contents of every email
and text message, and the metadata of every telephone call (i.e., the times,
lengths, and numbers involved in every telephone call), to and from every person
engaging in those types of communications in Salt Lake City, Utah, and in the
vicinity of every other Olympic venue, during the 2002 Salt Lake Winter Olympic
Games.50
Plaintiffs allege this surveillance was attempted and achieved during a period preceding the
commencement of the 2002 Salt Lake Olympic Games and throughout the period of the games
48
Dkt. 17 at 2.
49
Iqbal, 556 U.S. at 663 ([T]he tenet that a court must accept a complaints allegations as true is inapplicable to
threadbare recitals of a cause of actions elements, supported by mere conclusory statements.); Id. at 681 (These
bare assertions, much like the pleading of conspiracy in Twombly, amount to nothing more than a formulaic
recitation of the elements of a constitutional discrimination claim . . . .).
50
Dkt. 26 5.
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from at least February 8, 2002 (Opening Ceremony) through at least February 24th (Closing
Ceremony).51
Because these allegations are not legal conclusions and are more than a bare recitation of
the requirements of standing, the court must assume the truth of these allegations at the motion to
dismiss stage. Plaintiffs allege when and where the surveillance occurred, and the type of
communications that were subject to surveillance. Plaintiffs also unequivocally state that every
communication was interceptedincluding their own.
The Supreme Courts analysis in Iqbal supports the conclusion that these allegations are
entitled to the presumption of truth. The allegations the Supreme Court concluded were not
entitled to the presumption of truth in Iqbal were more conclusory and more closely tied to the
legal elements of plaintiffs claims than those before the court here.
In Iqbal, the Court considered allegations in the plaintiffs complaint claiming certain
federal official defendants deprived him of clearly-established constitutional rights when they
arrested and detained him following the September 11, 2001 terrorist attacks. The Court first
considered plaintiffs allegations supporting a claim for unconstitutional discrimination. In so
doing, the Court laid out the elements of plaintiffs discrimination claim, which required him to
show that defendants intended to discriminate against him based solely on account of his race,
religion, or national origin; and that the harsh prison conditions that he was subject to served no
legitimate penological interest. In his complaint, plaintiff alleged that defendants knew of,
condoned, and willfully and maliciously agreed to subject [him] to harsh conditions of
confinement as a matter of policy, solely on account of [his] religion, race and/or national origin
and for no legitimate penological interest.52 The Court concluded these allegations were bare
51
Id. 9.
52
Iqbal, 556 U.S. at 681 (citation omitted).
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assertions that amount[ed] to nothing more than a formulaic recitation of the elements of
plaintiffs constitutional claims.53 The Court, therefore, did not assume these allegations to be
true.
But there were also allegations the Court concluded were entitled to the presumption of
truth. For instance, the complaint included an allegation that [t]he policy of holding post-
September 11th detainees in highly restrictive conditions of confinement until they were cleared
by the FBI was approved by [defendants] in discussions in the weeks after September 11,
2001.54 The Court accepted this allegation as true and went on to conclude that it did not
plausibly establish plaintiffs claim for relief.55
Here, the court considers allegations more like the latter allegation in Iqbal than the
former. While Plaintiffs allegations are extraordinary, they are neither legal conclusions nor
bare recitations of the elements of standing. And the court cannot conclude that on their face
they defy reality.
The NSA also argues the Supreme Courts decision in Clapper v. Amnesty International56
should guide the courts analysis. In that case, plaintiffsattorneys and human rights, labor,
legal, and media organizationschallenged the constitutionality of 702 of the Foreign
Intelligence Surveillance Act (50 U.S.C. 1881a).57 They sought declaratory and injunctive
relief. The government filed a motion for summary judgment challenging plaintiffs standing.
Plaintiffs responded that they could establish injury in fact because there [was] an objectively
reasonable likelihood that their communications [would] be acquired under 1881a at some
53
Id.
54
Id. (internal quotation marks omitted).
55
Id.
56
133 S. Ct. 1138 (2013).
57
Id. at 1145.
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point in the future.58 The Court rejected this argument, concluding plaintiffs had failed to show
their threatened future injury was certainly impending, as required for Article III standing.
The Court found plaintiffs highly speculative fear that the government had monitored their
communications rested on a highly attenuated chain of possibilities.59
Amnesty International does not control the courts analysis in this case for at least two
reasons. First, the Supreme Court in Amnesty International was not engaged in the same
analysis this court now undertakes. In Amnesty International, the Court considered whether
plaintiffs had set forth specific facts supporting their claim of standing sufficient to survive
summary judgment.60 The Court was not engaged in an Iqbal step-one analysis at the motion to
dismiss stage, asking whether the allegations in plaintiffs complaint should be assumed to be
true. Indeed, it appears the Supreme Court accepted all of plaintiffs allegations as true but
found those allegations, accepted as true, still did not establish plaintiffs standing to seek
prospective relief.
Second, the allegations plaintiffs were making in Amnesty International are qualitatively
different than those in this case. In Amnesty International, plaintiffs claimed there was an
objectively reasonable likelihood that their future communications would be intercepted under
1881a. Here, Plaintiffs do not speculate about future harm, but affirmatively state that their
communications were, in fact, unlawfully intercepted.
58
Id. at 1143.
59
Id. at 1148 ([R]espondents argument rests on their highly speculative fear that: (1) the Government will decide
to target the communications of non-U.S. persons with whom they communicate; (2) in doing so, the Government
will choose to invoke its authority under 1881a rather than utilizing another method of surveillance; (3) the Article
III judges who serve on the Foreign Intelligence Surveillance Court will conclude that the Governments proposed
surveillance procedures satisfy 1881as many safeguards and are consistent with the Fourth Amendment; (4) the
Government will succeed in intercepting the communications of respondents contacts; and (5) respondents will be
parties to the particular communications that the Government intercepts.).
60
The Court noted that plaintiffs, at the summary judgment stage, can no longer rest on . . . mere allegations, but
must set forth by affidavit or other evidence specific facts. Id. at 1149 (quoting Lujan, 504 U.S. at 561). And
the Court found that plaintiffs had set forth no specific facts demonstrating that the communications of their foreign
contacts will be targeted. Id.
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While the NSA characterizes Plaintiffs allegations as more speculative than those in
Amnesty International, Plaintiffs allegations are in fact much less speculativePlaintiffs do not
allege it is likely that communications will later be intercepted, but rather that they already were
intercepted. What the NSA likely means is not that the Plaintiffs allegations here are more
speculative, but that they are less believable or less crediblein essence, less plausible. As
discussed above, this is not an argument that the court may entertain at the motion to dismiss
stage.61 The court, therefore, accepts Plaintiffs allegations as true.
While the NSA has not argued that Plaintiffs allegations, if accepted as true, fail to show
an injury in fact, this court is required to consider the issue sua sponte to ensure that there is an
Article III case or controversy.62 At the motion to dismiss stage, the court concludes that
because Plaintiffs allegation that their communications were intercepted must be accepted as
true, Plaintiffs have plausibly alleged an injury that is concrete, particularized, and actual.63
61
See Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (This is not to say that the factual allegations must
themselves be plausible; after all, they are assumed to be true. It is just to say that relief must follow from the facts
alleged.).
62
Rector v. City & Cty. of Denver, 348 F.3d 935, 942 (10th Cir. 2003) (quoting People for the Ethical Treatment of
Animals v. Rasmussen, 298 F.3d 1198, 1202 (10th Cir. 2002)).
63
Regarding Plaintiffs statutory claims, the Supreme Court instructs that a concrete injury required by Art. III
may exist solely by virtue of statues creating legal rights, the invasion of which creates standing. Jewel v. Natl
Sec. Agency, 673 F.3d 902, 908 (9th Cir. 2011) (quoting Lujan v. Defenders of Wildlife 504 U.S. 555, 578 (1992)).
Plaintiffs assert statutory claims under FISA, the Stored Communication Act, the Privacy Act, and the
Administrative Procedure Act. Each of these statutes creates a private right of action for claims of illegal
surveillance. See 50 U.S.C. 1810 (the FISA provides that [a]n aggrieved person . . . who has been subjected to an
electronic surveillance or about whom information obtained by electronic surveillance of such person has been
disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who
committed such violation); 18 U.S.C. 2707 (the SCA allows any person aggrieved by any violation of this
chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind to
bring a civil action against the entity which engaged in the action); 5 U.S.C. 552a(g)(1) (the Privacy Act provides
that whenever an agency . . . fails to comply with any other provision of this section, or any rule promulgated
thereunder, in such a way as to have an adverse effect on an individual, the individual may bring a civil action
against the agency, and the district courts of the United States shall have jurisdiction); and 5 U.S.C. 702 (the APA
states that, [a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is entitled to judicial review thereof). In addition, Plaintiffs allege
an invasion of their First Amendment right of association and their Fourth Amendment right to be free from
unreasonable searches and seizures. Because Plaintiffs claim that their particular communications were intercepted,
Plaintiffs alleged injury is sufficiently concrete and particularized to grant standing. See Jewel, 673 F.3d at 90910.
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III. Plaintiffs Allegations Supporting Redressability are Entitled to the Assumption of

Truth
Having concluded Plaintiffs pled sufficient facts to establish an actual injury, the court
now considers whether they have pled enough to support their claim of redressability. Like
injury in fact, redressability is one of the requirements of Article III standing. Here, Plaintiffs
request injunctive and declaratory relief. To have standing to pursue prospective injunctive
relief, a plaintiff must show a continuing injury.64 Past exposure to illegal conduct does not
in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by
any continuing, present adverse effects.65 It is not enough, therefore, for Plaintiffs to allege
their communications were collected in 2002 in violation of their constitutional and statutory
rights. To seek the injunctive relief they request, Plaintiffs must also sufficiently plead
allegations which, if assumed to be true, plausibly show they suffer a continuing injury.
The NSA argues that Plaintiffs have not met this burden because they have failed to
plausibly allege that the NSA continues to retain [their communications], fourteen years later, for
undefined purposes of future access.66 In their Amended Complaint, Plaintiffs allege:
12. Consistent with the practice and philosophy of the NSA to horde [sic]
everything obtained through surveillance, whether legal or illegal, the
communications illegally and unconstitutionally subjected to surveillance,
interception, and key-word spotting analysis are presently unlawfully stored by
the NSA, subject to unlawful access at any time in the future. That illegal storage
is consistent with the unlawful storage of massive metadata of telephone calls
illegally obtained by the NSA, as recounted recently in American Civil Liberties
Union v. Clapper, 785 F.3d 787 (2d Cir. 2015) (The records sought . . . are
relevant, in the governments view, because there might at some future point be a
need or desire to search them in connection with a hypothetical future inquiry.).
...
44. Defendant NSA has participated or directly engaged in the storage of the
64
Dias, 567 F.3d. at 1176.
65
Id. (quoting OShea v. Littleton, 414 U.S. 488, 49596 (1974)).
66
Dkt. 32 at 7.
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communications illegally subjected to surveillance as described herein in

connection with the 2002 Salt Lake Winter Olympic Games and continues to store
those communications, which may be accessed, reviewed, and utilized at any time
in the future, and is thereby irreparably harming Plaintiffs.67
Like Plaintiffs allegation that the NSA collected every communication of every person
in Salt Lake and the surrounding Olympic venues, Plaintiffs allegation that the NSA has stored a
massive quantity of data, much of which is likely irrelevant, may strike some as incredible. But,
as discussed above, just because one may find Plaintiffs assertions unbelievable does not mean
that the court does not assume them to be true when deciding a motion to dismiss. The court
only sets aside allegations that are legal conclusions, bare assertions of the legal elements of a
claim, or sufficiently fantastic to defy reality as we know it.
Here, as with the allegation of data collection, Plaintiffs have not merely recited the
elements of standing but have affirmatively stated that the NSA is presently storing their
communications. The court, therefore, accepts this allegation as true and concludes that, at the
motion to dismiss stage, Plaintiffs have pled enough to show a continuing injury. As with the
injury in fact element, the NSA has not argued that Plaintiffs allegations, if accepted as true, fail
to show redressability. At this stage, the court concludes that because Plaintiffs allegation that
the NSA continues to store their communications must be accepted as true, Plaintiffs have
plausibly alleged a continuing injury capable of redress.68
67
Dkt. 26 12, 44.
68
See ACLU v. Clapper, 785 F.3d 787, 801 (2d Cir. 2015) ([The government] argues instead that any alleged
injuries here depend on the governments reviewing the information collected, and that appellants have not shown
anything more than a 'speculative prospect that their telephone numbers would ever be used' But the governments
argument misapprehends what is required to establish standing in a case such as this one. Appellants challenge the
telephone metadata program as a whole, alleging injury from the very collection of their telephone metadata.
Whether or not such claims prevail on the merits, appellants surely have standing to allege injury from the
collection, and maintenance in a government database, of records relating to them.).
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CONCLUSION
The NSA essentially asks the court to pass on the plausibility of the allegations in the
Amended Complaint and reject them as too unlikely to be believed. But at this motion to dismiss
stage, the court may not perform such an analysis. Because the allegations in the Plaintiffs
Amended Complaint are not legal conclusions, bare assertions of the elements of standing, or
sufficiently fantastic on their face as to defy reality, the law requires the court to accept them as
true when evaluating the NSAs Motion to Dismiss. Though these allegations will undoubtedly
be tested as this case proceeds, the court concludes at this early stage that the Plaintiffs have in
their Amended Complaint plausibly alleged injury and redressability as required for Article III
standing, and they overcome the NSAs challenge to jurisdiction. The NSAs Motion to Dismiss
is DENIED as to the non-monetary claims against the NSA.69
SO ORDERED this 10th day of January, 2017.
BY THE COURT:
________________________________________
ROBERT J. SHELBY
United States District Judge
69
To the extent Plaintiffs Amended Complaint contains claims against the FBI and monetary claims against the
NSA, the NSAs Motion to Dismiss pertaining to those claims is GRANTED.
20
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Tom Porter - Government Research into ESP & Mind Control http://libriesoterici.com/Tom_Porter_-_Government_Research_into_ES...
Tom Porter - Government Research into ESP & Mind Control
The following is reproduced here with the express permission ofthe author.
Permission is given to reproduce and redistribute, fornon-commercial purposes only, provided this
information and thecopy remain intact and unedited.
The views and opinions expressed below are not necessarily theviews and opinions of VERICOMM,
MindNet, or the editors unlessotherwise noted.
Editor: Mike Coyle <vericomm@c2.org>
Contributing Editors: Walter Bowart
Alex Constantine
Martin Cannon
Assistant Editor: Rick Lawler
Research: Darrell Bross
Editor's Note:
This article is excerpted from the Web page of Deep Black Magic: Government Research into ESP &
Mind Control:URL: <http://ourworld.compuserve.com/homepages/T_Porter>
Government Research into ESP & Mind Control

By Tom Porter
Mar. 1996
HISTORY OF MK-ULTRA: CIA PROGRAM ON MIND CONTROL.
Started during WWII with research on hypnosis forinterrogation, secure courier duties, and reducing
fatigue. Alsoresearch into effects of primitive drugs like barbiturates andcannabis as far as
drug-assisted interrogation goes.
George Estabrooks was the leading proponent of hypnosis as thebe-all and end-all of manipulating
peoples minds. His book,'Hypnotism', published in the early forties, has been decried astoo fantastic
and improbable in terms of describing thecapabilities of hypnosis with certain very suggestible
subjects,but his arguments and examples remain valid to this day.
Start of Cold War and Korean War in particular gave a bigboost to mind control research with the
emergence of 'BrainWashing' as a common term. Supposedly a development of thedastardly
Chi-Coms, the term was actually coined by a magazinewriter later found to be on the CIA payroll as
an agent ofinfluence. Postulating a 'brainwashing gap' The CIA got thego-ahead for research into
countering communist mind controlefforts and developing their own to aid in the espionage wars.
Hypnosis, drugs, and psycho-surgery; separately and combined,were the tools of this quest for the
ultimate truth serum on theone hand, and the capability to create an agent who could nothave his or
her mission tortured out of them, or even be awarethat they were carrying secret information given to
them in analtered state of consciousness. More and more sophisticated drugswere experimented
with, such as LSD, Ketamine, and Psilocybine.Lobotomy and the implantation of electrodes were
considered asmethods for creating a compliant agent. Electro-Convulsive Shock,combined with LSD,
sedation for days at a time, and constantlyreplaying the patient's own voice through helmet-
mountedheadphones was a notorious Canadian researcher's recipe for mindcontrol.
One of the most remarkable cases of mind control involves afamous model of the late 40's and 50's
named Candy Jones. In thebook, "The Control of Candy Jones" the author reviewed hours oftapes
made by Candy Jones and her husband which revealed asystematic program to create and
manipulate alter personalitiesas the foundation for programmed couriers resistant to torture,where the
primary personality would not even be aware of thesecret information being carried. The information
could besummoned forth via a post-hypnotic command or response to apre-programmed cue.
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Research continued into early 70's by CIA's own admissionduring the Church hearings. John Marks,
author of the best studyof CIA mind control experiments, makes the subtle differentiationthat the CIA
congressional witnesses might truthfully say thatall research done by the TSS Directorate had ended,
since theprograms were moved into other areas once operational techniqueshad been developed.
Many of the names mentioned in reference tomind control research turn up in the few references to
supposeddead-end research in ESP.
There have been persistent rumors of Navy research involvingattempts at telepathy from submarines
under water, the Nautilusbeing the most famous of these. Detection of enemy submarines,and
communicating with our own, has continued to be an importantarea of conventional research for the
Navy, so it is no surprisethat researching the use of ESP for these purposes would be ofinterest.
Communicating with a submerged submarine is the onlykind of communications where the very act of
receiving puts thereceiver in danger, since submarines must normally stick anantenna out of the water
for high speed radio traffic, or rely ontrailing a long wire antenna under water relatively near
thesurface to receive very slow speed traffic using ELF radio waves.Newer techniques may involve
the use of blue-green wavelengthlasers, but evidently penetration to any depth is still aproblem.
If you look at telepathy as a problem in the transfer ofinformation in a very noisy environment, then
certain existingsolutions suggest themselves: There have already been experimentsin the
transmission of five distinct symbols via telepathy,namely Zener card symbols. I suggest that there is
already a wayof transmitting information using two symbols only, namely MorseCode. Current ELF or
VLF radio transmission methods forcommunicating with fleet ballistic missile submarines to issuethem
their launch orders involve very low data transfer rates, onthe order of 3 to 30 bits per minute, if I am
not mistaken.Messages are very short, consisting of pre-formulated action ortargeting codes. I
suggest that telepathic 'Zener Morse' is anoperational technique for information transfer under
severesignal to noise conditions. In fact the use of five Zener symbolswould increase data transfer
rates, but at the expense of ahigher error rate due to the problems in discriminating betweenfive and
just two symbols.
CURRENT DEVELOPMENTS AND REPORTS.
Reports of Project SCANNATE in 70's, most likely done bySwann, since his method for RV is very
similar to that reportedlyused in this project; namely providing lat. & long. coords andtelling what is
there. Later changed to assigning random numberfor unique session number and Swann picked up
location anyway.
"The New Age Army:" Over the past 10 - 15 years a number ofmilitary personnel, most in significant
positions in MilitaryIntelligence, have expressed interest in and directed programs orprojects that have
explored paranormal activities andcapabilities. Several government studies on Enhancing
HumanPerformance took place during this time. Most, if not all ofthem, were savaged in the NRC
study on Enhancing HumanPerformance, but recent critiques and rebuttals of this studyhave
indicated severe irregularities in the evaluation proceduresfor papers submitted to the NRC study,
suppression of favorableresults, and a definitely one-sided evaluation panel.
Much modern research in parapsychology tends to support theidea that Enhanced Perception is a
survival-related trait fromour distant past, not the tip of the iceberg as far as newemerging human
powers go. This is supported by the observationthat many psychic episodes center around
catastrophic ortraumatic events. Studies of Siberian and Eskimo shamans alsoshow the development
of ESP or similar shamanic powers due toinjury, exposure to cold, and isolation. Dissociation
withtendencies towards Multiple Personality Disorder also occurs inthese Shamans due to their
ordeals. This is in contrast to theexperiences of most tropical shamans who tend to find theirpowers
through exposure to mind-altering drugs.
The Vietnam war, with its exceedingly stressful combatenvironment of no clear-cut enemies combined
with ambush beingthe normal way of making contact, produced a large body ofindividual reports
stressing enhanced perception and awareness.This showed up as detecting ambushes and
booby-traps before theywere sprung; detecting the presence of enemy soldiers without anyconscious
sign of them; time dilation when bullets could be seenslowly traveling around the battlefield, and even
reports ofsoldiers avoiding those bullets by jumping out of their paths asthey were shot at.
Dr. Ian Wickramasekera of Eastern Virginia Medical School hasstudied the expansion of sensory
input during trauma which wouldlead to time dilation, etc. This gentleman has also studied theeffects
of sensory deprivation on hypnotic susceptibility inyoung women.
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In a recent article in U.S. News & World Report, JohnGittinger, a CIA psychologist associated with a
CIA frontorganization, the Human Ecology Society admitted to knowledge ofexperiments in
developing ESP by giving electric shocks tosubjects when they gave wrong answers.
Recently, a Russian researcher in psychotronics, Dr. IgorSmirnov, has helped to start up a new
Virginia company, calledPsycho-Technologies, I believe. It is supposed to conductresearch on various
kinds of LTL technology, with a concentrationon Soviet-developed psychotronic warfare capabilities
involvingthe use of electromagnetic and sonic waves to influence anddisable individuals or crowds.
Supposedly this ranges from simplyfalling to influencing peoples thoughts via audio or
visualsubliminal messages.
SOME OF THE PLAYERS:
The Monroe Institute, located near Charlottesville, Virginia.Bob Monroe, author of many books on Out
of Body experiences, haslong and close ties with the C.I.A. James Monroe, Bob's father,if I'm not
mistaken, was involved with the Human Ecology Society,a C.I.A. front organization of the late 50's
and 60's. The MonroeInstitute has done research on accelerated learning and foreignlanguage
learning through the use of altered states ofconsciousness for the C.I.A. and other government
organizations.Government interest in the more radical research going on at theinstitute remains only
tantalizing speculation. Officialclassified document storage boxes have been seen at theirmail-order
outlet located in Lovingston, VA.
Albert Stubblebine and John Alexander. Both retired Armyofficers, a General and Colonel
respectively. Both worked at U.S.Army Intelligence & Security Command, or INSCOM, Stubblebine
asits head at one time. Stubblebine has publicly stated that anenlisted man under his command
inadvertently 'mentally fried' anintelligence gathering computer located in Augsberg Germany.
Thiswas Lynn Buchanan, discussed later.
Alexander wrote the rebuttal to the NRC paper on EnhancingHuman Performance. He used this
rebuttal as the basis for a bookhe co-authored called "The Warrior's Edge" which describesvarious
techniques for enhancing performance and perceptionutilizing the power of the mind. Alexander
currently heads upresearch on Less Than Lethal weapons at Los Alamos NationLaboratories.
Jack Houk, Aerospace Engineer, and his Spoon bending parties,done for last 12 - 15 years.
Stubblebine, Alexander, and othershave attended and hosted these parties. While even Houk
admitsthat much of the bending activity that occurs is due tohysterical strength, people getting
excited, etc. there arealways a few really perplexing feats of bending at each party.Curled and twisted
hacksaw blades comes to mind, since thesenormally snap if they are bent.
Ed Dames and PSI-TECH, Military Intelligence alumni ascontract RV'ers. Promises to provide RV
services to corporate andgovernment clients for $5,000 - $8,000 per week. Has supposedlyspotted
Iraqi chemical weapons depots, among others.
S.A.I.C. involvement in 1993 American ParapsychologicalAssociation meeting arrangements, via their
'Cognitive SciencesLaboratory'. Science Applications International Corporation is abig time defense
contractor, has held the largest number ofresearch contracts of any defense contractor. Bobby Ray
Inman ison its board of directors, among others.
Startup of TREAT, Center for Treatment and Research intoExperienced Anomalous Trauma, by Rima
Leibow. Leibow is apsychiatrist who started studying trauma associated with alienabductions, noting
its similarities to PTSD. She has hosted openand closed meetings for the past six years. Leibow is a
closefriend of/ or married to Stubblebine, which certainly raises someinteresting questions. Another
abduction researcher and friend isVictoria Lacas, who happens to be married to Alexander.
One other TREAT hanger-on, and friend of Stubblebine's, isLynn Buchanan. Buchanan offers services
similar to PSI-TECH andhas worked with Ed Dames on a contract basis. He taught a RemoteViewing
workshop at the latest TREAT conference. Also offerscontinued training in RV skills to those whom he
decides to workwith. Veteran of INSCOM, and the famous 'computer frier'mentioned by Stubblebine.
A real mystery man in all of this is C.B. Scott Jones: Ex-NavyIntelligence officer, one time aide to
Senator Claiborne Pell,founder of the Human Potential Foundation; Jones appears to havehis fingers
in every 'weird' pie around. He has been involvedwith several UFO research organizations, dolphin-
humancommunications research, served on the boards of severalscholarly parapsychological
research organizations. Jones strikesmany people as a 'Cardinal Richelieu' figure, manipulating
eventsbehind the scenes, but rarely emerging into the spotlight.
There is literally no conference on parapsychology that hedoes not attend. He has traveled and done
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research with Alexanderand Rima Leibow. He works at keeping very well informed about the'pulse' of
the New Age community and about UFO andparapsychological research in particular. He rarely
writesanything for print, but keeps in contact with many of the playersin the fields. He has presented
papers to many conferences, mostof the examples I have seen are complex, lengthy, and
elaboratepieces of dis-information which leave the listeners more confusedthan when he started. This
is an individual who bears watching.
Deep Black Magic: Government Research into ESP & Mind Control:URL:
<http://ourworld.compuserve.com/homepages/T_Porter>
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The Illegal Arms Trade IraqIran War 1980 1988 (Part 4) | Eyre Inter... https://eyreinternational.wordpress.com/2012/01/15/the-illegal-arms-trade...
Eyre International Bringing You The News No One

Else Wants To Bring You
The Illegal Arms Trade IraqIran War 1980 1988

(Part 4)
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A Lancaster Firm, The Cia And Illegal Arms Deals - philly-archives http://articles.philly.com/1991-09-13/news/25803611_1_isc-international...
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Bobby Ray Inman and South Africa http://richardknight.homestead.com/inman.html
Bobby Ray Inman and South Africa

[Home to richardknight.com] [Back to Arms Embargo Against Apartheid South Africa]
In December 1993 President Clinton nominated Admiral Bobby Ray Inman to be Secretary of Defense.
Inman served in a series of senior intelligence positions including Director of Navel Intelligence
(1974-76), Vice Director of the Defense Intelligence Agency (1976-77), Director of the National Security
Agency (1977-81) and Deputy Director of the Central Intelligence Agency (1981-1982). In the early 1980s
Inman, then a private businessman, was named to the shadow board International Signal and Control.
These boards are required for U.S. defense companies wholly or partly owned by foreigners and are
supposed to guarantee that no U.S. secrets get into foreign hands.
In 1991 James Guerin, founder and chairman of International Signal and Control (ISC), pleaded guilty to
selling arms to apartheid South Africa and agreed to testify against others. Ten American, seven South
Africans and three South African companies were charged in the case. This case was one of the most
significant U.S. violations of the of U.S. export laws and the mandatory U.N. arms embargo.
In April 1992, prior to Guerin's sentencing, Inman, wrote the judge that between 1975 and 1978 Guerin
"voluntarily provided the U.S. government with information obtained during his foreign travels which was
of substantial value, particular that related to the potential proliferation of nuclear weapons." Several
defendants in the ISC case claimed the U.S. government knew of their sales to South Africa and that they
provided information on South Africa's defense, including its nuclear weapons program. Guerin was
sentenced to 15 years in jail. Guerin could have received up to 61 years.
In January 1994 Inman withdrew his nomination for Secretary of Defense. In response to his withdrawal
I wrote this letter that appeared in the New York Times. - Richard Knight
THE NEW YORK TIMES EDITORIALS/LETTERS FRIDAY JANUARY 28, 1994
South Africa Link
To the Editor:
The withdrawal of Bobby Ray Inman's nomination for Secretary of Defense brought to public attention the
case of International Signal and Control, a defense and technology company. James Guerin, the company's
founder, was recently sentenced to jail for illegal arms sales to South Africa, as you report in "Inman Faced
Scrutiny on Jailed Arms Dealer" (news article, Jan. 20).
As one who has followed International Signal and Control for years, I believe there are many unanswered
questions in this case involving our own Government, its intelligence agencies and United States
implementation of the United Nations arms embargo against South Africa.
Ties between International Signal and South Africa go back to the 1970's. In February 1976 the Department
of State granted approval of a contract for the study of maritime command and control systems with Barlow
Comminations of South Africa. In January 1978, because of United States support for the 1977 United
Nations arms embargo resolution, the State Department revoked the contract. Yet it appears International
Signal continued its involvement in this project.
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Bobby Ray Inman and South Africa http://richardknight.homestead.com/inman.html
According to the indictment of Mr. Guerin, International Signal sold South Africa inertial and land
navigation systems and gyroscopes for aircraft, missiles and helicopters. International Signal also made
millions of dollars in other illegal sales to South Africa including military-related technology and land
mines. Did United States intelligence agencies allow International Signal to continue its illegal operations
for intelligence on South Africa's nuclear and other military programs, or to support South Africa's military
for other reasons?
Mr. Inman has acknowledged that as director of Naval Intelligence in the mid-70's, he knew of the first
International Signal contract and was aware of later information supplied by the company on South Africa's
nuclear program. Most likely, these ties had some bearing on Mr. Inman's appointment as a director on the
International Signal shadow board. Such boards protect United States interests and secrets. Did Mr. Inman
ask questions about large contracts going to small companies and countries like South Africa and Panama?
The central question, as with the Iran-contra scandal, is how to establish effective procedures to prevent
United States intelligence agencies, or people working with them, from subverting laws established by
Congress. If directors on shadow boards such as that of International Signal are just "window dressing,"
Congress should tighten the system and make directors accountable.
Congress should also examine the role of intelligence agencies in this case. Company officials say they
continued providing Information to the Central Intelligence Agency into the 80's, while illegal sales occurred.
Mr. Inman says the United States Government never gave Mr. Guerin permission to violate the arms embargo
against Smith Africa. Did the C.I.A. know of these violations of the embargo? If the C.I.A. was aware and
took no steps to stop the illegal said, it was effectively a partner of International Signal in arming apartheid
South Africa.
RICHARD KNIGHT
New York, Jan. 21, 1994
The writer is a research associate for the Africa Fund, a nonprofit human rights organization.
Posted on RichardKnight.com
[Home to richardknight.com] [Back to Arms Embargo Against South Africa]
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Arms Dealer Is Sentenced To 15 Years James H. Guerin Of Lancaster R... http://articles.philly.com/1992-06-11/news/26031050_1_ferranti-internat...
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Clinton's Pentagon nominee has always been singled out and sought after ... http://articles.baltimoresun.com/1993-12-17/news/1993351179_1_inman...
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December 17, 1993 | By Boston Globe
WASHINGTON -- In the early days of the Reagan administration , when few Carter appointees were held in high
esteem, there was one exception: Bobby Ray Inman.
Republicans were competing with each other to hire Mr. Inman, who under President Carter had been head of the
top-secret National Security Agency. Sen. Barry Goldwater was pushing him for director of Central Intelligence; Defense
Secretary Caspar Weinberger asked him to be his assistant secretary for intelligence.
In the end, Mr. Inman reluctantly became deputy director of the CIA after President Reagan gave him what he
described later as "the smoothest job of arm twisting I've ever encountered." A year later, he resigned, hinting subtly at
unhappiness with CIA Director William Casey's gung-ho covert crusades in Nicaragua and elsewhere.
Throughout his career, it seems, Mr. Inman has been singled out and sought after. Leaders of both parties yesterday
hastened to praise him; admirers on all sides of the political spectrum came together momentarily to stress his image of
personal independence, skills and intelligence.
Related Articles
In a fairly typical encomium, Mr. Goldwater said Mr. Inman would make an "outstanding, perfect secretary of defense."
Aspin Out Inman In
December 17, 1993 In choosing Mr. Inman, the White House consciously seems to have looked for a candidate who was strong exactly in
The Inman Affair those areas where Les Aspin was weak.
January 20, 1994
Mr. Aspin was criticized widely for his free-form, rambling communications style. His standing dropped sharply after a
Secretary of Defense? No Way I'm Out of Here long-winded, disjointed briefing to members of Congress on Somalia.
January 23, 1994
Mr. Inman, on the other hand, is described as a superb communicator -- an excellent congressional briefer and an
Clinton set to drop nominee for Pentagon attentive official who never fails to return a senator's phone call.
peacekeeping post
January 10, 1994 Mr. Aspin was faulted as a poor manager. Mr. Inman has a reputation as a hands-on administrator, and has spent the
last decade in the private sector.
Aspin looks at joining panel to study military
January 16, 1994 And while Mr. Aspin was never able to establish a close relationship with the uniformed military, Mr. Inman, who would
be only the second military man to head the Defense Department (Gen. George Marshall was the first, in 1950 and
1951), is the archetypal insider. He was a career officer who spent many years in the Pentagon hierarchy and has spent
Find More Stories About his retirement in the defense industry.
In the private sector, Mr. Inman has been associated with such companies as Science Applications International
Secretary
Corp., one of the Pentagon's top contractors.
Aspin
The one real cloud over Mr. Inman's nomination may turn out to be his relationship with International Signal and Control,
Inman the company whose founder, James Guerin, was convicted in 1992 for a $1 billion fraud and for illegally transferring
military technology to Iraq and South Africa.
George Marshall
Mr. Inman first worked with Guerin on a covert intelligence project in the mid 1970s, according to a former ISC
employee. Later, after leaving government service, Mr. Inman was one of ISC's three proxy directors.
"Inman was intimately involved with ISC during the entire period they were shipping arms to South Africa," said Thomas
L. Flannery, an investigative reporter for the Lancaster (Pa.) Intelligencer Journal, who broke the Guerin story.
A former Guerin associate currently facing indictment in connection with the case said, however, that Mr. Inman may not
have known about ISC's illegal operations.
"He would not have known about it from the company," he said. "He would only have known it if it came back through the
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A NOMINEE'S WITHDRAWAL - Inman Faced Scrutiny On Jailed Arm... http://www.nytimes.com/1994/01/20/us/a-nominee-s-withdrawal-inman-...
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8. . .F. G 2 !8 & 2F & & < < F C JOBS REAL ESTATE AUTOS
POLITICS EDUCATION TEXAS
A NOMINEE'S WITHDRAWAL
By TIM WEINER,
Published: January 20, 1994
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Bobby Ray Inman - Wikipedia, the free encyclopedia https://en.wikipedia.org/wiki/Bobby_Ray_Inman
Bobby Ray Inman

From Wikipedia, the free encyclopedia
Bobby Ray Inman (born April 4, 1931) is a retired United States

admiral who held several influential positions in the U.S. Intelligence Bobby Ray Inman
Community.
Contents
1 Career
2 Nomination for Secretary of Defense
3 International Signal and Control (ISC) Scandal
4 Statements
5 See also
6 References
7 External links
Career
He served as Director of Naval Intelligence from September 1974 to
July 1976, then moved to the Defense Intelligence Agency where he
Inman's official CIA photo, 1983
served as Vice Director until 1977. He next became the Director of the
National Security Agency. Inman held this post until 1981. His last Born April 4, 1931
major position was as the Deputy Director of Central Intelligence, a Rhonesboro, Texas
post he held from February 12, 1981 to June 10, 1982.
Allegiance United States
Inman has been influential in various advisory roles. Notably, he Service/branch United States Navy
chaired a commission on improving security at U.S. foreign Years of service 19511982
installations after the Marine barracks bombing and the April 1983 US
Rank Admiral
Embassy bombing in Beirut, Lebanon. The commission's report has
been influential in setting security design standards for U.S.
Embassies.
After retirement from the Navy, he was Chairman and Chief Executive Officer of the Microelectronics and Computer
Technology Corporation (MCC) in Austin, Texas for four years and Chairman, President and Chief Executive Officer of
Westmark Systems, Inc., a privately owned electronics industry holding company for three years. Admiral Inman also served as
Chairman of the Federal Reserve Bank of Dallas from 1987 through 1990.
Admiral Inmans primary activity since 1990 has been investing in start-up technology companies, where he is a Managing
Director of Gefinor Ventures and Limestone Ventures. He is a member of the Board of Directors of Massey Energy Company
and of several privately held companies. He serves as a Trustee of the American Assembly and the California Institute of
Technology. He is an elected Fellow of the National Academy of Public Administration.
President Clinton nominated him as Secretary of Defense, but he withdrew his nomination (see below).
Inman also was on the board of SAIC.[1]
Since 2001, Inman has held the LBJ Centennial Chair in National Policy at The University of Texas at Austin Lyndon B.
Johnson School of Public Affairs, and in 2005 and again in 2009 was the school's interim dean.[2] Inman graduated from Texas
with a bachelor's in history in 1950.
Inman has also served on the Board of Directors of the Council on Foreign Relations, Dell Computer, SBC Corporation (now
AT&T)[3] and Massey Energy.
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In 2011 he became head of the board of directors of Xe Services, formerly Erik Prince's Blackwater and now known as
Academi.[4] As of 2013, he sits on the Board of Directors of Academi.[5]
Nomination for Secretary of Defense

Inman was announced as President Bill Clinton's choice to succeed Les Aspin as Secretary of Defense on December 16, 1993,
initially receiving broad bipartisan support. He accepted the post at first, but withdrew his nomination during a press conference
on January 18, 1994.[6]
During the press conference, Inman made angry remarks about comments by New York Times columnist William Safire.[7] Safire
wrote paragraphs on Inman's "anti-Israel bias shown", and ended in a four point list of other negative qualifications. In reply,
Inman suggested that Safire had recruited Senator Bob Dole of Kansas to engage in a "vitriolic attack" on Inman, and also
claimed that Dole and Senator Trent Lott were planning to "turn up the heat" on his nomination.
Dole's reaction was to state that "I have no idea what's gotten into Bobby Inman... Admiral Inman's letter doesn't make any sense
to me." Lott appeared even more surprised, saying that "I am floored by [Inman's] bizarre press conference", while an unnamed
White House aide added: "Most of us were glued to the tube, our mouths open in shock."[8]
International Signal and Control (ISC) Scandal

In 1994, after Bobby Ray Inman requested to be withdrawn from consideration as Defense Secretary, his critics speculated that
the decision was motivated by a desire to conceal his links to ISC. Inman was a member of the board of directors of the
company, which was allegedly either negligent or approved illegal exports.[5]
Originally called ESI (Electronic Systems International), the company manufactured sub-assemblies for the AGM-45 Shrike and
RIM-7 Sea Sparrow missiles in 1974, and just after the Vietnam war which was part of a standard arms contract for the US
defense administration (DCAS). The company also had a commercial repair facility of two meter portable amateur ("ham")
radios from a company in New Jersey called Clegg,[2] and manufactured communications helmet radios for firemen, and
electronic outdoor bug zappers.
ISC was involved in two major indiscretions, for which CEO James Guerin received a 15-year prison sentence:
It defrauded and caused the collapse of the British company Ferranti, which acquired it in 1987.[3] It exported classified military
technology to South Africa, which was then forwarded to third countries, notably Iraq.
From 1984 to 1988, ISC sent South Africa more than $30 million in military-related equipment, including telemetry tracking
antennae to collect data from missiles in flight, gyroscopes for guidance systems, and photo-imaging film readers, all of which
would form the "backbone" of a medium-range missile system. Some of this technology was reportedly transferred to Iraq.[7]
Another link to Iraq was the supply of the specifications for the Mk 20 Rockeye II cluster bomb through Chilean defence
company Carlos Cardoen, which was able to build an almost identical weapon that was subsequently used against coalition
forces in the Persian Gulf War of JanuaryFebruary 1991.[8]
Statements
In 2006, Inman criticized the Bush administration's use of warrantless domestic wiretaps, making him one of the highest-ranking
former intelligence officials to criticize the program in public.[9][10]
See also
References
1. James Bamford, The Shadow Factory, Doubleday, 2008, p201
2. Lyndon B. Johnson School of Public Affairs. Biography of Bobby R. Inman (https://www.utexas.edu/lbj/directory/faculty/bobby-
inman), retrieved 2015-06-14.
3. Pletz, John. "Michael Dell's view from the top", (http://www.statesman.com/business/content/business/stories/archive/0502dell.html)
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Austin American-Statesman, 2004 May 2.
4. Former Blackwater Security Firm Gets New Leaders in Image Makeover (http://www.foxnews.com/politics/2011/03/09/blackwater-
security-firm-gets-new-leaders-image-makeover/) By Justin Fishel March 09, 2011, foxnews.com
5. Academi Board of Directors (http://academi.com/pages/about-us/board-of-directors)
6. Bobby Inman Withdrawal Press Conference (http://www.c-spanvideo.org/program/53874-1)
7. http://www.nytimes.com/1993/12/23/opinion/essay-cold-comfort-level.html William Safire column on December 23, 1993
8. Adm. Inman Asks Clinton To Withdraw Nomination - The Tech (http://tech.mit.edu/V113/N66/inman.66w.html)
9. Shachtman, Noah. "Ex-NSA Chief Assails Bush Taps (http://www.wired.com/science/discoveries/news/2006/05/70855)", Wired News,
2006 May 9.
10. "Ex-NSA Head Bobby R. Inman on the National Security Agencys Domestic Surveillance Program: This Activity Was Not
Authorized (http://www.democracynow.org/article.pl?sid=06/05/17/159213)", www.democracynow.org, 2006 May 17.
External links
Biography of Bobby R. Inman (http://www.fas.org/irp/news/1993/931216i.htm)FAS.org
University of Texas Biography (http://www.utexas.edu/lbj/faculty/bobby-inman/)
Government offices
Preceded by Director of the National Security Agency Succeeded by
Lew Allen, Jr. 19771981 Lincoln D. Faurer
Preceded by CIA Deputy Director Succeeded by
Frank Charles Carlucci III 19811982 John N. McMahon
Retrieved from "https://en.wikipedia.org/w/index.php?title=Bobby_Ray_Inman&oldid=666870038"
Categories: 1931 births Living people Directors of the National Security Agency
Deputy Directors of the Central Intelligence Agency People from Upshur County, Texas
People of the Defense Intelligence Agency United States Navy admirals University of Texas at Austin alumni Academi
Directors of the Office of Naval Intelligence
This page was last modified on 14 June 2015, at 07:34.

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site, you agree to the Terms of Use and Privacy Policy. Wikipedia is a registered trademark of the Wikimedia
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Case 5:15-cv-03984-JCJ
A LANDMARK Document
CASE OF OBSTRUCTION 30 Filed
OF JUSTICE, CIVIL03/29/16 Page
RIGHTS, AND 1 of 39
INTELLECTUAL PROPERTY
!! "
Case No. 15-03984 Exhibit re "Timeline of Secret Government Projects"

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Timeline of Secret Government Projects http://www.bibliotecapleyades.net/esp_cointelpro06.htm
A LANDMARK Document
RIGHTS, AND 3 of 39
from MindControlForums Website
!!
This timeline - prepared by a researcher ["JH"] of our Quantum Future School with many linked sources - barely
scratches the surface. It is our hope that readers will do additional research and provide us with more links and
connections to this spider web of Cosmic COINTELPRO that has blanketed the Earth with lies, deception,
confusion, and tricks and traps - the magnets of impending Global Destruction.
A far more extensive timeline could be created by including the information from Freddy Silva's book on Crop
Circles, Richard Dolan's book on UFOs and the National Security State, and the research included in the
Adventures Series. The reader will also want to read "To Be or Not to Be" for more background.
We will continue to work on the project in hopes that by seeing the various threads together, more people will
realize just how it all connects and how totally we have been duped, and how evil the plans of the Controllers
truly are.
-- Laura Knight-Jadczyk & Dr. Arkadiusz Jadczyk
1931
Dr. Cornelius Rhoads - under the auspices of the Rockefeller Institute for Medical Investigations
- infects human subjects with cancer cells. He later goes on to establish the U.S. Army Biological
Warfare facilities in Maryland, Utah, and Panama, and is named to the U.S. Atomic Energy
Commission. While there, he begins a series of radiation exposure experiments on American
soldiers and civilian hospital patients.
1932
The Tuskegee Syphilis Study begins. 200 black men diagnosed with syphilis are never told of their
illness, are denied treatment, and instead are used as human guinea pigs in order to follow the
progression and symptoms of the disease. They all subsequently die from syphilis. Their families
were never told that they could have been treated.
1933
A Humanist Manifesto is published with 34 prominent signatories at the time.

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1934
(A) "A method for Remote Control of Electrical Stimulation of the Nervous System", a
monograph by Drs. E.L. Chaffee and R.U. Light.
(B) Experiments in Distant Influence, a book by Soviet Professor Leonid L. Vasiliev.

He also wrote the article "Critical Evaluation of the Hypnogenic Method" concerning
the work of Dr. I. F. Tomashevsky on experiments in remote control of the brain.
1935
The Pellagra Incident. After millions of individuals die from Pellagra over a span of 2 decades, the
U.S. Public Health Service finally acts to stem the disease. The director of the agency admits it had
known for at least 20 years that Pellagra is caused by a niacin deficiency, but failed to act since
most of the deaths occurred within poverty-stricken black populations.
1940
400 prisoners in Chicago are infected with malaria in order to study the effects of new and
experimental drugs to combat the disease. Nazi doctors later on trial at Nuremberg cite this
American study to defend their own actions during the Holocaust.
1942
Chemical Warfare Services begins mustard gas experiments on approximately 4,000 servicemen.
The experiments continue until 1945 and made use of Seventh Day Adventists who chose to
become human guinea pigs rather than serve on active duty.
1943
In response to Japan's full-scale germ warfare program, the U.S. begins research on biological
weapons at Fort Detrick, MD.
1944
U.S. Navy uses human subjects to test gas masks and clothing. Individuals were locked in a gas
chamber and exposed to mustard gas and lewisite.
1945
(A) After World War II, the Allies discovered the Japanese had been developing a
"death ray" utilizing very short radio waves focused into a high power beam. Tests
were done on animals. The Japanese denied ever testing it on humans. (From the
Strategic Bombing Survey, Imperial War Museum, London. Cited with photocopies in
"Japanese Death Ray", by Peter Lewis, Resonance#11, pp 5-9)
(B) Project Paperclip is initiated. The U.S. State Department, Army intelligence, and
the CIA recruit Nazi scientists and offer them immunity and secret identities in
exchange for work on top-secret government projects in the United States.
(C) "Program F" is implemented by the U.S. Atomic Energy Commission (AEC). This
is the most extensive U.S. study of the health effects of fluoride, which was the key
chemical component in atomic bomb production. One of the most toxic chemicals
known to man, fluoride causes marked adverse effects to the central nervous
system. But much of the information is squelched in the name of "national security"
because of fear that lawsuits would undermine full-scale production of atomic bombs.
1946
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Patients in VA hospitals are used as guinea pigs for medical experiments. In order to allay
suspicions, the order is given to change the word "experiments" to "investigations" or
"observations" whenever reporting a medical study performed in one of the Nation's veteran's
hospitals.
1947
(A) Colonel E.E. Kirkpatrick of the U.S. Atomic Energy Commission issues a secret
document (Document 07075001, January 8, 1947) stating that the agency will begin
administering intravenous doses of radioactive substances to human subjects.
(B) The CIA begins its study of LSD as a potential weapon for use by American
intelligence. Human subjects (both civilian and military) are used with-and-without their
knowledge.
1950
(A) The Department of Defense begins plans to detonate nuclear weapons in desert
areas and monitor downwind residents for medical problems and mortality rates.
(B) In an experiment to determine how susceptible an American city would be to

biological attack, the U.S. Navy sprays a cloud of bacteria from ships over San
Francisco. Monitoring devices are situated throughout the city in order to test the
extent of infection. Many residents become ill with pneumonia-like symptoms.
(C) The French conducted research on infrasonic weapons (from "The Road From
Armageddon", by Peter Lewis, Resonance#13, pp 9-14).
(D) The newly-formed CIA initiated studies in mind-control programs in 1950 with
Project Bluebird (rechristened "Artichoke") in 1951. To establish a ' cover story' for
this research, the CIA funded a propaganda effort designed to convince the World
that the Communist Bloc had devised insidious new methods of re-shaping the human
will. The CIA's own efforts could therefore - if exposed - be explained as an attempt
to "catch up" with Soviet and Chinese work.
The primary promoter of this 'line' was one Edward Hunter, a CIA contract employee operating
undercover as a journalist and - later - a prominent member of the John Birch society.
Hunter offered 'brainwashing' as the explanation for the numerous confessions signed by American
prisoners of war during the Korean War and (generally) UN-recanted upon the prisoners'
repatriation. These confessions alleged that the United States used germ warfare in the Korean
conflict - a claim which the American public of the time found impossible to accept.
Many years later, however, investigative reporters discovered that Japan's germ warfare
specialists (who had wreaked incalculable terror on the conquered Chinese during WWII) had been
mustered into the American national security apparatus. And the knowledge gleaned from Japan's
horrifying germ warfare experiments probably WAS used in Korea just as the ' brainwashed'
soldiers had indicated.
Thus, we now know that the entire brainwashing scare of the 1950s constituted a CIA hoax
perpetrated upon the American public.
CIA deputy director Richard Helms admitted as much when in 1963, he told the Warren
Commission that "Soviet mind-control research consistently lagged years behind American efforts."
1951
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(A) Alfred Hubbard first tries LSD. An OSS officer in WWII, Hubbard first took LSD in
1951 and proceeded to "turn on" several individuals prominent in LSD research
including Dr. Humphrey Osmond, Myron Stolaroff , and Aldous Huxley, earning him
the title of "the Johnny Appleseed of LSD" (Lee, Martin and Schlain, Bruce, Acid
Dreams, Grove Press, 1985, pg 44).
Circa 1951, Hubbard later did undercover work for several agencies including the
FDA and FBI. He reportedly tried (and failed) to "turn on" J. Edgar Hoover. He
introduced LSD to many high-ranking intelligence officers. In the early 1950s, he
refused an offer to join the CIA (Lee and Schlain, pg 52). In all, it is estimated that
Hubbard introduced LSD to over 6,000 individuals. He worked until 1965 at the
International Foundation for Advanced Study (mis-identified here, I think, as the
International Federation for Advanced Studies) (Fahey, Todd Brendan, The Original
Captain Trips", High Times, November 1991).
Fahey describes Hubbard's work at SRI differently, placing him with the Alternative
Futures Project which sought to "turn on" the World's political and business leaders.
He left SRI in 1974 and died on August 31, 1982 (Fahey).
(B) The Department of Defense begins open air tests using disease-producing
bacteria and viruses. Tests last through 1969 and there is concern that people in the
surrounding areas have been exposed.
1952
(A) As a child in 1952, Jack Sarfatti claims to have received phone calls from the
mechanical voice of a conscious computer aboard a spaceship, recruiting him along
with 400 others for some special project. These calls have similarities to the
mechanical voice which talked to Andrijah Puharich via his tape recorder. Sarfatti was
later associated with Puharich. Puharich first contacts "The Nine" - a group of
channeled being via a medium.
(B) During the CIA's MK-ULTRA mind-control program, John Lilly briefed the
intelligence community on his work to map out the brains of animals using implanted
electrodes. He abandoned this line of work because he felt it was unethical.
John Lilly studied the effects of sensory deprivation tanks and also briefed the
intelligence community with his progress. Lilly refused to let any of his work be
classified and ended up leaving the National Institute of Health when he found that he
could not work without the interference of the Government.
(C) Project Moonstruck/CIA:
Electronic implants in brain and teeth

Targeting: Long range
Implanted during surgery or surreptitiously during abduction
Frequency range: HF - ELF transceiver implants
Purpose: Tracking, mind & behavior control, conditioning, programming, covert
operations
Functional Basis: Electronic Stimulation of the Brain ( E.S.B.)
1953
(A) John C. Lilly - when asked by the director of the National Institute of Mental
Health (NIMH) to brief the Central Intelligence Agency (CIA), Federal Bureau of
Investigation (FBI), National Security Agency (NSA), and the various military
intelligence services on his work using electrodes to stimulate directly the pleasure
and pain centers in the brain - refused.
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He said,
"Dr. Antione Redmond - using our techniques in Paris - has

demonstrated that this method of stimulation on the brain can be
applied to the human without help of the neurosurgeon ... This means
that anybody with the proper apparatus can carry this out covertly with
no external signs that electrodes have been used in that person. I feel
that if this technique got into the hands of a secret agency, they would
have total control over a human being and be able to change his beliefs
extremely quickly, leaving little evidence of what they had done."
(from "Mind Control and the American Government", by Martin Cannon in Lobster#23,
pp 2-10. Cannon quotes Lilly from his book The Scientist, Berkeley, Ronin publishers,
1988, also Bantam Books 1981. Research by Peter Lewis.)
[note: After a statement like that of Dr. Lilly's, how long do you think it would take the
agencies, FBI, CIA, NSA, etc. to contact Dr. Redmond in Paris?]
(B) Project MK-ULTRA/ CIA:
Drugs, electronics and electroshock

Targeting: Short range
Frequencies: VHF HF UHF modulated at ELF
Transmission and Reception: Local production
Purpose: Programming behavior, creation of "cyborg" mentalities
Effects: narcoleptic trance, programming by suggestion
Subprojects: Many.
Pseudonym: Project Artichoke
Functional Basis: Electronic Dissolution of Memory, E.D.O.M. (Disinfo???)
When the CIA's mind-control program was transferred from the Office of Security to
the Technical Services Staff (TSS) in 1953, the name changed again to MK-ULTRA.
Later still, in 1962, mind-control research was transferred to the Office of Research
and Development; project cryptonyms remain unrevealed. What was studied?
Everything including hypnosis, conditioning, sensory deprivation, drugs, religious cults,
microwaves, psychosurgery, brain implants, and even ESP. When MK-ULTRA
"leaked" to the public during the great CIA investigations of the 1970s, public
attention focused most heavily on drug experimentation and the work with ESP.
Mystery still shrouds another area of study - the area which seems to have most
interested ORD: psychoelectronics
(C) Martin Cannon, The Controllers: A New Hypothesis of Alien Abduction:
"The MK-ULTRA program was a covert behavior modification program

run by the CIA in the early 1950s with the purpose of finding ways to
make men more suggestible and involving the use of pain, drugs, and
hypnosis on unsuspecting human guinea pigs.
(D) The first person to publicly expose the CIA's use of "pain-drug-hypnosis" was L.
Ron Hubbard, the founder of Scientology who wrote in his 1951 book Science of
Survival that it had become so extensively employed in espionage work that it was
long past the time that people should have become alarmed about it.
"Mr. Hubbard's statement was found to be true in the 1970s when the
CIA's program became public knowledge after the Freedom of
Information Act enabled investigators to document the agency's
inhumane and grotesque experiments on human subjects.
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The ensuing outcry over the use of mind-bending drugs - which

combined with electric shock caused the deaths or maiming of untold
numbers of people - drew comparisons between the CIA and the
infamous Nazi doctors and led to Congressional hearings into the
intelligence agency." - an40286@anon.penet.fi (probably from the
Scientology Guardians Organization).
(E) U.S. military releases clouds of zinc cadmium sulfide gas over Winnipeg, St.
Louis, Minneapolis, Fort Wayne, the Monocacy River Valley in Maryland, and
Leesburg, Virginia. Their intent is to determine how efficiently they could disperse
chemical agents.
(F) Joint Army-Navy-CIA experiments are conducted in which tens-of-thousands of

people in New York and San Francisco are exposed to the airborne germs Serratia
marcescens and Bacillus glogigii.
1955
(A) (circa) Dr Louis West, friends with Aldous Huxley. It was Huxley who suggested
that West combine LSD and hypnosis in his experiments (Lee, Martin, and Schlain,
Bruce, Acid Dreams, Grove Press, 1985, pg 48). West was an Air Force Major,
chairman of the Psychiatry Department of UCLA, director of the Neuro-Psychiatric
Institute, and an expert in hypnosis.
West was a veteran of the CIA's MK-ULTRA mind-control program and worked on
interrogation techniques using hypnosis and LSD. West once killed an elephant by
grossly overestimating a dose of LSD (elsewhere, I have heard that the tranquilizers
required to calm the animal caused its death). West also studied the returning
American POWs from Korea for the effects of brainwashing (Scheflin, Alan and
Opton, Edward Jr., The Mind Manipulators, Paddington Press Ltd, 1978, pg 149-50).
(B) Morris K. Jessup published The Case For the UFO.
(C) The CIA - in an experiment to test its ability to infect human populations with
biological agents - releases a bacteria withdrawn from the Army's biological warfare
arsenal over Tampa Bay, Fl.
(D) Army Chemical Corps continues LSD research, studying its potential use as a
chemical incapacitating agent. More than 1,000 Americans participate in the tests,
which continued until 1958.
1956
U.S. military releases mosquitoes infected with Yellow Fever over Savannah, GA and Avon Park,
FL. Following each test, Army agents posing as public health officials test victims for effects.
1957
It has now been documented that millions of doses of LSD were produced and disseminated under
the aegis of the CIA's Operation MK-ULTRA. LSD became the drug of choice within the agency
itself, and was passed out freely to friends of the family including a substantial number of OSS
veterans.
For instance, it was OSS Research and Analysis Branch veteran Gregory Bateson who "turned on"
the Beat poet Allen Ginsberg to a U.S. Navy LSD experiment in Palo Alto, California. Not only
Ginsberg but also novelist Ken Kesey and the original members of the Grateful Dead rock group
opened the doors of perception courtesy of the Navy.
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The guru of the 'psychedelic revolution' - Timothy Leary - first heard about hallucinogens in 1957
from Life magazine (whose publisher Henry Luce was often given Government acid like many other
opinion shapers), and began his career as a CIA contract employee.
At a 1977 "reunion" of acid pioneers, Leary openly admitted, "everything I am, I owe to the
foresight of the CIA.'' [Michael J. Minnicino, "The New Dark Age, The Frankfurt School, and
'Political Correctness'", Fidelio, v1 #1]
1958
(A) Project Argus

Between August and September 1958, the US Navy exploded 3 fission-type nuclear
bombs 480 km above the South Atlantic Ocean in the part of the lower Van Allen Belt
closest to the Earth's surface. In addition, 2 hydrogen bombs were detonated 160 km
over Johnston Island in the Pacific.
The military called this "the biggest scientific experiment ever undertaken". It was
designed by the U.S. Department of Defense and the U.S. Atomic Energy
Commission, under the code name 'Project Argus'. The purpose appears to be to
assess the impact of high-altitude nuclear explosions on radio transmission and radar
operations because of the electromagnetic pulse (EMP), and to increase
understanding of the geomagnetic field and the behavior of the charged particles in it.
This gigantic experiment created new (inner) magnetic radiation belts encompassing
almost the whole Earth and injected sufficient electrons and other energetic particles
into the ionosphere to cause worldwide effects. The electrons traveled bac- and-forth
along magnetic force lines, causing an artificial "aurora" when striking the atmosphere
near the North Pole.
(B) The U.S. Military planned to create a "telecommunications shield" in the

ionosphere, reported in 13-20 August 1961, Keesings Historisch Archief (K.H.A.).
This shield would be created "in the ionosphere at 3,000 km height by bringing into
orbit 350,000 million copper needles, each 2-4 cm long [total weight 16 kg], forming a
belt 10 km thick and 40 km wide, the needles spaced about 100 m apart." This was
designed to replace the ionosphere "because telecommunications are impaired by
magnetic storms and solar flares."
The U.S. planned to add to the number of copper needles if the experiment proved to
be successful. This plan was strongly opposed by the Intentional Union of
Astronomers.
(C) Project Orion/ USAF:
Drugs, hypnosis, and ESB

Targeting: Short range, in person
Frequencies: ELF Modulation
Transmission and Reception: Radar, microwaves, modulated at ELF
frequencies
Purpose: Top-security personnel debriefing, programming, insure security and
loyalty
Pseudonym: "Dreamland"
[StealthSkater note: Bob Lazar said that he was ordered to take drugs that smelled
like "pine" as part of his clearance to the S4 projects. See
http://www.stealthskater.com/UFO.htm#Lazar]
(D) While Lilly implies that he left the NIH because of unethical government
interference, his Communications Research Institute (founded in the 1958 to study
dolphins) was partially funded by the Air Force, NASA, NIHM, the National Science
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Foundation, and the Navy. He was assisted in this work by Gregory Bateson.
While experimenting with sensory deprivation and LSD and ketamine, Lilly came to
believe that he was in psychic contact with the aliens of what he called the "Earth
Coincidence Control Office". The aliens were guiding events in Lilly's life to lead him
to work with dolphins, which were psychic conduits between aliens and humans. The
aliens are acting for the survival of organic lifeforms against artificial intelligences
called "solid-state lifeforms".
(E) LSD is tested on 95 volunteers at the Army's Chemical Warfare Laboratories for
its effect on intelligence.
1959
Huxley speeches in London on "Latent Human Potential". COINTELPRO is kicked off and the
games begin.
1960
(A) MK-DELTA. CIA:
Fine-tuned electromagnetic subliminal programming

Targeting: Long Range
Frequencies: VHF HF UHF Modulated at ELF
Transmission and Reception: Television antennae, radio antennae, power lines,
mattress spring coils, modulation on 60-Hz wiring.
Purpose: programming behavior and attitudes in general population
Effects: fatigue, mood swings, behavior dysfunction, and social criminality
Pseudonym: "Deep Sleep", R.H.I.C.
(B) Hal Puthoff - according to author Jim Schnabel (and confirmed by Dr. Puthoff) -
served at the NSA in the early 1960s during his tour with the Navy (not the Army as
McRae reported) and later stayed on as a civillian. Joined SRI in 1971 as a specialist
in laser physics. Served as an officer in the Navy from 1960-63 at Ft. Meade.
(C) Headlines read,
"Khrushchev Says Soviets Will Cut Forces a Third; Sees 'Fantastic

Weapon' ". (From article of same title, by Max Frankel, New York
Times, Jan. 15, 1960, p.1 as cited in "Tesla's Electromagnetics and Its
Soviet Weaponization", paper by T.E. Bearden.)
(D) The International Foundation for Advanced Study (IFAS) is established. Founded
by Myron Stolaroff and Paul Kurtz and located in Menlo Park, California. Studied the
effects of LSD and mescaline from 1961 to 1965. (Anderson, Walter Truett, The
Upstart Spring, Addison-Wesley Publishing, 1983) The foundation also offered LSD
therapy for $500 a session. In late 1961, the foundation released The Psychedelic
Experience: A New Concept in Psychotherapy. (Stevens, Jay, Storming Heaven,
Atlantic Monthly Press, 1987, pg 177-9)
Also involved with the IFAS were Alfred Hubbard, Vice President Willis Harman,
Charles Savage, Robert Mogar, James Fadiman, and Ethel Savage; with Hubbard
reportedly supplying the drugs (then legal for research).
(E) The Army Assistant Chief-of-Staff for Intelligence (ACSI) authorizes field testing
of LSD in Europe and the Far East. Testing of the European population is code
named Project "Third Chance"; testing of the Asian population is code named Project
"Derby Hat".
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1962
(A) The Esalen Institute was founded in 1964 by Mike Murphy and Dick Price out of
Murphy's family resort. Murphy and Price had been running seminars at the resort
beginning in 1962 with speakers gathered through an expanding network of contacts,
beginning with Alan Watts, Aldous Huxley, Gregory Bateson, Gerald Heard, and
others. [see Anderson, Walter Truett, The Upstart Spring, Addison-Wesley
Publishing, 1983 for an expansive history of Esalen]
While an engineering professor at Stanford University, Harman led a 1962 conference

on human potentiality at the Esalen Institute called "The Expanding Vision". Harman
went on later to head IONS with Astronaut Edgar Mitchell.
(B) Project Starfish

On July 9, 1962, the US began a further series of experiments with the ionosphere.
From their description:
"one kiloton device at a height of 60 km, and one megaton and one
multi-megaton at several hundred kilometers height" (K.H.A., 29 June
1962). These tests seriously disturbed the lower Van Allen Belt,
substantially altering its shape and intensity.
"In this experiment, the inner Van Allen Belt will be practically destroyed
for a period of time. Particles from the Belt will be transported to the
atmosphere. It is anticipated that the Earth's magnetic field will be
disturbed over long distances for several hours, preventing radio
communication. The explosion in the inner radiation belt will create an
artificial dome of polar light that will be visible from Los Angeles"
(K.H.A. May 11, 1962).
"A Fijian Sailor - present at this nuclear explosion - told me that "the
whole sky was on fire" and he thought it would be the End of the World.
This was the experiment which called forth the strong protest of the
Queen's Astronomer, Sir Martin Ryle in the UK.
"The ionosphere [according to the under-standing at that time] - that

part of the atmosphere between 65 and 80 km and 280-320 km height -
will be disrupted by mechanical forces caused by the pressure wave
following the explosion. At the same time, large quantities of ionizing
radiation will be released, further ionizing the gaseous components of
the atmosphere at this height. This ionization effect is strengthened by
the radiation from the fission products...
"The lower Van Allen Belt, consisting of charged particles that move
along the geomagnetic field lines... will similarly be disrupted. As a
result of the explosion, this field will be locally destroyed while countless
new electrons will be introduced into the lower belt" (K.H.A. 11 May
1962).
"On July 19... NASA announced that as a consequence of the high

altitude nuclear test of July 9, a new radiation belt had been formed,
stretching from a height of about 400 km to 1600 km; it can be seen as
a temporary extension of the lower Van Allen Belt" (K.H.A. August
5,1962).
As explained in the Encyclopedia Britannica:
"... Starfish made a much wider belt [than Project Argus] that extends
from low altitude out past L=3 [i.e. three Earth radiuses or about
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13,000 km above the surface of the Earth]."
(B) Later in 1962, the USSR undertook similar planetary experiments, creating 3 new
radiation belts between 7,000 and 13,000 km above the Earth.
According to the Encyclopedia, the electron fluxes in the lower Van Allen Belt have
changed markedly since the 1962 high-altitude nuclear explosions by the US and
USSR - never returning to their former state.
According to American scientists, it could take many hundreds of years for the Van
Allen Belts to destabilize at their normal levels. (Research done by: Nigel Harle,
Borderland Archives, Cortenbachstraat 32, 6136 C.H. Sittard, Netherlands.)
1963
Hal Puthoff worked for 8 years in the Microwave Laboratory at Stanford University till 1971
1965
(A) "A project in the U.S. called Project Pandora ... was undertaken in which
chimpanzees were exposed to microwave radiation.
The man who was in charge of this project said, "the potential for exerting a degree
of control on human behavior by low level microwave radiation seems to exist" and he
urged that the effects of microwaves be studied for "possible weapons applications".
(From "Electromagnetic Pollution: A Little Known Health Hazard. A new means of
control?" by Kim Besley, Great Britain, p 14. Research from Woody Blue.)
In 1965, Koslov - then a physicist at the Advanced Research Projects Agency

(ARPA) - suggested to Charles Weiss (head of security at the State Department)
that a "a sober and systematic program of research" look into the "Moscow Signal",
which was caused by microwave radiation being beamed into the Moscow American
Embassy.
This program eventually evolved into Project Pandora, America's first research
program into the possible offensive, anti-personnel use of non-ionizing microwave
radiation. (Steneck, Nicholas H., The Microwave Debate, The MIT Press, 1984, pg
94-5)
(B) A "Death Ray" weapon was developed by McFarlane Corporation. Described as

a modulated electron gun X-ray nuclear booster, it could be adapted to
communications, remote control and guidance systems, EM radiation telemetry, and
death ray.
McFarlane claimed NASA stole the patent in 1965. Reported hearings before the
House Subcommittee on Department of Defense Appropriations, chaired by Rep.
George Mahon (Dem. - Texas). (From "Hearing Voices" by Alex Constantine, Hustler,
Jan. 1994, pp 102-104, 113, 120, 134. Research by Harlan Girard.)
(C) The CIA and Department of Defense begin Project MK-SEARCH - a program to
develop a capability to manipulate human behavior through the use of mind-altering
drugs.
(D) Prisoners at the Holmesburg State Prison in Philadelphia are subjected to dioxin -
the highly toxic chemical component of Agent Orange used in Viet Nam. The men are
later studied for development of cancer which indicates that Agent Orange had been
a suspected carcinogen all along.
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1966
(A) CIA initiates Project MK-OFTEN - a program to test the toxicological effects of
certain drugs on humans and animals.
(B) U.S. Army dispenses Bacillus subtilis variant niger throughout the New York City
subway system. More than a million civilians are exposed when Army scientists drop
lightbulbs filled with the bacteria onto ventilation grates.
(C) Cleve Backster is a polygraph specialist who helped develop interrogation

techniques for the CIA. As of 1986, he ran a polygraph instruction school and the
Backster Research Foundaion in San Diego. In February 1966, Backster recorded
what he believes to be emotional reactions in plants with a polygraph machine. Called
the "Backster Effect", the validity of this phenomena is still debated.
1967
CIA and Department of Defense implement Project MK-NAOMI - successor to MK-ULTRA and
designed to maintain, stockpile, and test biological and chemical weapons.
1968
(A) Eldon Byrd Published a paper on the telemetry of brain waves in the
"Proceedings" of the International Telemetering Conference, 1972. Byrd was a
physical scientist at the Naval Surface Weapons Center, White Oaks Laboratory,
Silver Springs, Maryland (1968- unknown, at least 1981) Byrd describes his work
with Naval Surface Weapons as "predicting what war will be like in the future."
(B) Dr. Gordon J. F. MacDonald - science advisor to President Lyndon Johnson -

wrote, "Perturbation of the environment can produce changes in behavioral patterns."
He was referring to low-frequency EM waves in the ionosphere affecting human brain
wave patterns. (From his book, Unless Peace Comes, a Scientific Forecast of New
Weapons, cited in "New World Order ELF Psychotronic Tyranny", a paper by C. B.
Baker.)
(C) SPS: Solar Power Satellite Project

In 1968, the U.S. military proposed Solar Powered Satellites in geostationary orbit
some 40,000 km above the Earth, which would intercept solar radiation using solar
cells on satellites and transmit it via a microwave beam to receiving antennas (called
rectennas) on Earth.
The U.S. Congress mandated the Department of Energy and NASA to prepare an
Environmental Impact Assessment on this project, to be completed by June 1980 and
costing $25 million. This project was designed to construct 60 Solar Powered
Satellites over a 30-year period at a cost between $500 and $800 thousand million
(in 1968 dollars), providing 100 percent of the US energy needs in the year 2025 at a
cost of $3000 per kW.
At that time, the project cost was 2-to-3 times larger than the whole Department of
Energy budget and the projected cost of the electricity was well above the cost of
most conventional energy sources. The rectenna sites on Earth were expected to
take up to 145 square kilometers of land and would preclude habitation by any
humans, animals, or even vegetation.
Each Satellite was to be the size of Manhattan Island. [note: Sounds curiously like the
HAARP array, yes?]
(D) CIA experiments with the possibility of poisoning drinking water by injecting
chemicals into the water supply of the FDA in Washington, DC.
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1969
(A) Charles Tart studied electrical engineering at MIT and received a PhD in
psychology from the University of North Carolina. He taught humanistic and
experimental psychology at the University of California, Davis. Has served as
Instructor in Psychiatry at the University of Virginia Medical School, and as Lecturer in
Psychology at Stanford University.
His work has dealt with parapsychology, sleep and dreaming, hypnosis, and
psychoactive drugs. [Tart, Charles, ed., Altered States of Consciousness, Anchor
Books, 1969, inside cover]
(B) Dr. Robert MacMahan of the Department of Defense requests from Congress
$10 million to develop - within 5-to-10 years - a synthetic biological agent to which no
natural immunity exists.
1970
(A) Zbigniew Brzezinski - President Jimmy Carter's National Security Director - said in
his book Between Two Ages that weather control was a new weapon that would be
the key element of strategy. "Technology will make available to leaders of major
nations a variety of techniques for conducting secret warfare..."
He also wrote that "Accurately-timed, artificially-excited electronic strokes could lead

to a pattern of oscillations that produce relatively high power levels over certain
regions of the Earth ... One could develop a system that would seriously impair the
brain performance of a very large population in selected regions over an extended
period." [Cited in Baker's "ELF Psychotronic Tyranny" paper.]
(B) Funding for the synthetic biological agent is obtained under H.R. 15090. The
project - under the supervision of the CIA - is carried out by the Special Operations
Division at Fort Detrick, the Army's top-secret biological weapons facility. Speculation
is raised that molecular biology techniques are used to produce AIDS-like
retroviruses.
(C) United States intensifies its development of "ethnic weapons" (Military Review,
Nov., 1970), designed to selectively target and eliminate specific ethnic groups who
are susceptible due to genetic differences and variations in DNA.
1971
(A) Hal Puthoff joined SRI in 1971 as a specialist in laser physics.
(B) circa 1972- Hubbard was hired by Willis Harman, (then director of the Educational
Policy Research Center at SRI to be a special investigative agent) earning $100 a
day. Officially he was a security guard although his actual duties included spying on
the drug culture which Hubbard - a political conservative - disdained. He stayed at
SRI until the late 1970s (Lee and Schlain, pg 198-9).
(C) According to Jack Sarfatti, a "very, very sophisticated and successful covert
psychological warfare operation run by the late Brendan O Regan of the Institute of
Noetic Sciences and the late Harold Chipman who was the CIA station chief
responsible for all mind-control research in the Bay Area in the 70s."
1972
(A) Bruce Maccabee: Dr. Maccabee has been a Research Physicist at the Naval
Surface Weapons Center in Silver Spring, Maryland since 1972. His work has
centered on high power lasers, underwater sound, and the Ballistic Missile Defense.
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He holds a Ph.D. in Physics from the American University in Washington, DC. Dr.
Maccabee was a member of the National Investigations Committee on Aerial
Phenomena (i.e., UFOs).
(B) In early 1972, psychic Ingo Swann heard of Hal Puthoff's research proposal
through Cleve Backster. ccording to Swann, Backster maintained his intelligence
connections, and Backster reported that the CIA was interested in his experiments.
Some of Backster's experiments are documented in "PRIMARY PERCEPTION:
Cleve Backster's astounding mind/plant communication discovery!", Australian Lateral
Thinking Newsletter,1996.
(C) Puthoff is head of the SRI remote-viewing program, 1972-85. After he left,
Puthoff was replaced with Ed May, a former Naval Intelligence Officer. (Puthoff,
Harold, "CIA-Initiated Remote Viewing Program at Stanford Research Institute",
Journal of Scientific Exploration, Vol. 10, No. 1, Spring 1996)
(D) The Taser - the first electrical shock device developed for use by law
enforcement - delivers barbed, dart-shaped electrodes to a subject's body and
50,000 volt pulses at 2-millionths of an amp over 12-14 seconds time. (From "Report
on the Attorney General's Conference on Less Than Lethal Weapons", by Sherry
Sweetman, 1987, p 4, which cites "Non-Lethal Weapons for Law Enforcement:
Research Needs and Priorities. A Report to the National Science Foundation by the
Security Planning Corporation, 1972. Research by Harlan Girard.)
(E) "A U.S. Department of Defense document said that the Army has tested a
microwave weapon. It was an extremely powerful 'electronic flamethrower'. " (From
Electromagnetic Pollution)
(F) "A study published by the U.S. Army Mobility Equipment Research and
Development Center, titled 'Analysis of Microwaves for Barrier Warfare' examines the
plausibility of using radio frequency energy in barrier counter-barrier warfare ...
The report concludes that (a) it is possible to field a truck-portable microwave barrier
system that will completely immobilize personnel in the open with present day
technology; (b) there is a strong potential for a microwave system that would be
capable of delaying or immobilizing personnel in vehicles; (c) with present technology,
no method could be identified for a microwave system to destroy the type of armored
material common to tanks." (From Electromagnetic Pollution by Kim Besly, p 15,
quoting The Zapping of America by Paul Brodeur.) The report further documents the
ability to create third-degree burns on human skin using 3 Gigahertz at 20
watts/square-centimeter in 2 seconds.
(G) Dr. Gordon J. F. MacDonald testified before the House Subcommittee on Oceans
and International Environment concerning low-frequency research: "The basic notion
there was to create between the electrically-charged ionosphere in the higher part of
the atmosphere and conducting layers of the surface of the Earth this neutral cavity,
to create waves - electrical waves that would be tuned to the brainwaves ... about 10
cycles per second ... you can produce changes in behavioral patterns or in
responses." [from Baker's "ELF Psychotronic Tyranny" paper.]
1973
(A) Sharp and Grove transmit audible words via microwaves [EW: That is, voice to
SKULL] (See "Synthetic Telepathy" in Resonance ]
(B) "Richard Kennett" is a pseudonym used by author Jim Schnabel in Remote

Viewers (Dell, 1997) to describe a CIA scientist who worked with the remote-viewing
project. In the photo insert is a picture of Kennett, Pat Price, and Harold Puthoff after
a remote-viewing experiment involving a glider.
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Elsewhere (example: Puthoff, Harold, "CIA-Initiated Remote Viewing Program at

Stanford Research Institute", Journal of Scientific Exploration, Vol. 10, No. 1, Spring
1996), the man in the photo on the left is identified as Chistopher Green. As there
can't be too many scientists at the CIA with an interest in the paranormal with this
name, I feel safe in guessing that the two are the same, although I haven't absolutely
confirmed it. At any rate, here is the information on "Richard Kennett", all from
Remote Viewers.
In Spring 1973, he was an analyst with the CIA's Office of Scientific Intelligence with
a Ph.D. in neurophysiology. "Within a decade, Kennett would be the assistant national
intelligence officer for chemical and biological warfare issues". His work concentrated
on evaluating the health of foreign officials, but he also explored the fringes of
medicine and psychology. It was under these circumstances that he challenged Hal
Puthoff's research at SRI, although he was not officially controlling the contract. (pg
104-6)
The initial challenge was to view a secret microwave receiving station. [This
controversial experiment is dealt with at length here. According to Schnabel's
information, this would make Kennett the "East Coast challenger" from Mind Reach].
Kennett - as well as the team at SRI - were reportedly investigated by the Defense
Investigative Service after the viewing. Kennett was also involved with the
experiments with Uri Geller. (pg 139).
Kennett was also called in to look at the scientists at the Lawrence Livermore
National Laboratory who began to see "visions" after experimenting with Geller. (pg
166-9) Kennett left the CIA around 1985. (pg 317)
1974
(A) Monroe Institute. Founded and directed by Robert Monroe from 1974 until his
death in1995. Had classified contracts with the U.S. Army Intelligence & Security
Command (INSCOM) on orders by Gen. Albert Stubblebine. The Institute studied
their hemi-synch techniques to see if they could enhance soldiers' performance and
concentration. (Emerson, Steven, Secret Warriors, G.P. Putnam's Sons, 1988, pg
103-4)
The primary area of research at the Monroe Institute involves using a binaural beat to
cause different psychological effects. A binaural beat is created by using stereo
headphones with each speaker emitting a slightly different frequency. The result is a
tone at the frequency between the two, which allegedly causes the brain to "entrain"
on the frequency (i.e. the brain waves regulate themselves to the same frequency).
The National Research council evaluated the Institute's claims that the method could
be used to improve learning. [National Research Council, Enhancing Human
Performance, National Academy of Sciences, 1988, pg 111-4]
"..located near Charlottesville, Virginia. Bob Monroe - author of many

books on 'Out of Body Experiences' - has long and close ties with the
CIA. James Monroe - Bob's father, if I'm not mistaken - was involved
with the Human Ecology Society - a CIA front organization of the late
50s and 60s.
The Monroe Institute has done research on accelerated learning and

foreign language learning through the use of altered states of
consciousness for the CIA and other government organizations.
Government interest in the more radical research going on at the

Institute remains only tantalizing speculation. Official classified
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document storage boxes have been seen at their mail-order outlet
located in Lovingston, VA." (Porter, Tom, Government Research into
ESP & Mind Control, March, 1996)
The Monroe Institute trained the government viewers from Ft. Meade in Out of Body
Experiences (OBEs). Courtney Brown also went through this training which involves
using the Institute's Hemisync tapes. These tapes - which work by using a binaural
beat to entrain brain waves - caused Brown to feel that he left his body and
communicated with aliens. [Brown, Courtney, Cosmic Voyage, Dutton, 1996]
(B) In 1974, Jack Sarfatti is director of a physics program at the Esalen Institute.
He's been funded by Werner Erhard and Jean Lanier (a friend of Laurance
Rockefeller). (Sarfatti, Jack, "The Parsifal Effect", The Destiny Matrix)
Sarfatti met with Puharich, Uri Geller, and Ira Einhorn at Puharich's Ossining ranch.
Einhorn acted as a literary agent for Sarfatti and brought him to Esalen Physics
/Consciousness research group. This is where it all started back in 1975. PCRG was
co-founded by Jack Sarfatti and Michael Murphy at the Esalen Institute in Big Sur,
California in 1974. Financed by Werner Erhard, Jean Lanier, and the late George
Koopman, the PCRG nurtured the creation of books like Space-Time and Beyond,
The Tao of Physics, The Dancing Wu Li Masters, Cosmic Trigger, and The Roots of
Consciousness.
The group included the physicists and authors Fred Alan Wolf, Nick Herbert, and
Fritjof Capra, along with Saul Paul Sirag, Henry Dakin, Robert Anton Wilson, Uri
Geller, Barbara Honneger, the late Brendan O Regan, George Leonard, Gary Zukav,
Ira Einhorn, and artist Lynn Hershmann. Nobel Laureate Brian Josephson along with
physicists David Finkelstein, Russell Targ, Karl Pribram, Henry Stapp, Phillipe
Eberhard, and Ralph Abraham all came for shorter visits.
The group is now reborn on the World Wide Web 20 years later with both new and
old faces. According to George Koopman, the PCRG was the inspiration for the film
Ghost.
1975
(A) Saturn V Rocket. Due to a malfunction, the Saturn V rocket burned unusually high
in the atmosphere - above 300 km. This burn produced "a large ionospheric hole"
(Mendillo, M. et al., Science, p. 187, 343, 1975). The disturbance reduced the total
electron content more than 60% over an area 1,000 km in radius and lasted for
several hours. It prevented all telecommunications over a large area of the Atlantic
Ocean.
The phenomenon was apparently caused by a reaction between the exhaust gases
and ionospheric oxygen ions. The reaction emitted a 6300 airglow. Between 1975
and 1981, NASA and the U.S. Military began to design ways to test this new
phenomena through deliberate experimentation with the ionosphere.
(B) Bruce Maccabee joined MUFON and was appointed State Director for Maryland
and a Consultant in Photo Analysis and Laser Physics.
(C) In the 1970s, Mike Murphy became interested in Russian parapsychology and
visited the country to meet experimenters in this field. This led to a close connection
between Esalen and some Russian officials, who set up an exchange program.
Lasting into the 1980s, this exchange was dubbed "hot-tub diplomacy". John Mack
was reportedly involved in this exchange.
In the late 1970s, Esalen became involved with an Englishwoman named Jenny
O'Connor, who claimed to be in psychic contact with 'the Nine' (probably the same
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"Nine" that Andriah Puharich claimed to be in contact with). Dick Price and other
members of the Esalen staff became increasingly dependent on 'the Nine' to the point
of listing them as program leaders and members of the Esalen Gestalt Staff in
brochures. (Anderson, pg 302)
(D) The virus section of Fort Detrick's Center for Biological Warfare Research is
renamed the Fredrick Cancer Research Facilities and placed under the supervision of
the National Cancer Institute (NCI). It is here that a special virus cancer program is
initiated by the U.S. Navy, purportedly to develop cancer-causing viruses. It is also
here that retrovirologists isolate a virus to which no immunity exists. It is later named
HTLV (Human T-cell Leukemia Virus).
1975-1977
"Unpublished analyses of microwave bioeffects literature were disseminated to the

U.S. Congress and to other officials arguing the case for remote control of human
behavior by radar." (From the Journal of Microwave Power, 12(4), 1977, p 320.
Research by Harlan Girard.)
1976
(A) Around late-1976 to 1977, Dale Graff - then a physicist with the Air Force's
Foreign Technology Division - gave a small contract to the SRI research team. Graff
wanted to replicate some Soviet psi experiments done in submarines, as well as test
the Soviet hypothesis that psi was transmitted via ELF (Extremely Low Frequency)
electromagnetic waves.
These test were conducted in July, 1977 with the help of Stephan Schwartz, a former
Navy officer and psychic researcher. Schwartz helped procure a submarine for a July
1977 experiment with SRI. These experiments included some on behalf of Dale Graff
of the Air Force. (Schnabel, Jim, Remote Viewers: The Secret History of America's
Psychic Spies, Dell, 1997, pg 207) Research associate with the Cognitive Sciences
Laboratory.
(B) Around 1976, Koslov - as the scientific assistant to the secretary of the Navy -
was being briefed on various contracts the Navy held, including one for SRI. The
section describing the contract at SRI was headed "ELF AND MIND CONTROL"
(ELF stands for Extremely-Low Frequency). Reportedly, Koslov was upset by the
label and cancelled the contract with SRI. "I don't believe it's the function of the
military to support parapsychology." (Wilhelm, John, "Psychic Spying?", Washington
Post 08/07/77, B5)
According to another account, the heading was "Sensing of Remote EM sources

(Physiological Correlates)". According to this account, Koslov thought the project
dealt with mind-control and looked into the contract in more detail. He found that it
dealt with psychic research which upset him as well, and ordered the contract to be
cancelled. (Schnabel, Jim, Remote Viewers, Dell, 1997, pg 206)
Either Wilhelm paraphrased and misinterpreted the section heading on the briefing,
or the story was sanitized somewhere along the line before reaching Schnabel's
book. In either case, the Navy continued to fund psychic research (Wilhelm, 1977)
and has been one of the biggest funders of research related to electronic
mind-control.
1977
(A) Christopher Bird presented a paper on "dowsing" and the psychic ability of
plants at the "Mind Over Matter" conference at Penn State University, late January,\
1977, organized by Ira Einhorn. Other attendees included Andrija Puharich and
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Thomas Bearden (Levy, pg 189).
(B) Soon afterwards, Einhorn and the "Psychic Mafia" focused their attention on ELF
mind-control (Levy, pg 190). He suggests that his murder charge could have been a
set-up by the CIA or KGB for his interest in activities by America and Russia in the
areas of psychic warfare, Tesla technology, and mind-control (Levy, pg 242).
Puharich says that Einhorn's work wasn't important enough to elicit such a reaction
(Levy, pg 308). The likelihood is that Einhorn - like many of the individuals involved in
COINTELPRO - was merely a "useful idiot" who was as manipulated as those he
sought to manipulate.
Einhorn led seminars at the Esalen Institute and was involved with the
Physics/Consciousness Research Group. He reportedly worked with Congressman
Charlie Rose, a large supporter of psychic studies, on classified projects. Senate
hearings on Health and Scientific Research confirm that 239 populated areas had
been contaminated with biological agents between 1949 and 1969. Some of the
areas included San Francisco, Washington, D.C., Key West, Panama City,
Minneapolis, and St. Louis.
1978
(A) Experimental Hepatitis-B vaccine trials conducted by the CDC begin in New York,
Los Angeles, and San Francisco. Ads for research subjects specifically ask for
promiscuous homosexual men.
(B) Hungarians presented a state-of-the-art paper on infrasonic weapons to the

United Nations, "Working Paper on Infrasound Weapons", United Nations CD/575, 14
Aug 1978 (from The Road From Armageddon by Peter Lewis).
(C) SPS Military Implications

Early review of the Solar Powered Satellite project began in around 1978, and I
[Rosalie Bertell] was on the review panel. Although this was proposed as an energy
program, it had significant military implications. One of the most significant - first
pointed out by Michael J. Ozeroff - was the possibility of developing a
satellite-borne beam weapon for anti-ballistic missile (ABM) use.
The satellites were to be in geosynchronous orbits with each providing an excellent

vantage point from which an entire hemisphere can be surveyed continuously. It was
speculated that a high-energy laser beam could function as a thermal weapon to
disable or destroy enemy missiles. There was some discussion of electron weapon
beams through the use of a laser beam to preheat a path for the following electron
beam.
The SPS was also described as a psychological and anti-personnel weapon which
could be directed toward an enemy. If the main microwave beam was redirected
away from its rectenna toward enemy personnel, it could use an infrared radiation
wavelength (invisible) as an anti-personnel weapon. It might also be possible to
transmit high enough energy to ignite combustible materials.
Laser beam power relays could be made from the SPS satellite to other satellites or
platforms - for example, aircraft - for military purposes. One application might be a
laser powered turbofan engine which would receive the laser beam directly in its
combustion chamber, producing the required high temperature gas for its cruising
operation. This would allow unlimited on-station cruise time. As a psychological
weapon, the SPS was capable of causing general panic.
The SPS would be able to transmit power to remote military operations anywhere
needed on Earth. The manned platform of the SPS would provide surveillance and
early warning capability as well as ELF linkage to submarines. It would also provide
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the capability of jamming enemy communications. The potential for jamming and
creating communications is significant. The SPS was also capable of causing physical
changes in the ionosphere.
President Carter approved the SPS project and gave it a go-ahead in spite of the
reservation which many reviewers - myself included - expressed. Fortunately, it was
so expensive - exceeding the entire Department of Energy budget - that funding was
denied by the Congress. I approached the United Nations Committee on
Disarmament on this project.
But I was told that as long as the program was called "solar energy" by the United
States, it could not be considered a "weapons" project. The same project resurfaced
in the US under President Reagan. He moved it to the much larger budget of the
Department of Defense and called it "Star Wars". Since this is more recent history, I
will not discuss the debate which raged over this phase of the plan.
By 1978, it was apparent to the U.S. Military that communications in a nuclear hostile
environment would not be possible using traditional methods of radio and television
technology (Jane's Military Communications 1978).
By 1982, GTE Sylvania (Needham Heights, Massachusetts) had developed a

command&control electronic sub-system for the U.S. Air Force's Ground-Launched
Cruise Missiles (GLCM) that would enable military commanders to monitor and
control the missile prior to launch both in hostile and non-hostile environments. The
system contains 6 radio subsystems, created with visible light using a dark beam (not
visible) and is resistant to the disruptions experienced by radio and television.
Dark beams contribute to the formation of energetic plasma in the atmosphere. This
plasma can become visible as smog or fog. Some has a different charge than the
Sun's energy and accumulates in places where the Sun's energy is absent, like the
polar regions in the Winter. When the polar Spring occurs, the Sun appears and
repels this plasma, contributing to holes in the ozone layer.
This military system is called Ground Wave Emergency Network (GWEN). (See The
SECOMII Communication System, by Wayne Olsen, SAND 78-0391,Sandia
Laboratories, Albuquerque, New Mexico, April 1978.)
This innovative emergency radio system was apparently never implemented in

Europe and exists only in North America.
1979
(A) In February 1979, Alfred Hubbard attended an LSD reunion party hosted by Dr.
Oscar Janiger along with Laura Huxley, Sidney Cohn, John Lilly, Willis Harman, and
Timothy Leary among others (Lee and Schlain, 213).
(B) Around 1979, SRI funded a project of Tart's which screened university students
and faculty for psychic ability. (Schnabel, Jim, Remote Viewers: The Secret History
of America's Psychic Spies, Dell, 1997, pg 225-6)
(C) In an article entitled "The Fund for CIA Research, or Who's Disinforming Who?",
the anonymous authors (the Associated Investigators Group) accuse Bruce
Maccabee of working with the CIA, providing them with information, and letting the
CIA affect his leadership in FUFOR. According to the article, Maccabee's main
contact with the CIA was through Dr. Christopher Green.
In a written response, Maccabee rebuts that most of his contacts with the CIA have
been in the context of his work with the Navy and are unrelated to his UFO research.
He says that he did give CIA employees informal lectures at the request of Ron
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Pandolfi, but that the CIA has never attempted to influence his research.
[A similar rebuttal was written by Aviary guy Dan Smith and Rosemary Ellen Guiley of
Fate Magazine, and New Age Land Central - in later years - after similar accusations
were made.]
"I never contacted any companies. What I did was tell Jack Acuff -
Director of NICAP at the time - that I would like to speak to experts in
the field of radar. He, in turn, put me in contact with a scientist - Dr.
Gordon MacDonald - at the MITRE corporation. I was invited to discuss
the NZ sightings with him and several other scientists at MITRE in
McLean, VA.
And I did (and they generally agreed with my conclusions). Then a

week-or-so later, I learned that MacDonald had contacted a man at the
CIA who contacted me and offered to provide technical consultation if I
would provide a briefing to some CIA employees. At first, I was leery of
doing anything with the CIA. But I knew they had radar experts, so I
stipulated that if they would give me some feedback I'd tell them what I
know.
So I briefed them and I received some helpful comments..." [note:

When you dance with the Devil, the Devil doesn't change - the Devil
changes YOU!]
"After I discussed the NZ case one employee - Dr. Christopher "Kit"

Green (KG) - invited me to visit the CIA again a week-or-so later to
have a general UFO discussion with him and a couple of other
employees... After that last meeting with KG in the spring of 1979, I
didn't see him again and had no contact with the agency until June,
1984 when I was contacted by Dr. Ronald Pandolfi regarding my Navy
work.
He had been tracking developments by the "other side" in that field of

research and wanted to know what the U.S. state-of-the-art was."
(Bruce Maccabee's response to the AIR report)
Formerly with the CIA, Dr. Green's work involved UFO research.
"Dr. Green attained a Ph.D. in Neurophysiology in 1969 and in1976

received his M.D. (Doctor of Medicine) degree. Green was awarded
the CIA's National Intelligence Medal for his work on a 'classified
project' from 1979 to 1983 - precisely the years in which Maccabee
was meeting with him at CIA headquarters.
Green uses somewhat of a cover story to describe his CIA work,

calling himself a 'Scientific Advisor on the Advisory Board to the
Directorate of Intelligence, CIA.'" (The Associated Investigators Group,
"The Fund for CIA Research, or Who's Disinforming Who?")
Esalen also held seminars in quantum physics, and was the birthplace of the
Physics/Consciousness Research Group. Some results of these seminars are
documented in Zukav, Gary, The Dancing Wu Li Masters, Morrow Quill, 1979
1980
(A) By the 1980's, Koslov was working with the Applied Physics Laboratory at Johns
Hopkins University, where he continued to study the effects of electromagnetic
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radiation on humans. He is currently the vice president of the Maryland Microscopical
and Scientific Instrument Society.
(B) Dale Graff had continued to task SRI on behalf of the Air Force for the next few
years. In 1980, he won a fellowship for "exceptional analyst" within the intelligence
community and planned to take 2 years off to conduct research in other laboratories:
SRI, a psychokenesis lab at Princeton, a J.B. Rhine affiliated lab in Durham, NC, and
a Department of Energy lab where microwave weapons were being studied. His
fellowship was revoked by the office of the Air Force Chief of Staff and - with the
encouragement of Jack Vorona - he retired from the Air Force and moved to the DIA,
where he ran the Advanced Concepts Office.
(C) "Michelle Smith" and Lawrence Pazder published "Michelle Remembers" about
Satanic Ritual Abuse memories. She came to therapist Pazder because she was in
distress over horrible dreams and a miscarriage.
1981
(A) Orbit Maneuvering System

Part of the plan to build the SPS space platforms was the demand for reusable
space shuttles since they could not afford to keep discarding rockets.
In 1981, The NASA Spacelab-3 mission of the Space Shuttle made "a series of
passes over a network of 5 ground based observatories" in order to study what
happened to the ionosphere when the Shuttle injected gases into it from the Orbit
Maneuvering System (OMS). They discovered that they could "induce ionospheric
holes" and began to experiment with holes made in the daytime or at night over
Millstone, Connecticut and Arecibo, Puerto Rico.
They experimented with the effects of,
"artificially induced ionospheric depletions on very low frequency wave

lengths, on equatorial plasma instabilities, and on low frequency radio
astronomical observations over Roberval, Quebec, Kwajelein, in the
Marshall Islands, and Hobart, Tasmania" (Advanced Space Research,
Vo1.8, No. 1, 1988).
(B) Eldon Byrd - who worked for Naval Surface Weapons, Office of Non-Lethal
Weapons - was commissioned in 1981 to develop electromagnetic devices for
purposes including 'riot control', clandestine operations and hostage removal.
"Byrd also wrote of experiments where behavior of animals was

controlled by exposure to weak electromagnetic fields. 'At a certain
frequency and power intensity, they could make the animal purr, lay
down, and roll over.'" (Keeler, Anna, "Remote Mind Control
Technology")
"Between 1981 and September 1982, the Navy commissioned me to

investigate the potential of developing electromagnetic devices that
could be used as non-lethal weapons by the Marine Corp for the
purpose of 'riot control', hostage removal, clandestine operations, and
so on." Eldon Byrd, Naval Surface Weapons Center, Silver Spring MD.
(from "Electromagnetic Pollution" by Kim Besly, p 12.)
(C) John Alexander supported the views of Thomas Bearden. Delivered a paper to
the 1981 national convention of the US Psychotronic Association
(D) General Albert Stubblebine. Former head of the U.S. Army Intelligence & Security
Command (INSCOM) 1981-84, Masters degree in chemical engineering from
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Columbia. He signed classified contracts with the Monroe Institute (Emerson, Steven,
Secret Warriors, G.P. Putnam's Sons, 1988, pg 103-4). Stubblebine often met with
Noriega while he was a U.S. intelligence asset (Emerson, 1988, pg 110-1).
Stubblebine was the former boss of Col. John Alexander, and the two have held
numerous "spoon-bending" parties. He is a friend of Lyn Buchanan [according to a
representative from PSI TECH, the two are not friends]. Stubblebine is married to
ufologist Rima Laibow. (Porter, Tom, Government Research into ESP & Mind Control,
March, 1996).
Soon after becoming head of INSCOM, Stubblebine began a program called the
"High Performance Task Force" - a series of methods to improve his officers'
performance. These ranged from the neuro-linquistic programming of Tony Robbins
to the hemisynch tapes of the Monroe Institute where Stubblebine often sent his
officers. (Schnabel, Jim, Remote Viewers: The Secret History of America's Psychic
Spies, Dell, 1997, pg 276)
Following an incident involving an officer having a psychotic episode at the Monroe

Institute, Stubblebine resigned in 1984. He was replaced by Major General Harry
Soyster (Schnabel, 1997, pg 316), formerly vice-president for 'Intelligence Systems'
of BDM of McClean, Virginia. As of 1992, Chairman of PSI-TECH.
"Laibow, Stubblebine, and ufologist Victoria Lacas (with [C.B. Scott] Jones in the
shadows) toured Europe and the Soviet Union, where they have established a
prodigious UFO/Psi network." (Durant, Robert J., "Will the Real Scott Jones Please
Stand Up?") Stubblebine gave a lecture at the International Symposium on UFO
Research - sponsored by the International Association for New Science - in Denver,
Colorado (May 22-25, 1992).
This gives a good example of Stubblebine's coherence (or lack thereof) and paranoia
(he often threatened to destroy the tape). Stubblebine claimed that none of the
members of the remote-viewing program had prior psychic abilities or interests (but
all other sources state that they did).
(E) In the Summer of 1981, Pat Delgado brought to the attention of the national
Press the existence of mysterious circular depressions in the fields at Cheesefoot
Head, Hampshire.
(F) Budd Hopkins published Missing Time with an afterward by therapist Aphrodite
Clamar. Hopkins book was about the in-depth investigation of 19 cases of UFO
abduction which he had undertaken in the previous 5 years.
(G) The first cases of AIDS are confirmed in homosexual men in New York, Los
Angeles, and San Francisco, triggering speculation that AIDS may have been
introduced via the Hepatitis-B vaccine.
1982
(A) In May 1982, Elisabeth and Russell Targ held a workshop on psychic
phenomena for 25 professionals.
This was part of a program with Stanislav Grof, who was studying non-chemical
alternatives for altered states of consciousness. The Targs goal was to show that
psychic experiences did not require an "altered state". (Targ, Russell and Harary,
Keith, Mind Race, Villard Books, 1984, pg 99). Grof served briefly as the branch
chief of the operational unit of Star Gate from around 1982 or 83 until he resigned in
summer of 1993.
(B) Electromagnetic weapons for law enforcement use in Great Britain.

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A 10-30 Hz strobe light which can produce seizures, giddiness, nausea, and fainting
was developed by Charles Bovill of the now defunct British firm Allen International.
Addition of sound pulses in the 4.0-7.5 Hz range increases effectiveness as utilized in
the Valkyrie - a "frequency" weapon advertised in British Defense Equipment
Catalogue until 1983.
The squawk box or "sound curdler" uses 2 loudspeakers of 350-watt output to emit 2
slightly different frequencies which combine in the ear to produce a shrill shrieking
noise. The U.S. National Science Foundation report says there is "severe risk of
permanent impairment of hearing." (From Electropollution by Kim Besley, citing the
Manchester City Council Police Monitoring Unit document.)
(C) Air Force review of biotechnology.
"Currently available data allow the projection that specially generated

radiofrequency radiation (RFR) fields may pose powerful and
revolutionary antipersonnel military threats. Electroshock therapy
indicates the ability of induced electric current to completely interrupt
mental functioning for short periods of time to obtain cognition for longer
periods and to restructure emotional response over prolonged intervals.
"... impressed electromagnetic fields can be disruptive to purposeful

behavior and may be capable of directing and/or interrogating such
behavior. Further, the passage of approximately 100 milliamperes
through the myocardium can lead to cardiac standstill and death, again
pointing to a speed-of-light weapons effect.
"A rapidly scanning RFR system could provide an effective stun or kill
capability over a large area." (From "Final Report on Biotechnology
Research Requirements for Aeronautical Systems Through the Year
2000". AFOSR-TR-82-0643, Vol 1, and Vol 2, July 30, 1982.)
1983
(A) Phoenix II / USAF, NSA:
Location: Montauk, Long Island

Electronic multi-directional targeting of select population groups
Targeting: Medium range
Frequencies: Radar, microwaves. EHF UHF modulated
Power: Gigawatt through Terawatt
Purpose: Loading of Earth Grids, planetary sonombulescence to stave off
geological activity, specific-point earthquake creation, population programming
for "sensitized" individuals
Pseudonym: "Rainbow", ZAP
(B) Nikolai Khokhlov - a Soviet KGB agent who defected to the West in 1976 -
interviews recently arrived scientists and reports that "The Soviet mind-control
program is run by the KGB with unlimited funds." (From The Spectator, Feb 5, 1983,
reported in "New World Order Psychotronic Tyranny" by C. B. Baker.)
(C) "Center Lane" was the codename for the operational unit of the remote-viewing
program, redesignated from Grill Flame in late 1983. Control of the unit shifted from
INSCOM's operation group to the more direct control of Albert Stubblebine. The unit
was known as INSCOM Center Lane Project (ICLP). (Schnabel, Jim, Remote
Viewers: The Secret History of America's Psychic Spies, Dell, 1997, pg 280)
In late 1983, 4 more individuals were recruited to Center Lane: Captain Ed Dames,
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Captain Bill Ray (counterintelligence specialist), Captain Paul Smith, and Charlene
Cavanaugh (civilian analyst with INSCOM). These four began a training program -
which started at The Monroe Institute - and concluded with personal training with Ingo
Swann. (Schnabel, 1997, pg 292-3)
After Gen. Stubblebine's retirement in 1984, Center Lane was completely without
support in the Army. Jack Vorona arranged for the unit to be transferred directly to
the DIA's Scientific and Technical Intelligence Directorate when Army funding ran out
in late 1985, at which time it was redesignated Sun Streak. Until that time, the unit
was given no official taskings (Schnabel, 1997, pg 319).
Center Lane started when Ingo Swann at SRI came across a breakthrough in his
techniques in 1983. He developed a training program and trained 6 military officers
(including Ed Dames) over a period of 6 months. After finishing the training in late
1983, the viewers returned and started applying their knowledge.
The unit was renamed 'Center Lane' with Dames as the operations and training
officer. "Dames took a 'let's see what this baby can do' approach, replacing the unit's
former intelligence collection methodology with the breakthrough technique." (Dames,
Ed, "Ed Dames Sets the Record Straight") [Keep in mind that Dames is a major
disinfo artist.]
1984
"USSR: New Beam Energy Possible?", possibly associated with early Soviet weather engineering
efforts over the U.S. (from "Tesla's Electromagnetics and Its Soviet Weaponization" by T.E.
Bearden.) According to former Reagan aide Barbara Honneger,
"the fundamental reason for the increased interest [in psi research] is initial results
coming out of laboratories in the United States and Canada that certain amplitude
and frequency combinations of external electromagnetic radiation in the brain-wave
frequency range are capable of bypassing the external sensory mechanism of
organisms - including humans - and directly stimulating higher-level neuronal
structures in the brain.
This electronic stimulation is known to produce mental changes at a distance,

including hallucinations in various sensory modalities - particularly auditory." (McRae,
Ronald, Mind Wars, St. Martin's Press, 1984, pg 136)
The overlap between these 2 fields can be described as:
Mis-identification:
Some ELF mind-control studies have been discussed under the heading of
"psychotronics". Many - myself included - don't agree with this label as there is no
psychic component in the study of the effects of electromagnetic radiation on the
central nervous system.
Coincidental Findings:
As in most scientific fields, research that is tangential for one project may be central
to another. Navy studies in ELF communications included a portion on possible health
effects. When these findings were revealed, the possibility of using ELF as a weapon
arose and studies were continued in that direction. However, we can't say that all of
the Navy's research into ELF radio was a front for mind-control as they have a
definite interest in communication with their submarines. The same may be true for
remote-viewing studies. Studies at SRI and elsewhere measured and analyzed
subject's brain waves, and also studied the effects of ELF waves as a possible
carrier for telepathic information.
Tech-Enhanced Psi:
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Some studies - especially those involving dolphins - tried to use technology to
enhance psychic phenomena. Most of this is pure bunk including most of the
inventions I've seen created by the Russians and the US Psychotronic Association.
Some of it resembles telepathy simulated by technology, such as the attempt to carry
signals from dolphins to humans via the "Neurophone". This would seem to fit better
under "Mis-identification".
Cover:
Remote-viewing - like UFOs - has been postulated by some researchers as being
used as a "cover story" for covert mind-control experiments. This plan would convince
the victims that the "voices" or sensory data they were unnaturally receiving was due
to channeling, telepathy, or remote-viewing. It would also have the "high-weirdness"
factor, which would preclude a serious treatment of the subject by the mainstream
media. However, I'm hesitant to lump the entire spectrum of government interest in
psi in this category.
Cutting Edge:
Both psychic ability and things like non-lethal weapons are considered to be on the
"cutting edge" of military theory. This is an alternative explanation as to why
individuals like John Alexander and David Morehouse are interested in both fields.
The degree to which these crossovers apply to specific cases are dealt with
individually, and to this subject as a whole in the conclusions.
1985
(A) Founded by Ed May, the Cognitive Sciences Laboratory was formed at SRI in
1985 and moved with May to SAIC. May and the Cognitive Sciences Laboratory are
currently at a "small start-up research place called the Laboratories for Fundamental
Research" (e-mail from Ed May, 8/7/96).
Joe McMoneagle is listed as a research associate. Other staff members include S.

James, P. Spottiswoode, Earling DeGraff, Nevin D. Lantz, Philip Wasserman, Laura
V. Faith, Ellen Messer, and Stephan A. Schwartz.
"I (Dean Radin) took a leave of absence from Bell Labs in 1985 and
spent that entire year at SRI International, working with Hal Puthoff and
Ed May.
Since then, I spent about half my time in academia (Princeton,

Edinburgh, UNLV) and half in industry (Contel Technology Center, GTE
Labs). My academic research was exclusively on psi phenomena, and
my industrial research included about 20% on psi.
"I'm not in favor of developing or using psi for any military purposes. But
unfortunately there are those in the World who would use psi as a
weapon if they could.
Thus, I reluctantly suppose that R& D on psi for intelligence and

possibly military purposes can be justified for defensive reasons. It
would be naive to think that someone, somewhere is not working on this
right now."
(Interview with the RetroPsychoKinesis Project)
(B) Since the early 1970s, Puthoff had been a part-time paid consultant to Bill Church
regarding alternative fuel sources. At Puthoff's urging, Church developed a company
(Jupiter Technologies) to research Zero-Point Energy. In the summer of 1985 after
giving only 2 weeks notice, Puthoff left SRI to work for Church full time. (Schnabel,
Jim, 1997, pg 323)
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(C) Women in the peace camps at Greenham Common began showing various
medical symptoms believed to be caused by EM surveillance weapons beamed at
them. (See "Zapping: The New Weapon of the Patriarchy", Resonance#13, pp 22-24.
Research by Woody Blue.)
(D) Innovative Shuttle Experiments

An innovative use of the Space Shuttle to perform space physics experiments in Earth
orbit was launched, using the OMS injections of gases to "cause a sudden depletion
in the local plasma concentration - the creation of a so-called ionospheric hole". This
artificially-induced plasma depletion can then be used to investigate other space
phenomena, such as the growth of the plasma instabilities or the modification of radio
propagation paths.
The 47 second OMS burn of July 29, 1985 produced the largest and most long-lived
ionospheric hole to date, dumping some 830 kg of exhaust into the ionosphere at
sunset. A 6-second, 68-km OMS release above Connecticut in August 1985
produced an airglow which covered over 400,000 square km.
During the 1980s, rocket launches globally numbered about 500-to-600 a year,
peaking at 1500 in 1989. There were many more during the Gulf War. The Shuttle is
the largest of the solid fuel rockets with twin 45-meter boosters. All solid fuel rockets
release large amounts of hydrochloric acid in their exhaust.
Each Shuttle flight injects about 75 tons of ozone-destroying chlorine into the
stratosphere. Those launched since 1992 inject even more ozone-destroying chlorine
(about 187 tons) into the stratosphere (which contains the ozone layer).
(E) Whitley Strieber publishes Communion.
(F) According to the journal Science (227:173-177), HTLV and VISNA - a fatal sheep
virus - are very similar, indicating a close taxonomic and evolutionary relationship.
1986
(A) Attorney General's Conference on Less Than Lethal Weapons

Reviews current weapons available. Most date back to 1972: the Taser; the Nova
XR-5000 Stun Gun (can interrupt a pacemaker); the Talon, a glove with an electrical
pulse generator; and the Source, a flashlight with electrodes at the base.
These devices are useful only at close range except for the Taser, and are generally
restricted to correctional institutions. Photic driving strobe lights tested by one
conference delegate on 100 subjects produced discomfort. Closed eyelids do not
block the effect. Evidence that ELF produces nausea and disorientation. Suggestion
to develop fast-acting electro sleep-inducing EM weapon. Discusses problem of
testing weapons on animals and human "volunteers".
(From "Report on the Attorney General's Conference on Less Than Lethal Weapons",
by Sherry Sweetman, March 1987, prepared for the National Institute of Justice.
Research by Harlan Girard.)
(B) "The Electromagnetic Spectrum in Low-Intensity Conflict" by Captain Paul Tyler,

MC, USN quotes the above passage and further elaborates on the theme. (Published
in Low Intensity Conflict and Modern Technology, Lt. Col. David J. Dean, USAF, ed.,
Air University Press, Maxwell AFB, AL. Research by Harlan Girard.)
(C) On 02/10/86, Cleve Backster's lab was visited by National Research Council's
Committee on Techniques for the Enhancement of Human Performance. The NRC
was evaluating enhancement and parapsychological studies conducted for the Army.
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So it is likely that Backster's research was involved with the Government. (National
Research Council, Enhancing Human Performance, National Academy of Sciences,
1988, pg 193-8)
(D) Mighty Oaks

In April 1986 just before the Chernobyl disaster, the U.S. had a failed hydrogen test
at the Nevada Test Site called "Mighty Oaks". This test - conducted far underground -
consisted of a hydrogen bomb explosion in one chamber with a leaded steel door to
the chamber (2 meters thick) closing within milliseconds of the blast.
The door was to allow only the first radioactive beam to escape into the "control
room" in which expensive instrumentation was located. The radiation was to be
captured as a weapon beam.
The door failed to close as quickly as planned, causing the radioactive gases and
debris to fill the control room and destroying millions of dollars worth of equipment.
The experiment was part of a program to develop X-ray and particle beam weapons.
The radioactive releases from Mighty Oaks were vented under a "licensed venting"
and were likely responsible for many of the North American nuclear fallout reports in
May 1986, which were attributed to the Chernobyl disaster.
(E) According to the Proceedings of the National Academy of Sciences

(83:4007-4011), HIV and VISNA are highly similar and share all structural elements
except for a small segment which is nearly identical to HTLV. This leads to
speculation that HTLV and VISNA may have been linked to produce a new retrovirus
to which no natural immunity exists.
(F) A report to Congress reveals that the U.S. Government's current generation of
biological agents includes modified viruses, naturally occurring toxins, and agents that
are altered through genetic engineering to change immunological character and
prevent treatment by all existing vaccines.
1987
(A) In 1987, Pandolfi invited UFOlogist Bruce Maccabee "to give a general lecture to
[CIA] employees on UFOs and MJ-12". (Maccabee's response to AIR)
(B) Department of Defense admits that despite a treaty banning research and
development of biological agents, it continues to operate research facilities at 127
facilities and universities around the Nation.
1988
(A) After retiring from the Army in 1988, John Alexander joined the Los Alamos
National Laboratories and began working with Janet Morris, the Research Director of
the U.S. Global Strategy Council (USGSC) chaired by Dr Ray Cline (deceased)
former Deputy Director of the CIA."
(B) The Pentagon is ordered by courts to cease EMP tests at several locations due
to a lawsuit filed by an environmental group. (From The Washington Post, May 15,
1988, see "US and Soviets Develop Death Ray", Resonance 11, p 10. Research by
Remy Chevalier.)
(C) Senator Claiborne Pell from Rhode Island. Member of the Council on Foreign
Relations and the Club of Rome. Decorated by the Knights of Malta. Along with
Charlie Rose, Pell is one of Washington's biggest supporters of psychic research.
In1988, he introduced a bill to get government funding for the New Age group the
National Committee on Human Resources (Al Gore was a co-sponsor). He is also on
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the advisory board of the International Association of Near-Death Studies and on the
board of the Institute of Noetic Sciences and the Human Potential Foundation.
For 7 years, Claiborne Pell employed C.B. Scott Jones as an aide (Gardner, Martin,
"Clairborne Pell: The Senator From Outer Space", Skeptical Inquirer, March/April
1996). Chairman of the Foreign Relations Committee. Pell was a close friend of BCCI
figure Clark Clifford. (Truell, Peter and Gurwin, Larry, False Profits, Houghton Mifflin
Company, 1992, pg 240)
1989
(A) MUFON appointed C.B. Scott Jones as a Special Consultant in International

Relations
(B) TRIDENT/ ONR, NSA:
Electronic directed targeting of individuals or populations

Targeting: Large population groups assembled
Display: Black helicopters flying in triad formation of three
Power: 100,000 watts
Frequency: UHF
Purpose: Large group management and behavior control, riot control Allied
Agencies: FEMA
Pseudonym: "Black Triad" A.E.M.C
(C) Human Potential Foundation founder and president C.B. Scott Jones. Board
members include Clark Sandground and Claiborne Pell. Received original funding
from Laurance Rockefeller. Passes funds from Rockefeller to UFO abduction
researcher John Mack. Worked with Dr. Igor Smirnov.
(D) Michael Persinger feels that he is able to replicate alien abduction and other
supernatural phenomena through the use of 3 solenoids (attached to a modified
motorcycle helmet) passing a magnetic pulse through the frontal lobes of the brain.
Solenoids are called "magnetic coils" by psychiatrists, who use them as a
non-intrusive alternative to implantable electrodes for stimulating the brain. (see
Hallett, Mark and Cohen, Leonardo, "Magnetism: a New Method for Stimulation of
Nerve and Brain", JAMA, 7/28/89, pg 530)
(E) John Alexander:
"I have served as chief of Advanced Human Technology for the Army
Intelligence and Security Command (1982-84) and - during the
preparation of the EHP [Enhancing Human Performance] report - was
director of the Advanced Systems Concepts Office at the U.S. Army
Laboratory Command."
Alexander stated that "..psychotronic weapons lack traditional scientific

documentation, and I do not suggest that research projects be carried
out in that field." (Alexander, Col. John, "A Challenge to the Report",
New Realities, March/April 1989)
(F) Psi Tech founded in 1989 by president Ed Dames. Their vice-president is Jonina
Dourif. A "John L. Turner" is listed as a monitor. Board Members include John B.
Alexander and Gen. Albert Stubblebine.
1990
(A) According to an anonymous BBC television reporter, Dr Louis West headed up

the medical oversight for the Ft. Meade remote-viewing operational unit.
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(Constantine, Alex, "'Remote Viewing' at Stanford Research Institute or Illicit CIA
Mind Control Experimentation?") West was also a "Member of the medical oversight
board for Science Applications International Corp. remote-viewing research in early
1990s.
(B) RF MEDIA/ 1990, CIA:
Electronic, multi-directional subliminal suggestion and programming

Location: Boulder, Colorado (Location of main cell telephone node, national
television synchronization node)
Targeting: national population of the United States
Frequencies: ULF VHF HF Phase modulation
Power: Gigawatts
Implementation: Television and radio communications, the "videodrome"
signals
Purpose: Programming and triggering behavioral desire, subversion of psychic
abilities of population, preparatory processing for mass electromagnetic
control
Pseudonym: "Buzz Saw" E.E.M.C.
(C) TOWER/ CIA, NSA:
Electronic cross country subliminal programming and suggestion

Targeting: Mass population, short-range intervals, long-range cumulative
Frequencies: Microwave, EHF SHF
Methodology: Cellular telephone system, ELF modulation
Purpose: Programming through neural resonance and encoded information
Effect: Neural degeneration, DNA resonance modification, psychic suppression
Pseudonym: "Wedding Bells"
(D) More than 1500 6-month old Black and Hispanic babies in Los Angeles are given
an "experimental" measles vaccine that had never been licensed for use in the United
States. CDC later admits that parents were never informed that the vaccine being
injected to their children was experimental.
1991
(A) SRIs remote viewing project moved to SAIC
(B) Desert Storm

According to Defense News, April 13-19, 1992, the US deployed an electromagnetic
pulse weapon (EMP) in Desert Storm, designed to mimic the flash of electricity from
a nuclear bomb. The Sandia National Laboratory had built a 23,000 square meter
laboratory on the Kirkland Air Force Base in 1989 to house the Hermes II electron
beam generator capable of producing 20 Trillion Watt pulses lasting 20-to-25
billionths-of-a-second. This X-ray simulator is called a "Particle Beam Fusion
Accelerator". A stream of electrons hitting a metal plate can produce a pulsed X-ray
or gamma ray. Hermes II had produced electron beams since 1974. These devices
were apparently tested during the Gulf War, although detailed information on them is
sparse.
1992
(A) Eldon Byrd told me [Dick Farley] about it [lawsuit w/ Randi] over dinner at C. B.
"Scott" Jones home one evening of several we spent together back in '92 and '93
there.
"Byrd said that Uri Geller put up $10,000 for his legal costs. Byrd and
Geller are good friends, from back in the '70s..."
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"Byrd says he had been "set-up" by postal inspectors - part of some

initiative to discredit him because he was too public with his personal
interests in "psi," etc. He'd allegedly had some Navy security clearance
issues dog him, which contributed to his early retirement as one of their
senior most civilian scientists."
"When he was still with the Navy, Dr. Byrd was the contract manager
for some of the research Michael Persinger did on 'neuro-impacts' of
various EMFs and ELFs. Something about wave-propagation and
influences on submariners if somebody "beeped" them with
mind-influencing EMF signals, etc. That kind of thing." (Farley, Dick,
"False Memory Spindrome")
(B) John Alexander. Last year, Alexander organized a national conference devoted to
researching "reports of ritual abuse, Near-Death Experiences, human contacts with
extraterrestrial aliens, and other so-called anomalous experiences", the Albuquerque
Journal reported in March 1993.
(C) December.
"The U.S. Army's Armament Research, Development, and Engineering

Center is conducting a one-year study of Acoustic Beam Technology ...
The command awarded the 1-year study to Scientific Applications and
Research Associates of Huntington Beach, CA. Related research is
conducted at the Moscow-based Andreev Institute." (From "U.S.
Explores Russian Mind Control Technology", by Barbara Opal, Defense
News, Jan 11-17, 1993. Research by Harlan Girard and others.)
(D) Dan Smith [the Aviary's physicist "Chicken Little"] was for a while engaged to
marry the illustrious Rosemary Ellen Guiley, who numbered Von Ward, Jones, Colin
Andrews, and a host of others on her "Center for Crop Circle Studies" advisory panel
back in '92-93. Rosie's moved ahead (upward?) to the angelic realms, following the
market and the money.
But she does have the corner on American expertise on Wicca, and her close
relationship with former (now retired) Defense Intelligence Agency (DIA) "weird desk"
and senior "applied anomalous" guy Dale Graff ... who was from my contacts with
Scott Jones'. [Aviary's Prince Hans Adam- & Laurence Rockefeller-funded retired
Naval Intel Cmdr. Cecil B. "Scott" Jones] Affiliated with Sen. Claiborne Pell, with Dale
Graff being the latter's "inside man" at the DIA.
The " Aquarium Conspiracy" by Dan Smith and Rosemary Ellen Guiley
In the beginning, there was "eschatology" - the branch of theology

dealing with the end times. Having spent many years first studying
physics and then metaphysics, Dan came to the conclusion that the
scientists have been looking at the World upside-down. Mind - not
matter - is the foundation for all realities. Moreover, the materialist
paradigm was in danger of imminent collapse, being subverted on the
inside by its own contradictions and on the outside by the growing body
of evidence for the paranormal.
Creating and maintaining a reality is no easy game. It requires a lot of

magic and a lot of conscious critters like ourselves who are pretty good
at collective self-deception. Fortunately - or perhaps unfortunately - our
particular reality game has about reached its natural conclusion, and we
are waking up to the fact that mind and matter are not separate. We
are undergoing an exciting-but-stressful revolution in our collective
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consciousness. This revolution - or global spiritual emergency - will
bring upheavals and overloads in our global consciousness that will
impact the material Earth for better-or-worse, and may quickly get
out-of-control. We also will be opening up to other realities that will be
impacting us as well.
Our present very tidy sense of 'reality' and its boundaries is due to
become much more fluid and permeable. Every spiritual tradition takes
very seriously its prophesies about the End of the World. But for the
first time, we are seeing these prophesies turning into believable
predictions of Earth and reality changes. That is how Dan fell from
physics into eschatology. [This last remark tells us that Rosemary is the
one doing the writing here.]
After experiencing numerous slammed doors among his former

scientific colleagues, he decided that the most logical place to find
fellow eschatologists would be in various intelligence agencies and
among investigators of the paranormal. Dan next addressed how to
communicate about the eschaton. Even a small hint that the
Government is worried about the End of the World might start a chain
reaction of panic, which could possibly serve as a trigger for the
eschaton.
On the other hand, people inside the Government might be wanting to

set up a kind of civil defense network vis-a-vis the eschaton. And so
they would be looking for people on the outside who could much more
freely network among the general public.
An important link in the communication chain is what has become known

as the "Aviary". This is the final link next to the public network, and so it
must be heavily disguised by its own surrealistic smoke screen. The
Aviary functions best by amplifying people's own misconceptions about
the paranormal. It does this by helping to overinflate individual pieces of
the puzzle so that particular investigators get pushed further into their
own blind alleys. People are encouraged to be so "distracted by the
trees that they fail to see the forest".
This cacophony by people looking for truth in all the strangest places
provides an excellent cover for the deadly serious business of clearing
the decks and battening down the hatches for the eschaton event. It is
like a Manhattan Project going on behind the scenes of alien grays and
praying mantises having sex with humans. However, this eschaton
conspiracy is being orchestrated by higher powers. And we don't mean
the "Committee of 300". Very few of the people even near the center of
the orchestration have a clear picture of what is coming down. But they
do know that something is coming, and that they will have front-row
seats. [note: Interesting that Guiley compares the government actions
behind the scenes to the Manhattan Project, since that resulted in the
most destructive weapon known to historical man up to that time. And
now, subconsciously, Ms. Guiley has revealed to us the agenda: Total
destruction of the masses of humanity except for those few elite who
"help the project" and "sign agreements" to keep secrets - such as
herself. "When you dance with the Devil, the Devil doesn't change - the
Devil changes YOU.]
The "Manhattan Project" relative to the eschaton is a global civilian

network of people who will serve as a lightning rod for the cosmic
energies coming in during the consciousness revolution. They will be
looking to channel these energies into expanded realities. Thus, they
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will provide a degree of protection for those people who can find their
places alongside the network.
Outside of the network, there will be greater levels of trauma and

confusion. The pieces of the network are already in place. The
remaining task is to properly activate and link the pieces into a critical
mass of awareness. This last step is now underway. This is how an
'Aviary' helps to spawn an 'Aquarium', and how 'birds' learn to swim.
The Aquarium is our business, and we are working to reach people who
are ready to be activated in the consciousness revolution.
And here Ms. Guiley has described exactly what the Cassiopeans have described for
us and have helped us to uncover - that the Negative Hierarchy has created the
New Age Movement, the Human Potential Movement, the "Contactee" and Gray
Abduction Phenomenon for the express purpose of locking the planet into total
Control - to make it a "headquarters" for the Lords of Darkness. And as the C's
have said regarding the "Higher Powers" that Ms. Guiley reverentially refers to
above:
A: At those levels, there is only one "Master."
Q: (L) "Those levels"? What 'levels'?
A: Levels that can hand down orders to bury or suppress. ... Those
who are at that level have been bought-and-paid for by both giving
knowledge of upcoming cataclysmic vents, and promised survival and
positions of power after. It is not difficult to realize that there is a body
of such types in positions of power already. Power is not only attractive
to such types, but they are also the kind most easily corrupted by it.
We also notice that Ms. Guiley has compared the process to that of "birds learning to
swim". In other words, she and Mr. Smith are giving their signature as part of the
Scale Gang - the Reptilian Overlords, as opposed to the Avian followers of the All
Giving Mother.
According to Dan Smith - who undoubtedly is privy to a wealth of accurate though not
widely known UFO information - this data is being released through him due to the
grave concern by high government officials about impending metaphysical
catastrophe - the eschaton, or the End of the World. What we see, however, is that
Dan Smith and Rosemary Ellen Guiley are being used to further the agenda of the
World Controllers who do, indeed, suspect the "End of the World", but have their own
plans to survive it at the expense of most of the human population. It is this agenda
that Ms. Guiley is now actively promoting in her writings and columns in Fate
Magazine, which has become an organ of COINTELPRO, etc. We do notice that Ms.
Guiley - like Whitley Strieber and the rest of the gang who play ball with the Matrix
Controllers - have NO TROUBLE whatsoever getting "30 books published" and
"hobnobbing" with the CIA.
1993
(A) John Mack:

According to Dick Farley - former aide to C.B. Scott Jones - Laurance Rockefeller
funneled "$194,000 to Mack's Harvard- affiliated Center for Psychology and Social
Change via the Washington, D.C. chartered Human Potential Foundation, Inc. in the
1993-1994 period. Mack's group then started "PEER" (Program for Exceptional
Experience Research) and operated an "alien abductee support group" who - among
other functions they served - became fodder for Dr. Mack's 1994 Abductions.
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According to Donna Bassett - who infiltrated Mack's abductee support group - the
Center for Psychology and Social Change (co-founded by Robert Jay Lifton) receives
$250,000 a year from Rockefeller. Rockefeller also gave $194,000 to PEER along
with various other donations. According to Bassett, Mack claims to have received
funding from an ex-CIA source.
(B) Kit Green.

Director of General Motor's Biomedical Research department. Attended closed
meetings with Dr. Igor Smirnov under the auspices of his membership in the National
Academy of Sciences panel on 21st Century Army Technologies. (Defense
Electronics, 7/93. Reprinted in Flatland). Smirnov gave a series of closed meetings in
Northern Virginia - starting on 3/17/93 - to the FBI, CIA, DIA, and ARPA concerning
Russian developments with a device that allegedly implanted thoughts in a subject's
mind. The FBI was considering using this device to implant the voice of God in David
Koresh's mind, telling him to surrender.
Other, non-intelligence participants included Dr. Richard Nakamura of the National

Institute of Health [note: I think he may now be the director]. This technology was
supposedly used by the Russians against civilians in Afghanistan and possibly on the
Red Army to prepare them for battle. The American rights to this technology is
owned by a Richmond, Virginia company called Psycotechnologies Corp. (Defense
Electronics, 7/93. Reprinted in Flatland #11)
(C) February 28, beginning of 51-day siege on the Branch Davidians at Waco Texas
which ended in the death of more than 80 people. Until this incident, the
electromagnetic weapons had kept a very low profile. But in the documentary video
"Waco: The Big Lie Continues", footage from the British Broadcasting (BBC) shows
at least 3 EM weapons used by U.S. Government agents. First, the noise generators
used against the Davidians. Second, a powerful strobe light, shown during a nighttime
sequence. And the third was the Russian psycho-acoustic weapon considered, but
agents deny use of this weapon against the Waco people. FBI agents met with Dr.
Igor Smirnov in Arlington, VA to discuss the possibility of using the weapon against
the Davidians. (from "A Subliminal Dr. Strangelove", by Dorinda Elliot and John Barry,
Newsweek, Aug 22, 1994).
Janet Reno is also publicly connected to John Alexander (e.g., the recent
"Non-Lethal Warfare" conference).
See also: The Man Who Knew Too Much - What really happened at Waco? Carlos
Ghigliotti thought he had the answer, and now he's dead. Was he a victim of
conspiracy, or his own obsession? Ghigliotti - an expert in thermal imaging - was
retained by the House Government Reform Committee last year to probe allegations
that FBI agents - despite their vehement assertions to the contrary - had fired their
weapons at members of the Branch Davidian sect, trapping helpless women and
children inside the burning compound on April 19, 1993. Last fall, I had quoted him in
The Post as saying that infrared surveillance tapes - as well as regular videos made
by the Media - contained proof that the FBI fired. "The gunfire ... is there, without a
doubt."
In March, he was finalizing his report to Congress. He also had been advising
attorneys waging a $100 million wrongful death suit against the Government on behalf
of the Davidians and their heirs. "I still have a lot of shocking evidence to show you,"
he wrote in a March 28 letter to Michael Caddell, the lead attorney in that case.
When his body was discovered, Ghigliotti's office got the scrutiny that Vince Foster's
warranted after his suicide. Police sealed the premises and carted off computers and
files. Rep. Dan Burton (R-Ind.) - whose committee had retained Ghigliotti - called
for "a full and thorough investigation." The Justice Department's special counsel on
Waco - John C. Danforth - asked a federal court to take control of all evidence from
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Ghigliotti's firm.
I'd spent hours in that workshop reviewing tapes on his 8-monitor JVC video console,
looking for evidence of Government perfidy in grainy images, debating theories while
his beloved cats - Simone and Sipowicz - lolled at our feet. Carlos could be
exasperating - brusque, inflexible and short-tempered, a fireplug of a guy who carried
himself like a street fighter - but he had a soft side. More than once, he admitted to
breaking down in tears while examining Waco evidence. Someone had to speak for
the dead, he told me that he believed with all his heart that he had finally uncovered
the Truth.
"I've solved the case," he announced during one of his calls in March,
urging me to come once again to his lab to review videotapes. "I know
exactly what happened."
But I was busy on other stories and never made it back. Now there was one more
mystery to unravel: Was Carlos the final victim of Waco?
The Russian government is offering to share with the United States - in a bilateral
Center for Psychotechnologies - the Soviet mind-control technology developed during
the 1970s. The work was funded by the Department of Psycho-Correction at the
Moscow Medical Academy.
"Acoustic psycho-correction involves the transmission of specific

commands via static or white noise bands into the human subconscious
..." The Russian experts - among them former KGB General George
Kotov - present in a paper a list of software and hardware available for
$80,000. (From Opal article, "U.S. Explores Russian Mind Control
Technology".)
(D) High Frequency Active Auroral Research Program, HAARP

The HAARP Program is jointly managed by the US Air Force and the US Navy and is
based in Gakona, Alaska. It is designed to "understand, simulate, and control
ionospheric processes that might alter the performance of communication and
surveillance systems". The HAARP system intends to beam 3.6 Gigawatts of
effective radiated power of hig- frequency radio energy into the ionosphere in order
to (warning: all of which follows may be disinformation):
Generate extremely low frequency (ELF) waves for communicating

with submerged submarines
Conduct geophysical probes to identify and characterize natural
ionospheric processes so that techniques can be developed to mitigate
or control them
Generate ionospheric lenses to focus large amounts of high
frequency energy, thus providing a means of triggering ionospheric
processes that potentially could be exploited for Department of
Defense purposes
Electron acceleration for infrared (IR) and other optical emissions
which could be used to control radio wave propagation properties
Generate geomagnetic field aligned ionization to control the
reflection/scattering properties of radio waves
Use oblique heating to produce effects on radio wave propagation,
thus broadening the potential military applications of ionospheric
enhancement technology
(E) During 1993, John Alexander and his team were working with Dr Igor Smirnov
1994
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(A) By controlling the nature of the magnetic fields and causing them to simulate brain
patterns, Persinger is able to stimulate strong emotions and hallucinations including
the illusion of touch and movement. (Blackmore, Susan, "Alien Abduction: The
Inside Story", New Scientist, 11/19/94, pg 29-31.) Persinger is shown demonstrating
this device on the British TV show Horizon entitled "Close Encounters", written-
and-narrated by Susan Blackmore. For their efforts, both Persinger and Blackmore
have been accused of being in the Aviary.) Persinger was on the board of advisors
for the False Memory Syndrome Foundation. Also an informal advisor to SRI's
remote-viewing program.
(B) As of 1994, Smirnov has worked at Moscow's Institute of Psycho-Correction

using subliminal technology as therapy for drug abusers and others. The Institute has
been strapped for cash after the fall of the Soviet Union, but it has refused to accept
business from the Russian Mafia. (Elliott, Dorinda and Barry, John, "A Subliminal Dr.
Strangelove", Newsweek, 8/22/94, pg 57) However, Smirnov works with the Human
Potential Foundation and John Alexander. [note: I'm not sure how Smirnov's device is
supposed to work.
Later reports claim it would work using inaudible, subliminal suggestions (spliced into
phone conversations in the case of David Koresh). The device is definitely supposed
to make the subject "hear" voices, as the FBI wanted to use Charlton Heston as the
voice of God. This is definitely a different strategy from other subliminal techniques
which are designed to produce mere suggestions.]
(C) With a technique called "gene tracking," Dr. Garth Nicolson at the MD Anderson
Cancer Center in Houston, TX discovers that many returning Desert Storm veterans
are infected with an altered strain of Mycoplasma incognitos - a microbe commonly
used in the production of biological weapons. Incorporated into its molecular structure
is 40 percent of the HIV protein coat, indicating that it had been man-made.
(D) Senator John D. Rockefeller (D-WV) issues a report revealing that for at least 50
years, the Department of Defense has used hundreds of thousands of military
personnel in human experiments and for intentional exposure to dangerous
substances. Materials included mustard and nerve gas, ionizing radiation,
psychochemicals, hallucinogens, and drugs used during the Gulf War.
1995
(A) James Randi:
"I told an audience at the annual meeting of the American Physical

Society about the hilarious claims that Eldon Byrd made in court
concerning important projects he'd been working on as a
parapsychologist. One was a wristwatch that would protect the lucky
wearer against the deadly effects of hairdryers and electric razors that
bombard the brain with those 60-Hertz electrical waves. The watch
would sense the phase of the offending waves and generate an
opposing field to protect the subject.... But by far the best laugh of the
trial was generated by Byrd when he proudly announced that as a
result of reading and believing the book The Secret Life of Plants, he
had a project going to train seaweed so that it could warn naval divers
of danger." (Randi Hotline, 3/27/95 )
(B) SAIC - military contractor, located in California. Click here for their home page. [I
couldn't find anything on remote viewing.] SAIC took over the research aspect of the
remote-viewing program from SRI when director Ed May and his Cognitive Sciences
Laboratory moved there in 1991.
"SAIC - previously indicted on 10 felony fraud counts by the Justice Department

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relating to its management of a Superfund toxic cleanup site - has several prominent
board members. Admiral Bobby Inman, former NSA Director and Deputy Director of
the CIA; Melvin Laird, Richard Nixon's Defense Secretary; and retired General Max
Thurman, Commander of the Panama Invasion. Previous board members include
Robert Gates, former CIA Director; William Perry, current [1995] Secretary of
Defense; and John Deutch, current [1995] CIA Director."
SAIC owns Network Solutions, Inc. (NSI), which in September, 1995 took over
control of Internet Domain Name registration from the National Science Foundation
("Spooks Spook Net Users", Paranoia, Issue 12, pg 26).
SAIC is also working with non-lethal weapons, but I haven't heard any details.
(Brandt, Daniel, Mind Control and the Secret State). U.S. Government admits that it
had offered Japanese war criminals and scientists - who had performed human
medical experiments - salaries and immunity from prosecution in exchange for data
on biological warfare research.
(C) Dr. Garth Nicolson uncovers evidence that the biological agents used during the
Gulf War had been manufactured in Houston, TX and Boca Raton, FL and tested on
prisoners in the Texas Department of Corrections.
1996
(A) NIDS established.

At one point, millionaire Robert Bigelow offered to provide funding to the tune of a
million dollars for a cooperative research effort of the "Big Three" of ufology -
MUFON (Mutual UFO Network), CUFOS (Center for UFO Studies), and FUFOR
(Fund for UFO Research). This effort - sometimes referred to as "the Coalition" - fell
apart reportedly when Bigelow tried to control the direction of the group. UFO skeptic
Philip Klass reportedly accused John Alexander of causing the break-up, although
Alexander denies it.
Maccabee has recently worked with the National Institute for Discovery Sciences
(NIDS) and probably worked with-or-near Eldon Byrd, as the two both worked at
the Naval Surface Weapons Center at the same time.
(B) Courtney Brown, author of Cosmic Voyage, Dutton, 1996. Brown was trained in
remote-viewing by Ed Dames and took courses at the Monroe Institute. Brown's
book details his psychic conversations with aliens and repeats allegations similar to
those made by Dames, Ingo Swann, Joe McMoneagle, and others. Among them are:
Martians live among us and seek our help to return home. They live in
South America and under the mountain Santa Fe Baldy.
Brown psychically contacted Jesus, Guru Dev, and Buddha.
The idea for the "Star Trek" television series was inspired by aliens to
get humanity accustomed to the idea of working with alien races in a
Federation.
Specific plot elements of the "Star Trek: Next Generation" series
were suggested to someone on the show via an implanted telepathy
device.
Many of Dames' claims concerning the Martians are presented in Brown's book. But
Brown implies that this is the first time any of this has been revealed to the remote-
viewers, even though the sessions took place in 1994. Dames made similar claims as
early as 1993 (see Stark, Debby, "Talking to Ed Dames", NM MUFON News,
June/July 1993)
Courtney Brown founded the Farsight Institute in 1995. The Institute teaches a
Scientific Remote Viewing course called "Farsight Voyager" which costs around
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$3,000.00. Here's the Institute's home page.
(C) Radin is currently working with Joe McMoneagle in a project involved with
remote-viewing future technology. (Compuserve On Line Conversation w/ Joe
McMoneagle, 1/4/96)
(D) Edgar Mitchell briefed then CIA director George Bush on the activities and
results of the Institute of Noetic Sciences (Mitchell, Edgar, The Way of the Explorer,
GP Putnam's Sons, 1996, pg 91).
(E) Department of Defense admits that Desert Storm soldiers were exposed to
chemical agents.
1997
(A) In April, 1997, millionaire Robert Bigelow donated $3.7 million dollars to the
University of Nevada to found the Bigelow Chair of Consciousness Studies, which
allows students to take undergraduate courses dealing with parapsychology for
college credit. These courses are related - though not formally linked - to Dean
Radin's research at the University's Consciousness Research Laboratory which
Bigelow once funded.
Tart is currently teaching at the University of Las Vegas as part of Robert Bigelow's
Bigelow Chair of Consciousness Studies (Patton, Natalie; "UNLV recruits authority in
ESP", Las Vegas Review-Journal, 7/10/97).
(B) 88 members of Congress sign a letter demanding an investigation into

bioweapons use and Gulf War Syndrome.
1999
(A) Michael Persinger:
"My research has not been 'funded by U.S. interests'. All of the money
for our human research for the last 30 years has been from my
personal income as a professor. The only funding ($10,000) we ever
obtained from the U.S. was from the U.S. Navy - thanks to Eldon Byrd
- to evaluate the effects of 0.5-Hz rotating magnetic fields upon the
degranulation of mast cells in the rat brain. The effect was small but
statistically significant." (Letter to Wes Thomas, 1/6/99)
(B) 2000 Terminal experiments are being carried out on women, babies, and men of
all ages.
SOURCES
Doc Hambone
Good source, impeccably documented. Unfortunately relies a lot on McRaes Mind Wars
which I have since found to be a little dubious. However, Hambone acknowledges this.
http//www.heart7.net/mcf/hambone/
A background to the HAARP project.

Prepared by Rosalie Bertell, Ph.D., GNSH
http://www.earthpulse.com/haarp/background.html
Health Freedom, Codex Issues

Subject: Major Electromagnetic Mind Control Projects: Timeline to Present
From: John Hammell jham@iahf.com
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JH: A little flaky but interesting
http://www.iahf.com/other/20011219a.html
Timeline: Electromagnetic Weapons

by Judy Wall, Editor, Resonance Newsletter
http://www.raven1.net/jwalltil.htm
Behind Closed Doors

http://www.mystae.com/epopteia/implantx.html
Return to COINTELPRO
Return to Temas / Sociopolitica
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USCA Third Circuit Case No. 17-1904 US District Court Case 17-0897 MOTION TO FILE EXHIBIT STAN J. CATERBONE AND THE NSA, OR NATIONAL SECURITY AGENCY, June 9, 2017

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USCA Third Circuit Case No. 17-1904 US District Court Case 17-0897 MOTION TO FILE EXHIBIT STAN J. CATERBONE AND THE NSA, OR NATIONAL SECURITY AGENCY, June 9, 2017

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A LANDMARK CASE OF OBSTRUCTION OF JUSTICE, CIVIL RIGHTS, AND INTELLECTUAL PROPERTY

IN THE UNITED STATES THIRD CIRCUIT COURT OF APPEALS

IN RE: STANLEY J. CATERBONE : 17-1904

MOTION TO FILE EXHIBIT

I Stanley J. Caterbone, APPEALANT , and appearing Pro Se, do hereby on this 9 th

Dated JUNE 9, 2017

17-1904 NSA EXHIBIT Page No. 1 of 462 Friday June 9, 2017

ACTIVE COURT CASES

17-1904 NSA EXHIBIT Page No. 2 of 462 Friday June 9, 2017

17-1904 NSA EXHIBIT Page No. 3 of 462 Friday June 9, 2017

UNITED STATES DISTRICT COURT

American Civil Liberties Union, American :

BRIEF ON BEHALF OF AMICI CURIAE STANLEY J. CATERBONE

I. STATEMENT OF INTEREST OF AMICUS CURIAE ......................3

II. BRIEF IN SUPPORT OF AMICI CURIAE STANLEY J. CATERBONE AND

STATEMENT OF INTEREST OF AMICUS CURIAE

BRIEF IN SUPPORT OF AMICUS CURIAE

ABC NEWS 20/20 FEBRUARY 1, 1991

[Hugh Downs, ABC News 20/20 Correspondent] Thank you Lynn.

For all of us here at ABC News, Good night.

Well be back with more, in a moment.

Ah, ah a fairly carefully drafted statement one would think.

[Stanley J. Caterbone, ISC Shareholder; Founder Executive Vice President of Financial

[Stanley J. Caterbone, ISC Shareholder; Founder Executive Vice President of Financial

[Stanley J. Caterbone, ISC Shareholder; Founder Executive Vice President of Financial

Keith, 407 U.S. at 313-14. There, the Court explained that

17-1904 NSA EXHIBIT Page No. 24 of 462 Friday June 9, 2017

17-1904 NSA EXHIBIT Page No. 25 of 462 Friday June 9, 2017

March 19, 2007

United States District Court

Dear Clerk of the Court:

17-1904 NSA EXHIBIT Page No. 26 of 462 Friday June 9, 2017

Lancaster New Era

Dems' inaction on FISA harmful

The Democratic-led House let a crucial government-eavesdropping

The House failed to adopt the bipartisan Senate version of the

"American citizens must understand, clearly understand that there's

Some Democrats apparently don't see it that way. They downplay

"This is not about protecting Americans. The president just wants to

While the eavesdropping can continue, the compliance requirement

As a result, the government has to go back to the old way of getting

To get a court order, the government has to prove "probable cause"

"More than likely we would miss the very information we need to

17-1904 NSA EXHIBIT Page No. 27 of 462 Friday June 9, 2017

We should be protecting the American people, not the terrorists.

2004-2007 Lancaster Newspapers

17-1904 NSA EXHIBIT Page No. 28 of 462 Friday June 9, 2017

17-1904 NSA EXHIBIT Page No. 29 of 462 Friday June 9, 2017

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